11/01/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 19, 2022 Session
RACHEL REISS ET AL. v. ROCK CREEK CONSTRUCTION, INC.
Appeal from the Circuit Court for Knox County
No. 2-387-20 William T. Ailor, Judge
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No. E2021-01513-COA-R3-CV
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This appeal involves a counterclaim asserting defamation filed by the original defendant,
a construction company, concerning statements that the original plaintiffs/homeowners
made online and to third parties that were allegedly damaging to the construction
company’s reputation. The homeowners sought dismissal of the defamation claims
pursuant to Tennessee Code Annotated § 20-17-101, et seq., known as the Tennessee
Public Participation Act (“TPPA”). The trial court denied the homeowners’ motion to
dismiss and ultimately entered judgment against them. The homeowners have appealed
solely the trial court’s denial of their motion to dismiss. Determining that the trial court
should have analyzed the motion to dismiss pursuant to the provisions of the TPPA rather
than applying a traditional Tennessee Rule of Civil Procedure 12 analysis, we vacate the
court’s denial of the motion to dismiss and remand for further proceedings. We also
vacate the trial court’s monetary award to the defendant construction company and
remand that issue for further consideration once the motion to dismiss has been properly
adjudicated.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Paul E. Tennison, Jake VanAusdall, and Andy Goldstein, Brentwood, Tennessee, for the
appellants, Rachel Reiss and Thomas Gomiela.1
John B. Dupree, Knoxville, Tennessee, for the appellee, Rock Creek Construction, Inc.
1
Subsequent to the filing of briefs and presentation of oral arguments in this matter, the appellants’
attorneys filed a motion to withdraw from their representation of the appellants on October 13, 2022.
This Court granted such motion on October 24, 2022.
OPINION
I. Factual and Procedural Background
This action stems from issues that arose during the construction of a residential
home in Knox County. The original plaintiff, Rachel Reiss, filed a civil warrant in Knox
County General Sessions Court on March 16, 2020, naming Rock Creek Construction,
Inc. (“Rock Creek”), as the defendant. In this warrant, Ms. Reiss asserted claims of
breach of contract, property damage, and theft against Rock Creek, the building
contractor responsible for constructing her home. Ms. Reiss claimed that she had
incurred damages in the amount of $25,000.00. Rock Creek filed a counterclaim against
Ms. Reiss and her husband, Thomas Gomiela (collectively, “Homeowners”), initiating
causes of action of breach of contract, libel, and slander. Regarding the defamation
claims, Rock Creek alleged, inter alia, that Homeowners had published defamatory
statements concerning Rock Creek online and to third parties.
On October 23, 2020, Homeowners’ counsel filed a notice of withdrawal from his
representation of Homeowners. Rock Creek subsequently filed an application to remove
the action to Knox County Circuit Court (“trial court”) due to the action’s complexity.
The certificate of service on this motion reflects that Rock Creek’s counsel sent a copy of
the motion to Homeowners via the United States Postal Service.
On February 3, 2021, the trial court entered an order, pursuant to Tennessee Rule
of Civil Procedure 37.01, compelling Homeowners to respond to discovery requests filed
by Rock Creek. In this order, the trial court stated that Rock Creek had filed a motion to
compel on January 12, 2021, although such motion does not appear in the appellate
record. Subsequently, on March 23, 2021, the trial court entered an order deeming
admitted certain requests for admission sent to Homeowners by Rock Creek, pursuant to
Tennessee Rule of Civil Procedure 36, based on Homeowners’ failure to timely respond. 2
This order recites that Rock Creek filed a motion on January 13, 2021, asking that its
previously transmitted requests for admission be deemed admitted. Rock Creek
thereafter filed a motion seeking to strike Homeowners’ pleadings, dismiss Homeowners’
claims, and enter default judgment in favor of Rock Creek. In this motion, Rock Creek
claimed that Homeowners had ignored the discovery requests sent to them as well as the
trial court’s orders. Each of these orders or pleadings bears a certificate of service
demonstrating that copies were sent to Homeowners’ address via the United States Postal
Service.
On April 9, 2021, Homeowners’ current counsel filed a notice of appearance.
Subsequently, on April 16, 2021, Homeowners filed a motion seeking relief from the trial
2
These requests for admission also do not appear in the appellate record.
