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When a litigant has filed a motion to dismiss pursuant to the Tennessee Public Participation Act (TPPA), that motion should be analyzed under the provisions of the TPPA rather than under the traditional Tennessee Rule of Civil Procedure 12 analysis.

In Reiss v. Rock Creek Construction, Inc., No. E2021-01513-COA-R3-CV, 2022 WL 16559447 (Tenn. Ct. App. Nov. 1, 2022), plaintiffs filed suit against defendant construction company related to defendant’s construction of plaintiffs’ residential home, and defendant filed a counterclaim, which was the claim at issue in this appeal. The counterclaim asserted claims for breach of contract, libel and slander based on statements allegedly made online and to third parties by plaintiffs about defendant.

After withdrawal of plaintiffs’ counsel, plaintiffs missing discovery deadlines, and the filing of a motion to dismiss by defendants, plaintiffs obtained new counsel and filed a motion to dismiss the defamation counterclaims under the TPPA. The trial court denied the TPPA motion to dismiss, and plaintiffs appealed this denial, which was vacated on appeal due to the trial court’s use of the wrong analysis.

The only issue on appeal was whether the trial court correctly denied plaintiffs’ TPPA motion to dismiss the defamation claims and whether that motion should be granted on remand. The Court of Appeals began its analysis with a brief overview of the TPPA, noting that it is Tennessee’s Anti-SLAPP statute and that it is “designed to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.” (internal citations omitted). The Court quoted from a previous case, explaining that a party may move for dismissal under the TPPA, and that “if the petitioning party makes a prima facie case that they have participated in protected activity under the TPPA, the court may then dismiss the action against them unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.” (quoting Tenn. Code Ann. § 20-17-105(a)(b); additional citation omitted). The Court further noted that in order for the TPPA to apply to the “exercise of the right of association” or the “exercise of the right of free speech,” the activity must be “connected with a matter of public concern.” (internal citation omitted).

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BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals.  Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county.   Each database is set up in the same format for ease of use.

For example, click on the link for Franklin County.  The opening page will give you population and demographic information for the county.  The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all courts.

The “Judges” tab has biographical and contact information for all judges in the county.

Get access to the leading Tennessee books on the law of torts and the law of civil trial at a savings of 50%.

BirdDog Law, the creation of John Day, is the go-to resource for Tennessee judges, lawyers and paralegals.  It is the host website for John’s books, and provides numerous free resources that help you in the daily practice of law. This Black Friday sale gives you the opportunity to access John’s  books at 50% off the  normal price.

Day on Torts – Leading Cases on Tennessee Tort Law helps you quickly locate the leading case on over 500 selected tort topics and gives you links to thousands of related cases.  Updated as new decisions are released, the book will save you time and money by letting you put your finger on controlling case law.  Subscriptions available annually (best value – two free months) or monthly.  Review the Table of Contents and a sample chapter.

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals.  Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county.   Each database is set up in the same format for ease of use.

For example, click on the link for Williamson County.  The opening page will give you population and demographic information for the county.  The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all courts.

The “Judges” tab has biographical and contact information for all judges in the county.

Penny White, Joe Riley and I will be hosting our annual  15-hour seminar program again the Fall.   The program will be held in-person in Knoxville (Dec. 8-9)  and Memphis (Dec. 15-16).

Each program provides the fifteen (15) hours required CLE and includes three (3) hours of ethics/ professionalism/dual credit on Friday afternoon. You may register for both days (15 hours), one and a half days (11 hours), one day (7.5 hours), or one-half day (4 hours).  Click here for a listing of the topics addressed at the seminar.

We will also be offering the same 15 hours of CLE via video.  Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals.  Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county.   Each database is set up in the same format for ease of use.

For example, click on the link for Wayne County.  The opening page will give you population and demographic information for the county.  The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all courts.

The “Judges” tab has biographical and contact information for all judges in the county.

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals.  Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county.   Each database is set up in the same format for ease of use.

For example, click on the link for Wilson County.  The opening page will give you population and demographic information for the county.  The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

BirdDog Law offers a large variety of free information to Tennessee lawyers and paralegals.  Among the free resources are 95 databases, one for each Tennessee county, that share information about the operation of the court system in that county.   Each database is set up in the same format for ease of use.

For example, click on the link for Sumner County.  The opening page will give you population and demographic information for the county.  The “Court Clerks and Related Information” has contact information for each court clerk, the clerks’ websites, the local rules of court, e-filing information, docket information, and filing fee information for all six courts.

The “Judges” tab has biographical and contact information for all eight judges in the county.

Where plaintiff tripped on an uneven sidewalk and brought a GTLA premises liability suit against defendant city, plaintiff could not show constructive notice because she could not show how long the condition had existed.

In Mitchell v. City of Franklin, Tennessee, No. M2021-00877-COA-R3-CV, 2022 WL 4841912 (Tenn. Ct. App. Oct. 4, 2022), plaintiff was leaving a church service and walking on sidewalks owned by defendant city when she tripped and fell. Plaintiff alleged that her fall was caused by an “abrupt change of elevation caused by a raised portion of the sidewalk.” Plaintiff filed a GTLA case against the city, and the trial court ultimately entered judgment in favor of the city, which was affirmed in part and reversed in part on appeal. Of note, the city remediated this sidewalk condition after plaintiff’s fall, and no measurement of the height variation was taken at any time prior to the remediation.

Two sections of the GTLA were potentially implicated in this action. Tenn. Code Ann. § 29-20-205 “removes immunity for injury caused by the negligence of a public officer or employee,” but the statute lists several exceptions, including that immunity is not removed for the performance or failure to perform a discretionary function (subsection (1)) or for the failure to make or negligent performance of an inspection (subsection (4)). The trial court granted summary judgment under this statute, finding that plaintiff could not prove liability due to these exceptions, and review of this issue was waived on appeal. The Court of Appeals pointed out, however, that “liability for injuries under section 29-20-203 caused by a defective, unsafe, or dangerous condition is not subject to the exceptions of section 29-20-205” and that “the City’s immunity may still be removed under section 29-20-203 even though it retained immunity under section 29-20-205.” (internal citation omitted).

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The Tennessee Court of Appeals has ruled that where a vegetation management company contracted by the county electric service was only contractually responsible for a maintaining a certain area, and the diseased tree that allegedly fell and caused a fire was outside that area, the vegetation management company “owed no duty to prune” the tree and was not liable for the fire or the damages caused thereby.

In Allstate Property & Casualty Insurance Company v. Sevier County Electric System, No. E2021-01085-COA-R3-CV, 2022 WL 3589838 (Tenn. Ct. App. Aug. 23, 2022), several insurance companies filed suit against the City of Sevierville, Sevier County Electric System (SCES), and Wolf Tree, who was SCES’s vegetation management contractor (the cases filed by the insurance companies were consolidated). Plaintiffs asserted claims for negligence, nuisance and trespass based on damage to property they insured caused by a fire which was allegedly started when a diseased tree fell on an electrical service conductor. Continue reading