Day on Torts

Dismissal of Defamation and False Light Claim under Tennessee Public Participation Act partially reversed.

Where plaintiff real estate professional brought an action for defamation and false light based on an online review written by defendant, defendant moved to dismiss the action pursuant to the Tennessee Public Participation Act (TPPA).

In Charles v. McQueen, No. M2021-00878-COA-R3-CV, 2022 WL 4490980 (Tenn. Ct. App. Sept. 28, 2022), plaintiff was a real estate professional involved in some capacity with Durham Farms, which was a large residential community. Defendant was a resident in the community who wrote a negative online review of the developer of the community and plaintiff. Regarding plaintiff, the review stated: “Bill Charles, especially, uses misleading tactics to lure in home buyers only to deceive them.”

Based on this review, plaintiff filed this action for defamation and false light against plaintiff. Defendant filed a petition for dismissal pursuant to the TPPA, and after finding that the TPPA applied, that plaintiff was a limited-purpose public figure in the context of this action, and that plaintiff “had not established a prima facie case for actual malice,” the trial court dismissed the case. This ruling was affirmed in part and reversed in part on appeal.

The TPPA, Tenn. Code Ann. § 20-17-101 et seq., is Tennessee’s version of an anti-SLAPP statute and was designed to “encourage and safeguard the constitutional right 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.” (quoting Tenn. Code Ann. § 20-17-102). “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.” (internal citations omitted). If a party petitions for dismissal under the TPPA and “makes a prima facie case that they have participated in a protected activity under the TPPA, the court may then dismiss the action against them, unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.” (internal citations, quotation and emphasis omitted).

Here, the first issue was whether the TPPA applied to the facts of this case. The trial court ruled that defendant’s statements constituted a matter of public concern because they related to a good in the marketplace, but the Court of Appeals found that the TPPA applied based on different reasoning. The TPPA applies when the petitioner has participated in an “exercise of right of free speech,” which means “a communication made in connection with a matter of public concern…” (citing Tenn. Code Ann. § 20-17-103(3)). The TPPA further provides that “a matter of public concern” includes issues related to, among other things, “environmental, economic or community well-being.” (citing Tenn. Code Ann. § 20-17-103(6)). Although Tennessee had no case law on this issue, the Court noted that other states have interpreted their own similar laws to mean that “neighborhoods are often considered to constitute communities and implicate matters of ‘public interest’ or ‘public concern’ in the context of anti-SLAPP litigation.” The Court of Appeals thus ruled that the statement at issue here “concern[ed] an issue that [was] related to ‘community well-being’” as contemplated by the TPPA, and that the TPPA therefore applied.

Having found that the TPPA applied, the Court moved on to considering whether plaintiff had shown a prima facie case for each element of his two claims. A critical issue in this analysis was whether the trial court correctly ruled that plaintiff was a limited-purpose public figure, as that meant plaintiff had to show actual malice for defamation rather than just negligence. When considering whether plaintiff was a public figure, “the trial court must determine that there was in fact a public controversy and that Plaintiff injected himself into the controversy by his own voluntary action.” (internal citation omitted). Plaintiff raised several evidentiary issues on appeal related to the question of whether he was a public figure, and the Court of Appeals agreed that the trial court incorrectly relied on certain newspaper articles and meeting minutes from commission meetings and homeowners’ association meetings, neither of which were admissible. Per the TPPA itself, only admissible evidence should have been considered (see Tenn. Code Ann. § 20-17-105(d)), and once the Court of Appeals took the inadmissible exhibits out of consideration, there was no evidence to support the finding that plaintiff “had voluntarily injected himself into the controversy” and no evidence regarding “the prominence of the role Plaintiff allegedly played in the alleged public controversy.” The finding that plaintiff was a limited-purpose public figure was accordingly reversed.

The Court next considered whether plaintiff had made a prima facie case for the essential elements of his two claims. Regarding defamation, because plaintiff was not a public figure, he only needed to show negligence rather than actual malice. Considering the elements of defamation and the facts of this case, the Court ruled that plaintiff showed at least a prima facie case that defendant published a statement, that the statement was defamatory, and that defendant acted with negligence because she admitted in her deposition that she was “largely unaware of the extent of Plaintiff’s involvement in [the neighborhood]” and that she did not try to verify plaintiff’s level of involvement. Accordingly, dismissal of the defamation claim was reversed.

For the false light claim, the Court pointed out that even though plaintiff should not be considered a public figure, “actual malice is the appropriate standard for false light claims when the plaintiff is a public official or public figure, or when the claim is asserted by a private individual about a matter of public concern.” (internal citation omitted). Based on a similar reasoning to the TPPA analysis, the Court found that the statement at issue here related to a matter of public concern, and plaintiff thus had to make a prima facie case of actual malice. While the Court found that plaintiff could make a case for the other elements of false light, it agreed with the trial court that plaintiff could not show actual malice. Defendant “genuinely believed the veracity of her statements concerning Plaintiff’s purported involvement with Durham Farm’s development and the rental units,” and thus plaintiff could not show that defendant acted with actual malice or with reckless disregard. Dismissal of the false light claim was therefore affirmed.

Because the TPPA is a relatively new statute, it has not been interpreted in many opinions. This case is accordingly an important read for anyone litigating a case that might implicate the TPPA.

This opinion was released four months after oral argument in this case.

Note: Chapter 28, Sections 12 and 14 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

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