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court’s orders entered on February 3 and March 23, 2021. Homeowners claimed that
after their initial attorney withdrew from representation in October 2020, they were
proceeding pro se for a period of time. According to Homeowners, they did not receive
the discovery requests sent by Rock Creek or the trial court’s February 3, 2021 order.
Homeowners opined that there had been a problem with their mail delivery because their
home had been recently constructed. Homeowners stated that upon receipt of the trial
court’s March 23, 2021 order, they had retained their current counsel, who filed the
motion on Homeowners’ behalf. Homeowners sought relief from the prior orders
pursuant to Tennessee Rules of Civil Procedure 59 and 60 based on their lack of notice.
Both Homeowners filed individual declarations respectively stating that they had
received nothing in the mail concerning the case prior to their receipt of the March 23,
2021 order.
On April 29, 2021, Rock Creek filed a response to Homeowners’ motion seeking
relief from the trial court’s previous orders. Disputing Homeowners’ affidavits
concerning lack of notice, Rock Creek averred that the discovery documents were hand
delivered and placed inside Homeowners’ mailbox on December 9, 2020. Rock Creek’s
response was supported by an affidavit from their counsel, who stated that he personally
hand delivered the discovery documents and placed them in Homeowners’ mailbox on
December 9, 2020, at 5:15 p.m. Rock Creek’s counsel also attached photographs of
Homeowners’ mailbox containing the hand-delivered documents.
On May 11, 2021, Homeowners filed a motion seeking partial dismissal of Rock
Creek’s counterclaim. Homeowners argued that Rock Creek’s defamation claims
constituted a violation of the TPPA, codified at Tennessee Code Annotated § 20-17-101,
et seq. (2021), and that Rock Creek filed the defamation claims to retaliate against
Homeowners for exercising their right to free speech. Tennessee Code Annotated § 20-
17-102 (2021) provides:
The purpose of [the TPPA] is 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. This chapter is consistent with and necessary to
implement the rights protected by the Constitution of Tennessee, Article I,
§§ 19 and 23, as well as by the First Amendment to the United States
Constitution, and shall be construed broadly to effectuate its purposes and
intent.
Tennessee Code Annotated § 20-17-104 (2021) specifically states that if “a legal action is
filed in response to a party’s exercise of the right of free speech” “that party may petition
the court to dismiss the legal action.”
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According to Homeowners, any information they publicly posted concerning Rock
Creek reflected their “truthful opinion of their experiences and interactions with . . . Rock
Creek.” Homeowners further averred that they had exercised their protected right to
freedom of speech to “let the public know of their negative experience with Rock Creek.”
Homeowners therefore contended that Rock Creek’s defamation claims fell within the
purview of the TPPA and should be dismissed with prejudice. Homeowners also sought
an award of attorney’s fees and sanctions.
On November 29, 2021, the trial court entered an order denying Homeowners’
motion seeking relief from the court’s February 3 and March 23, 2021 orders. The court
stated that inasmuch as Homeowners had predicated their request for relief upon
excusable neglect, asserting that their mail had been mis-delivered, and Rock Creek had
rebutted this contention by proving, via affidavit and photographic evidence, that the
documents were left in Homeowners’ mailbox, the motion for relief should be denied.
The trial court concomitantly entered an order denying Homeowners’ motion for a
partial dismissal of Rock Creek’s defamation claims. In this order, the court stated in
pertinent part:
In [Homeowners’] Partial Motion to Dismiss and Tenn. Code Ann. §
20-17-104(a) Petition to Dismiss Rock Creek’s Defamation Claims
Pursuant to the Tennessee Public Participation Act, [Homeowners] argue
that [Rock Creek] has not proven its prima facie case of defamation
because [Rock Creek] did not suffer actual damages, the statements made
by [Homeowners] were not factually false, and that the comments that were
made did not meet the publication requirement of having been
communicated to a third party. [Rock Creek] has provided evidence (in Ex.
1) of statements made online to third parties that they claim to be
defamatory in that they harmed [Rock Creek’s] reputation and caused
damages.
A motion to dismiss tests the legal sufficiency of a complaint, not
the strength of the plaintiff’s proof or evidence taking the allegations in the
complaint as true for purposes of the motion. It does not address the facts
of the case and the court must look at the motion in the light most favorable
to the non-moving party.
