By The Law Offices of John Day, P.C. on Jun 30, 2021 07:23 am
When defendant filed a petition to dismiss a defamation case under the Tennessee Public Participation Act (TPPA), and plaintiff failed to respond by “establish[ing] a prima facie case for each essential element of the claim in the legal action,” dismissal was affirmed. Further, exclusive jurisdiction of the appeal of the TPPA dismissal rested in the Court of Appeals. In Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021), plaintiffs neurology clinic and neurologist filed this suit against defendant after defendant left a negative review of plaintiff doctor online. After non-suiting the first action, this case was filed in general sessions court, wherein plaintiffs alleged defamation and false light invasion of privacy. Defendant filed a petition to dismiss the case in its entirety, asserting first that plaintiffs failed to state a claim because they “failed to plead the substance of any statement over which they complained,” and that the statement “was not defamatory because it expressed only opinions and rhetorical hyperbole.” In addition, defendant argued that this case should be dismissed pursuant to the TPPA because the “review was a statement made in connection with a matter of public concern and that Plaintiffs’ lawsuit ‘qualifies as one filed in response to defendant’s exercise of the right to free speech.’” Defendant’s petition also asked that she be awarded costs, attorney’s fees, and sanctions pursuant to the TPPA. Defendant supported her petition with a personal affidavit stating that “her Yelp! review was based on her personal observations and that she had no reason to believe any of the statements in the review were false.” Plaintiffs responded to the petition by arguing that Tenn. Code Ann. § 20-17-101 et. seq., known at the TPPA, could not apply here because it was a rule of civil procedure, which is not applicable in sessions court. Plaintiffs, however, “did not address the substance of Defendant’s argument nor did Plaintiffs offer any countervailing proof in response to Defendant’s affidavit.” The general sessions court held a hearing on February 6, 2020, where plaintiffs continued to rely “solely on the theory that the TPPA is a rule of civil procedure that does not apply in general sessions court.” Six days after the hearing, plaintiffs filed a supplemental response where they argued for the first time that they “could prove a prima facie case for defamation and false light,” and they attached the doctor’s affidavit in support. The sessions judge ruled the following day, dismissing the claims pursuant to the TPPA and plaintiffs’ failure to respond to the petition to dismiss with any facts. The order, however, did not resolve defendant’s request for costs, attorney’s fees and sanctions.
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