TPPA applies to case against attorneys related to previous litigation.

A claim that asserted defendant attorneys acted in their own self-interest when they represented another party in multiple lawsuits against plaintiffs fell within the ambit of the Tennessee Public Protection Act.

In Garner v. Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC, No. W2022-01636-COA-R3-CV (Tenn. Ct. App. Apr. 15, 2024), plaintiffs had been involved in over ten years of trust litigation. Defendant attorneys represented plaintiffs’ brother in the filing of these trust lawsuits against plaintiffs, and plaintiffs were successful in defending all the claims.

After plaintiffs and the brother apparently reconciled, plaintiffs filed this suit against the attorneys who filed the trust lawsuits on the brother’s behalf. Plaintiffs alleged that the attorneys acted in their own self-interest hoping to eventually recover a contingency fee, that they mislead the brother, that they threatened the brother to continue the litigation, and that plaintiffs were accordingly damaged. (Note that the brother filed a very similar lawsuit at the same time, wherein the Tennessee Court of Appeals ruled that a legal malpractice claim can fall within the TPPA).

Defendant attorneys filed a motion to dismiss along with a petition for dismissal under the Tennessee Public Protection Act (“TPPA”), Tennessee’s anti-SLAPP statute. The trial court denied the petition, ruling that the TPPA did not apply to this case. The Court of Appeals reversed that ruling.

The TPPA applies to claims “filed in response to a party’s exercise of the…right to petition,” and allows a defendant named in such a claim to file a petition for dismissal. Tenn. Code Ann. § 20-17-104(a). If the TPPA applies, the trial court should use a burden shifting analysis to determine whether dismissal is appropriate. Defendants asserted on appeal that this lawsuit was “based on, related to, or in response to” their “communications seeking review of an issue by a state judicial body,” and that the TPPA therefore applied. Tenn. Code Ann. § 20-17-105(a), -103(4). The Court of Appeals agreed.

Plaintiffs raised several arguments against application of the TPPA, all of which the Court rejected. First, plaintiffs claimed that their lawsuit was not “based on, related to, or in response to the lawsuits filed by [the brother] by and through [defendants].” The Court noted that this argument was “easily dispensed with” and that there was “no reasonable conclusion” except that the lawsuit here related to the previous trust suits.

Next, plaintiffs asserted that the TPPA did not apply because defendants were not parties to the trust lawsuits. The Court rejected the insertion of such a requirement, finding that “it would defy logic to impose a prior lawsuit burden” as requested by plaintiffs, as the language plaintiffs pointed to “applies not only to the right to petition, but also the right of free speech and the right of association.”

Third, plaintiffs argued that only the brother was petitioning in the previous litigation, so application of the TPPA here was barred. The Court pointed out that plaintiffs offered no case law to support this proposition, and instead stated that it “accept[ed] as true for the purpose of this appeal the trial court’s conclusion that, in general, an attorney representing a client in court is exercising the constitutional right to petition.” (internal citation omitted).

Finally, plaintiffs asserted that because the trust lawsuits were frivolous, they were not protected by the constitution. While there is truth to that proposition, the Court wrote that the allegation of frivolity did not prevent application of the TPPA. Instead, the frivolity of the lawsuits would be addressed in the second prong of the TPPA analysis.

The Court specifically rejected the trial court’s carving out of an exception to the TPPA for this case. Noting the broad language of the TPPA, the Court reversed the trial court and found that defendants had satisfied the first prong of the TPPA by showing that this matter was related to defendants’ right to petition. The Court remanded the case for further consideration of the TPPA analysis.

Many Court of Appeals cases have addressed the TPPA in recent months. As this opinion shows, the language of the TPPA is broad, and cases related to actions taken in previous lawsuits may come within its ambit.

The Court of Appeals released this opinion three months after oral arguments.


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