After review of the Motion based on the allegations raised in the
original civil warrant and the counter-complaint, the Court is of the opinion
that the motion is not well taken.
The following day, the trial court entered an order granting Rock Creek’s pending
motion by striking Homeowners’ pleadings, dismissing Homeowners’ claims, and
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granting default judgment against Homeowners. In its order, the court stated in relevant
portion:
Upon review of [Rock Creek’s] Motion at issue and [Homeowners’]
Response thereto, the Court finds that [Homeowners’] response relies upon
their prior Motion to Alter or Amend to refute [Rock Creek’s] Motion at
issue. [Homeowners’] Motion to Alter or Amend was denied by this Court
as a result of the totality of the circumstances in this case, in large part that
[Homeowners] alleged and swore “under penalty of perjury” that they
believe that the USPS has been misdelivering their mail. However, [Rock
Creek] provided photographic proof that the documents that gave rise to the
Court’s earlier Order were hand-delivered to [Homeowners’] mailbox.
Therefore, admissions have been deemed admitted that there was no breach
of contract by [Rock Creek], that no damages had been incurred by
[Homeowners], that [Rock Creek] had suffered damages as a result of
[Homeowners’] breach of contract in the amount specified in [Rock
Creek’s] invoice (Ex. 1), that [Homeowners] knowingly made false
statements to third parties, and that [Rock Creek] was damaged as a result
of those defamatory statements. Therefore, after considering [Rock
Creek’s] motion and [Homeowners’] response,
IT IS HEREBY ORDERED that [Homeowners’] pleadings be
struck, Plaintiff’s Civil Warrant against [Rock Creek] be dismissed, and
default judgment be entered against [Homeowners] in the amount of
$16,015.10 plus court costs and attorneys’ fees pertaining to
[Homeowners’] admitted breach of contract.
Homeowners timely appealed.
II. Issues Presented
Homeowners present the following issues for this Court’s review, which we have
restated slightly:3
1. Whether the trial court erred in denying Homeowners’ partial motion
to dismiss filed pursuant to the TPPA.
2. Whether Homeowners’ partial motion to dismiss should be granted
upon remand.
3
We note that Homeowners have not appealed the trial court’s dismissal of their claims against Rock
Creek of breach of contract, property damage, or theft.
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3. Whether Homeowners should be awarded reasonable attorney’s fees
incurred in this appeal.
III. Standard of Review
Homeowners request that this Court review the trial court’s denial of their partial
motion to dismiss Rock Creek’s defamation claims, which motion was filed pursuant to
the dismissal provision contained within the TPPA. Inasmuch as our analysis involves
issues of statutory construction and interpretation, we will adhere to the following
longstanding principles:
When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a
statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.”
Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any
interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at
the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009). “Moreover, when an issue
on appeal requires statutory interpretation, we review the trial court’s decision de novo
with no presumption of correctness.” Nationwide Mut. Fire Ins. Co. v. Memphis Light,
Gas & Water, 578 S.W.3d 26, 30 (Tenn. Ct. App. 2018).
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IV. Denial of Homeowners’ Partial Motion to Dismiss
Homeowners urge that the trial court erred in denying their partial motion to
dismiss, which motion was predicated on the dismissal provision contained in the TPPA.
In support, Homeowners posit that Rock Creek’s counterclaim asserting, in pertinent part,
defamation was filed in response to Homeowners’ exercise of their constitutional right to
free speech. Homeowners therefore contend that the court should have dismissed Rock
Creek’s defamation claims in accordance with the TPPA’s provisions.
In order to better understand Homeowners’ postulate, some historical background
concerning the TPPA is necessary. As this Court has recently explained:
The underlying matter involves the application of Tennessee’s Anti-
SLAPP law, the TPPA . . . . SLAPP suits are lawsuits used “as a powerful
instrument of coercion or retaliation” against a defendant, George W. Pring
& Penelope Canan, “Strategic Lawsuits Against Public Participation”
(“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12
BRIDGEPORT L. REV. 937, 942 (1992) (quoting Bill Johnson’s Rests.,
Inc. v. NLRB, 461 U.S. 731, 740-41, 103 S. Ct. 2161, 76 L.Ed.2d 277
(1983)), and anti-SLAPP legislation such as the TPPA is designed to
counteract such lawsuits and prevent “meritless suits aimed at silencing a
plaintiff’s opponents, or at least diverting their resources.” John C. Barker,
Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 LOY.
