Day on Torts
Dismissal under the TPPA was affirmed where the plaintiff did not attempt to establish a prima facie case after the TPPA petition to dismiss was filed.
In Secure Air Charter, LLC v. Barrett, No. M2025-00312-COA-R3-CV (Tenn. Ct. App. Feb. 19, 2026), the defendant filed reports with the FAA after being terminated by the plaintiff. Based on these filings, the plaintiff filed this case against the defendant, asserting claims for tortious interference with business relationships.
The defendant filed a petition to dismiss under the Tennessee Public Participation Act (“TPPA”). The defendant argued that his filing of the FAA reports constituted him exercising his right to petition and right to free speech, so the TPPA applied. The defendant attached his own declaration to the petition, which stated that he filed the reports “to encourage review of an issue by a federal governmental body, and in the hopes of protecting the public.” In response to this petition, the plaintiff did not present any evidence or attempt to make a prima facie case. Instead, the plaintiff argued that the declaration was inadmissible and filed a motion to amend its complaint to instead assert a breach of contract claim.
After a hearing, the trial court allowed time for the plaintiff to engage in discovery regarding what the FAA reports contained. When the FAA responded to the plaintiff’s request citing the procedure necessary for the plaintiff to obtain the information, the plaintiff took no further action.
The trial court eventually granted dismissal under the TPPA. The court found that the TPPA applied and that the plaintiff had failed to make a prima facie case. In addition, the trial court denied the plaintiff’s motion to amend, finding that the motion was moot and that the amendment would be futile. The rulings were affirmed on appeal.
The Court of Appeals first analyzed the denial of the motion to amend. The trial court had denied the amendment on two grounds—mootness and futility. In its appellate brief, however, the plaintiff only argued that the amendment would not have been futile. The plaintiff did not address mootness. “Where an independent alternative ground for the ruling is unchallenged on appeal, a reasonable course for an appellate court is simply to affirm the trial court’s ruling.” (internal citations omitted). Because the plaintiff failed to address the ruling that the motion to amend was moot, denial of the motion to amend was affirmed.
The plaintiff next argued that the defendant’s TPPA petition should not have been granted because the declaration from the defendant should not have been considered. The plaintiff argued that the declaration constituted inadmissible lay witness opinion testimony, and that the trial court erred in relying on it in determining that the defendant met his initial burden of showing that the TPPA applied. The Court of Appeals stated, however, that the complaint itself established that the claim was based on the defendant’s filing of FAA reports. The Court stated that the plaintiff had “never advanced any argument that making a safety report to the FAA is not protected activity,” and that the trial court properly determined that the TPPA applied.
Further, the Court ruled that the defendant’s declaration was admissible. The Court wrote that the “declaration confirms the Complaint’s allegations, and these allegations constitute admissions that the lawsuit was filed in response to safety reports made to the FAA.” (internal citation omitted). Because the “relevant substance of the declaration—that the lawsuit was filed in response to [the defendant’s] reports to the FAA regarding safety—was admitted in [the plaintiff’s] Complaint,” the argument that the declaration was inadmissible was “ineffective.” In addition, the declaration did not contain inadmissible lay opinion testimony, as it only contained facts about the actions the defendant took after his termination. The Court wrote that the plaintiff’s disagreement with the accuracy of the defendant’s factual statements did not “convert the factual assertion into an opinion.” (internal citation omitted).
Because the TPPA applied, and the plaintiff failed to make a prima facie case for its claims, the trial court’s ruling was affirmed. The Court of Appeals remanded the case for an award of appellate attorneys’ fees to the defendant pursuant to the TPPA attorney’s fees provision.
The TPPA continues to be heavily litigated, as defendants in Tennessee turn to this new statute more often. A plaintiff faced with a TPPA petition to dismiss must prepare to make a prima facie case to support his or her claims, as failure to do so can result in dismissal and an award of attorneys’ fees to the defendant.
This opinion was released 1.5 months after oral arguments in this case.