Day on Torts
When a trial court’s denial of a TPPA petition for dismissal had been appealed, and the Court of Appeals had remanded the case with instructions for the trial court to enter an order containing sufficient findings of fact and conclusions of law, the plaintiff was not entitled to voluntarily dismiss the case without prejudice.
In Richman v. Debity, No. E2024-00919-COA-R3-CV (Tenn. Ct. App. May 21, 2025), the defendants’ request to their HOA to install a fence had been denied. In an effort to show that the HOA did not apply the rules consistently, the defendants took photos of the plaintiffs’ home and yard from the public street. Based on these photos, the plaintiffs filed this suit in general sessions court alleging harassment and invasion of privacy, and asking for a restraining order.
The defendants filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”), Tennessee’s anti-SLAPP statute. The trial court denied the TPPA petition to dismiss, and the defendants appealed that denial to the Court of Appeals pursuant to the statute’s provision that decisions thereunder are immediately appealable. The Court of Appeals found that the trial court’s “ruling does not indicate why the trial court dismissed the TPPA Petition within the context of the burden shifting mechanism found in Tennessee Code Annotated section 20-17-105(a) through (c).” The Court thus vacated the order and remanded the case with instructions for the trial court to enter an order containing sufficient findings of fact and conclusions of law.
Eight days after the Court of Appeals’ mandate, the plaintiffs filed a notice of nonsuit. Over the defendants’ objection, the trial court entered an order dismissing the case without prejudice. This appeal followed, with the Court of Appeals ruling that allowing the nonsuit was improper here.
This case, like a few before it, focused on the interplay between a plaintiff’s right to voluntarily dismiss a case under Rule 41.01 and a petition to dismiss filed under the TPPA. The plaintiffs argued that Flade v. City of Shelbyville, 699 S.W.3d 272 (Tenn. 2024) clearly established their right to take a nonsuit after a TPPA petition to dismiss had been filed, but the Court of Appeals wrote that Flade was distinguishable from the instant case. In Flade, the Tennessee Supreme Court pointed out that “at the time of the voluntary nonsuit…, the TPPA petition had not been argued or submitted to the trial court for decision.” Here, however, the trial court had denied the TPPA petition, the denial had been appealed, and the case had been remanded with a mandate for the trial court to make findings of fact and conclusions of law regarding the TPPA petition.
The Court wrote that “[b]ecause Defendants’ TPPA petition was finally submitted to and decided by the trial court long before Plaintiffs filed their notice of voluntary nonsuit, the notice came too late.” The Court looked to one of its earlier opinions, which stated that the provision in the TPPA making a decision on a petition to dismiss immediately appealable as of right meant that “an order granting or denying a TPPA petition is to be treated procedurally as a final judgment for the purpose of determining which court maintains jurisdiction over the matter on appeal,” and that in similar circumstances “the defendants maintain[ed] a vested right to appellate review of the trial court’s denial of their TPPA claim.” (quoting Long v. Beasley, No. M2024-00444-COA-R3-CV, 2025 WL 782310 (Tenn. Ct. App. Mar. 12, 2025).
The Court specifically noted that the trial court “was not at liberty to ignore [the Court of Appeals’] instruction on remand.” The Court stated that it “did not give its permission for the general sessions court to deviate from the terms of our mandate,” and that no “extraordinary circumstances appl[ied] here.” The Court therefore ruled that the trial court erred by allowing the plaintiffs to take a nonsuit, as the notice of voluntary nonsuit was “filed far too late.”
After denying both parties’ request for attorneys’ fees, the Court vacated the order dismissing the case and remanded to the trial court.
The TPPA is being litigated frequently, with the nuances of the statute continuing to take shape. Litigants whose claims fall under this statute would be wise to stay up-to-date on the most recent opinions interpreting and applying this statute.
This opinion was released three months after oral arguments in this case.