L.A. L. REV. 395, 396 (1993).
Enacted in 2019, the TPPA 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.” Tenn. Code Ann. § 20-17-102. As with
the typical design of anti-SLAPP statutes, the TPPA works to “discourage[]
and sanction[] frivolous lawsuits and permits the early disposition of those
cases before parties are forced to incur substantial litigation expenses.”
Todd Hambridge et al., Speak Up., 55 Tenn. B.J. 14, 15 (2019). Although
it has been noted that Tennessee had a limited anti-SLAPP statute before
the TPPA, the TPPA “broadens anti-SLAPP protection.” Id.
The TPPA provides relief for parties who partake in protected
activity constituting either the exercise of the right of association, the
exercise of the right of free speech, or the exercise of the right to petition.
Tenn. Code Ann. §§ 20-17-104(a), 20-17-105. Specifically, 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
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against them, “unless the responding party establishes a prima facie case for
each essential element of the claim in the legal action.” Tenn. Code Ann. §
20-17-105(a)(b). The TPPA also provides definitions as to what constitutes
these forms of protected activity. For example, an “exercise of the right of
association” is an “exercise of the constitutional right to join together to
take collective action on a matter of public concern that falls within the
protection of the United States Constitution or the Tennessee Constitution.”
Tenn. Code Ann. § 20-17-103(2). An “exercise of the right of free speech”
means “a communication made in connection with a matter of public
concern or religious expression that falls within the protection of the United
States Constitution or the Tennessee Constitution.” Tenn. Code Ann. § 20-
17-103(3). Finally, an “exercise of the right to petition” means “a
communication that falls within the protection of the United States
Constitution or the Tennessee Constitution and: (A) Is intended to
encourage consideration or review of any issue by a federal, state, or local
legislative, executive, judicial, or other governmental body; or (B) Is
intended to enlist public participation in an effort to effect consideration of
an issue by a federal, state, or local legislative, executive, judicial, or other
governmental body[.]” Tenn. Code Ann. § 20-17-103(4).
Notably, the definitions above reveal that both the “exercise of the
right of association” and the “exercise of the right of free speech” require
that the activity be connected with a “matter of public concern.” Tenn.
Code Ann. § 20-17-103(2-3). As defined by the statute, a “matter of public
concern” includes issues relating to: “(A) Health or safety; (B)
Environmental, economic, or community well-being; (C) The government;
(D) A public official or public figure; (E) A good, product, or service in the
marketplace; (F) A literary, musical, artistic, political, theatrical, or
audiovisual work; or (G) Any other matter deemed by a court to involve a
matter of public concern.” Tenn. Code Ann. § 20-17-103(6). As should be
evident—and as some commentators have already observed—matters of
public concern are “broadly defined” under the statute. Todd Hambridge et
al., Speak Up., 55 Tenn. B.J. 14, 15 (2019). Unlike the enumerated
categories pertaining to “the exercise of the right of association” and the
“exercise of the right of free speech,” the “exercise of the right to petition”
contains no statutory qualifier requiring that the activity involve a “matter
of public concern.” Again, under the statute, “exercise of the right to
petition” simply means a “communication” that is constitutionally protected
and is “intended to encourage consideration or review of an issue” by some
form of governmental body or is “intended to enlist public participation in
an effort to effect consideration of an issue” by a governmental body.
Tenn. Code Ann. § 20-17-103(4)(A),(B).
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Doe v. Roe, 638 S.W.3d 614, 617-19 (Tenn. Ct. App. 2021) (footnote omitted). As
further elucidated by this Court in Nandigam Neurology, PLC v. Beavers, 639 S.W.3d
651, 658 (Tenn. Ct. App. 2021): “Plaintiffs in SLAPP suits do not intend to win but
rather to chill a defendant’s speech or protest activity and discourage opposition by others
through delay, expense, and distraction” (quoting Sandholm v. Kuecker, 962 N.E.2d 418,
427 (Ill. 2012)).
One relevant section of the TPPA, codified at Tennessee Code Annotated § 20-17-
104, provides in pertinent part:
(a) If a legal action is filed in response to a party’s exercise of the right
of free speech, right to petition, or right of association, that party
may petition the court to dismiss the legal action.
(b) Such a petition may be filed within sixty (60) calendar days from the
date of service of the legal action or, in the court’s discretion, at any
later time that the court deems proper.
(c) A response to the petition, including any opposing affidavits, may be
served and filed by the opposing party no less than five (5) days
before the hearing or, in the court’s discretion, at any earlier time
that the court deems proper.
Another relevant section, Tennessee Code Annotated § 20-17-105 (2021), further
provides:
(a) The petitioning party has the burden of making a prima facie case
that a legal action against the petitioning party is based on, relates to,
or is in response to that party’s exercise of the right to free speech,
right to petition, or right of association.
(b) If the petitioning party meets this burden, the court shall dismiss the
legal action unless the responding party establishes a prima facie
case for each essential element of the claim in the legal action.
(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the
claims in the legal action.
(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or
defense is based and on other admissible evidence presented by the
parties.
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(e) If the court dismisses a legal action pursuant to a petition filed under
this chapter, the legal action or the challenged claim is dismissed
with prejudice.
(f) If the court determines the responding party established a likelihood
of prevailing on a claim:
(1) The fact that the court made that determination and the
substance of the determination may not be admitted into
evidence later in the case; and
(2) The determination does not affect the burden or standard of
proof in the proceeding.
In the instant action, the trial court entered an order on November 29, 2021,
concerning the partial motion to dismiss. In this order, the court elucidated that
Homeowners had filed their motion pursuant to the TPPA “to dismiss [Rock Creek’s]
defamation claim[s] regarding what [Homeowners] claim[] is protected free speech.”
The court further stated:
[Homeowners] argue that [Rock Creek] has not proven its prima facie case
of defamation because [Rock Creek] did not suffer actual damages, the
statements made by [Homeowners] were not factually false, and that the
comments that were made did not meet the publication requirement of
having been communicated to a third party. [Rock Creek] has provided
evidence (in Ex. 1) of statements made online to third parties that [Rock
Creek] claim[s] to be defamatory in that they harmed [Rock Creek’s]
reputation and caused damages.
Notwithstanding its acknowledgement that Homeowners had filed the motion pursuant to
the TPPA and its consideration of the evidence filed by Rock Creek as an exhibit to the
counterclaim, the court ostensibly proceeded to analyze and adjudicate the motion to
dismiss utilizing a traditional Tennessee Rule of Civil Procedure 12.02(6) standard,
which “challenges only the legal sufficiency of the complaint, not the strength of the
plaintiff’s proof or evidence” and requires the court to “construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.” See Webb v. Nashville Area Habitat for Human., Inc., 346
S.W.3d 422, 426 (Tenn. 2011). The court made no findings or conclusions concerning
whether the TPPA was applicable regarding Rock Creek’s claims of defamation.
Moreover, if the TPPA does apply to such claims, the trial court failed to address (1)
whether the time limitations contained in Tennessee Code Annotated § 20-17-104 had
been satisfied or (2) whether the parties had met their respective burdens pursuant to
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Tennessee Code Annotated § 20-17-105. Instead, the trial court denied Homeowners’
motion without further explanation.
Although the TPPA is a relatively new statute, this Court has addressed issues
concerning the proper application and construction of the TPPA in a few recent decisions.
See Doe, 638 S.W.3d at 614; Nandigam, 639 S.W.3d at 651; Charles v. McQueen, No.
M2021-00878-COA-R3-CV, 2022 WL 4490980 (Tenn. Ct. App. Sept. 28, 2022). Our
review of these cases in conjunction with the TPPA’s express language has revealed two
general conclusions. First, when presented with a motion to dismiss filed pursuant to the
TPPA, the threshold step in the trial court’s analysis must be to determine whether the
claim falls within the TPPA’s parameters. This is determined by analyzing whether the
petitioning party has demonstrated “a prima facie case that a legal action against the
petitioning party is based on, relates to, or is in response to that party’s exercise” of
certain protected rights. Tenn. Code Ann. § 20-17-105(a); Doe, 638 S.W.3d at 619;
Charles, 2022 WL 4490980, at *3.4 Second, if the court determines that the petitioning
party has met such requirements of the statute, “the court shall dismiss the legal action
unless the responding party establishes a prima facie case for each essential element of
the claim in the legal action” or “if the petitioning party establishes a valid defense to the
claims in the legal action.” Tenn. Code Ann. § 20-17-105(a); Nandigam, 639 S.W.3d at
668; Charles, 2022 WL 4490980, at *10.
Rock Creek contends that the trial court properly applied the standard applicable
to a traditional Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss, urging that
Rule 12’s provisions must prevail over the specific dismissal procedure outlined in the
TPPA. In support of this assertion, Rock Creek relies upon numerous federal court
decisions wherein it was determined that federal procedural rules prevail over the
dismissal procedure outlined in the respective state’s anti-SLAPP law in a federal court
action based on diversity jurisdiction. See, e.g., Apex Bank v. Rainsford, No. 3:20-CV-
198, 2020 WL 12840460, at *3 (E.D. Tenn. Sept. 16, 2020). However, the federal courts
have predicated these determinations on the United States Supreme Court’s distinction
between procedural law and substantive law existing in federal diversity actions as first
outlined in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and commonly referred to as
the “Erie doctrine.” See id. As such, those decisions have no applicability in this state
court action.
Rock Creek also posits that in Tennessee, “[c]onflicts between provisions of the
Tennessee Rules of Civil Procedure and Tennessee statutes which cannot be harmonized
are resolved in favor of the Rules of Civil Procedure.” Pratcher v. Methodist Healthcare
4
Of course, the trial court must also necessarily determine whether the parties have met the statutory
requirements concerning the timeliness of the petition’s filing and of the response’s filing. See Tenn.
Code Ann. § 20-17-104. We will address the timeliness questions in a subsequent section of this
Opinion.
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Memphis Hosps., 407 S.W.3d 727, 736 (Tenn. 2013). However, Rock Creek has failed to
demonstrate that the dismissal procedures outlined in Tennessee Rule of Civil Procedure
12.02(6) and in the TPPA cannot be harmonized. Although this appears to be an issue of
first impression in Tennessee, other states that have enacted similar anti-SLAPP
legislation containing specific dismissal procedures have harmonized these distinct
dismissal provisions with Rule 12’s dismissal mechanism.
By way of example, we have considered the analysis of the District of Columbia
Court of Appeals in Am. Studies Ass’n v. Bronner, 259 A.3d 728, 734 (D.C. 2021). In
Bronner, the petitioning party had filed a motion to dismiss pursuant to both District of
Columbia Superior Court Rule of Civil Procedure 12(b)(6) and District of Columbia’s
anti-SLAPP law, which latter procedure contains a similar “burden-shifting” framework
to that found in the TPPA. See id. The Bronner Court harmonized these dismissal
procedures, determining that anti-SLAPP petitions would be analyzed pursuant to the
framework provided in the statute. See id.
Likewise, in Alnylam Pharm., Inc. v. Dicerna Pharm., Inc., 34 Mass. L. Rptr. 504,
2017 WL 6395719, at *1 (Mass. Super. Oct. 23, 2017), the petitioning party had filed a
motion to dismiss pursuant to both Massachusetts Rule of Civil Procedure 12(b)(6) and
that state’s anti-SLAPP law, which contains a similar “burden-shifting” framework as
that found in the TPPA. See id. In analyzing these motions, the Massachusetts trial
court elucidated:
The standards for evaluating Alnylam’s anti-SLAPP motion and its Rule
12(b)(6) motion are different. To survive a Rule 12(b)(6) motion to
dismiss, a complaint or counterclaim must set forth the basis for the
complainant’s entitlement to relief with “more than labels and
conclusions.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
[(2008)], quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At
the pleading stage, Rule 12(b)(6) requires that the counterclaim set forth
“factual ‘allegations plausibly suggesting (not merely consistent with)’ an
entitlement to relief . . .” Id., quoting Bell Atl. Corp., 550 U.S. at 557. The
court must, however, accept as true the factual allegations of the
counterclaim and draw every reasonable inference in favor of the
counterclaimant. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676
(2011). The anti-SLAPP standard allows the court to consider more than
the averments in the counterclaim. “[T]he motion judge, in the exercise of
sound discretion, is to assess the totality of the circumstances pertinent to
the nonmoving party’s asserted primary purpose in bringing its claim. The
course and manner of proceedings, the pleadings filed, and affidavits
‘stating the facts upon which the liability or defense is based,’ . . . may all
be considered in evaluating whether the claim is a ‘SLAPP’ suit.”
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Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 160-61 (2017)
(citations omitted).
Id. The court therefore proceeded to analyze the anti-SLAPP motion pursuant to the
burden-shifting framework provided in the statute while analyzing the claims subject to
the Rule 12 motion pursuant to a traditional Rule 12 framework. Id. See also Stark v.
Lackey, 458 P.3d 342, 344 (Nev. 2020) (harmonizing the dismissal procedure provided in
Nevada’s anti-SLAPP statute with Nevada Rule of Civil Procedure 12); Metzler v.
Rowell, 547 S.E.2d 311, 315 (Ga. Ct. App. 2001) (harmonizing the dismissal procedure
provided in Georgia’s anti-SLAPP statute with a traditional motion to dismiss or for
summary judgment).
We acknowledge that decisions from other state courts are merely persuasive
authority and not binding on this Court. See Pope v. Nebco of Cleveland, Inc., 585
S.W.3d 874, 884 (Tenn. Workers Comp. Panel 2018) (citing Ottinger v. Stooksbury, 206
S.W.3d 73, 78 (Tenn. Ct. App. 2006)). However, based upon our review of Tennessee
precedent interpreting the TPPA and other states’ decisions respecting similar anti-
SLAPP statutes, we conclude that the dismissal provisions contained within the TPPA
can be harmonized with the operation of Tennessee Rule of Civil Procedure 12.
We therefore reject Rock Creek’s argument that the traditional Rule 12 dismissal
procedure must be applied when dismissal is sought pursuant to the TPPA. Instead, when
a party files a motion to dismiss based on the TPPA, the dismissal procedure delineated
in the TPPA should be followed regarding the respective claims. To hold otherwise
would render the dismissal provision contained within the TPPA statute meaningless. “In
interpreting a statute, we must avoid constructions which would render portions of the
statute meaningless or superfluous.” Leab v. S & H Mining Co., 76 S.W.3d 344, 350 n.3
(Tenn. 2002).
Based on the foregoing, we determine that the trial court’s judgment denying
Homeowners’ partial motion to dismiss filed pursuant to the TPPA must be vacated. We
remand this matter to the trial court for an initial determination concerning whether the
TPPA applies to Rock Creek’s defamation claims. If the trial court determines that the
TPPA does apply, the court must then apply the dismissal procedure outlined in the
TPPA when analyzing and ruling upon Homeowners’ motion.
We also recognize Rock Creek’s argument that Homeowners’ motion relying on
the TPPA was untimely pursuant to the deadline established in the statute. We reiterate
that the statute provides that a motion for dismissal filed pursuant to the TPPA “may be
filed within sixty (60) calendar days from the date of service of the legal action or, in the
court’s discretion, at any later time that the court deems proper.” Tenn. Code Ann. § 20-
17-104(b).
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With respect to the time limitations prescribed in Tennessee Code Annotated § 20-
17-104, we note that Rock Creek filed its counterclaim alleging defamation on May 21,
2020, serving it upon Homeowners via the United States Postal Service on that same
date. However, Homeowners failed to file their motion seeking dismissal of the
counterclaim pursuant to the TPPA until May 11, 2021, almost one year later.
Consequently, Homeowners were clearly outside the sixty-day window for filing a TPPA
petition as referenced in § 20-17-104(b).
Homeowners argue, however, that the trial court “implicitly exercised discretion to
entertain the anti-SLAPP petition at a later time after the time period ordinarily
contemplated by the statute.” We note that the statute does grant the trial court discretion
to consider a TPPA motion filed outside the sixty-day window. Although the trial court’s
November 29, 2021 order denying Homeowners’ partial motion to dismiss expressly
recited Homeowners’ contentions concerning the TPPA, the court addressed neither the
applicability of the TPPA nor the time requirements contained therein. Accordingly, we
determine that the timeliness query should also be addressed by the trial court upon
remand once the court has determined whether the TPPA is applicable to Rock Creek’s
defamation claims.
Respecting the second issue raised by Homeowners, they urge that the partial
motion to dismiss must be granted upon remand due to Rock Creek’s failure to comply
with the statute’s response requirement. Pursuant to the time limitations prescribed in
Tennessee Code Annotated § 20-17-104, Rock Creek was required to file a response to
the motion “no less than five (5) days before the hearing.” Rock Creek never filed such a
response. Therefore, Homeowners advance the position that their motion must be
granted, relying on this Court’s opinion in Nandigam. See 639 S.W.3d at 668 (holding
that the trial court properly dismissed the plaintiffs’ claims based on the TPPA inasmuch
as the plaintiffs failed to timely respond to the TPPA petition). Upon careful review, we
disagree with Homeowners on this point.
In the case at bar, the trial court made no determination concerning whether the
TPPA was applicable to Rock Creek’s defamation claims. As previously noted, this
should be the initial focus of the court’s analysis upon remand. If that issue is decided
affirmatively, the court would then consider issues of timeliness concerning both the
filing of the motion to dismiss and Rock Creek’s response. Although the trial court did
not address either of these issues in its order, we also note that the trial court’s November
29, 2021 order expressly stated that no hearing was held concerning the motion due to
our Supreme Court’s “Amended Covid-19 Comprehensive Plan of Action” that was in
effect at that time. Inasmuch as Tennessee Code Annotated § 20-17-104(c) specifies that
the “response to the petition . . . may be served and filed by the opposing party no less
than five (5) days before the hearing,” and no hearing was scheduled, we cannot conclude
under the circumstances of this case that Homeowners would be automatically entitled to
a grant of their motion by reason of Rock Creek’s lack of timely response.
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Finally, if the trial court resolves the timeliness question in Homeowners’ favor,
the court should then proceed to apply the burden-shifting dismissal procedure outlined in
the TPPA in order to properly analyze Homeowners’ partial motion to dismiss. Should
Homeowners succeed in achieving dismissal of Rock Creek’s defamation claims pursuant
to the TPPA, the trial court may then address any issue concerning an award of attorney’s
fees pursuant to the statute. See Tenn. Code Ann. § 20-17-104 (providing for an award of
attorney’s fees to the petitioning party “[i]f the court dismisses a legal action pursuant to
a petition filed under this chapter”). Ergo, that issue is not ripe for adjudication by this
Court.
Finally, inasmuch as we have concluded that the trial court’s denial of
Homeowners’ partial motion to dismiss Rock Creek’s defamation claims must be
vacated, we need also consider whether the award of damages and attorney’s fees
assessed against Homeowners in the trial court’s November 30, 2021 order can stand.
We note that in this order, the trial court awarded a default judgment “against
[Homeowners] in the amount of $16,015.10 plus court costs and attorneys’ fees
pertaining to [Homeowners’] admitted breach of contract.” However, the court also
stated that in making such award, the court had considered:
[A]dmissions have been deemed admitted that there was no breach of
contract by [Rock Creek], that no damages had been incurred by
[Homeowners], that [Rock Creek] had suffered damages as a result of
[Homeowners’] breach of contract in the amount specified in [Rock
Creek’s] invoice (Ex. 1), that [Homeowners] knowingly made false
statements to third parties, and that [Rock Creek] was damaged as a result
of those defamatory statements.
(Emphasis added.) Therefore, to the extent that the trial court granted any monetary
award based upon Rock Creek’s defamation claims, that portion of the trial court’s
judgment must be vacated and remanded for further consideration once Homeowners’
motion to dismiss has been properly adjudicated.
V. Conclusion
For the foregoing reasons, we vacate the trial court’s denial of Homeowners’
partial motion to dismiss Rock Creek’s defamation claims, which motion was filed
pursuant to the dismissal provision contained within the TPPA. We further vacate any
portion of the trial court’s monetary judgment that was based on Rock Creek’s
defamation claims. We remand this matter to the trial court for an adjudication of
Homeowners’ partial motion to dismiss, consistent with this Opinion, and a subsequent
adjudication of damages and attorney’s fees. Costs on appeal are assessed to the
appellee, Rock Creek Construction, Inc.
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s/Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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