Opinion

Trevor Adamson v. Sarah E. Grove

Court: Court of Appeals of Tennessee
Filed: Nov 30, 2022
Status: Published
On the bench: Judge Carma Dennis McGee
Cited by: 0 cases
Authority: More cited than 21.3%

“Husband’s right to take a nonsuit is subject to Wife’s right to proceed on her counterclaim.”

How later courts described this case

“Husband’s right to take a nonsuit is subject to Wife’s right to proceed on her counterclaim.”
“[W]e should not assume that subject matter jurisdiction existed based on the fact that the issue was not addressed.”
explaining that “[t]he Tennessee rule on voluntary dismissals . . . is much more liberal than that obtaining in federal courts and in many other jurisdictions”
“Walker’s motion to dismiss under the TCPA survived Hartman’s nonsuiting of certain causes of action.”

Written by the judges who cited it.

The opinion

11/30/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 17, 2022 Session

TREVOR ADAMSON v. SARAH E. GROVE, ET AL.

Appeal from the Circuit Court for Sumner County

No. 83CC1-2020-CV-906, 83CC1-2020-CV-616, 83CC1-2020-CV-818

Joe Thompson, Judge

___________________________________

No. M2020-01651-COA-R3-CV

___________________________________

In this case, the plaintiff filed a complaint alleging defamation and related causes of action.

Before the defendants filed an answer or any other pleading, the plaintiff filed a notice of

voluntary dismissal, and the trial court entered an order of voluntary dismissal without

prejudice. Within thirty days, the defendants filed a combined motion to alter or amend

and petition to dismiss the complaint with prejudice pursuant to the Tennessee Public

Participation Act (TPPA), Tenn. Code Ann. § 20-17-101, et seq., seeking an award of

attorney fees and sanctions. The trial court ultimately entered an order altering or

amending the order of voluntary dismissal without prejudice, granting the defendants’

petition to dismiss with prejudice under the TPPA, and ordering the plaintiff to pay $15,000

in attorney fees in addition to $24,000 in sanctions. The plaintiff has appealed and raised

numerous issues, including a challenge to the trial court’s subject matter jurisdiction after

the nonsuit. For the following reasons, we reverse the trial court’s order granting the

motion to alter or amend, vacate the trial court’s order granting the appellees’ petition to

dismiss with prejudice and awarding attorney fees and sanctions, and remand.

Tenn. R. Civ. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in

Part, Vacated in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Kent T. Jones, Cleveland, Tennessee, for the appellant, Trevor Adamson.

Daniel A. Horwitz, Nashville, Tennessee, for the appellees, Karl S. Bolton, Sarah E. Grove,

and Deborah Ann Sangetti.

Jonathan T. Skrmetti, Attorney General and Reporter, Andrée Blumstein, Solicitor

General, and Janet M. Kleinfelter, Deputy Attorney General, for the appellee, State of

Tennessee.

OPINION

I. FACTS & PROCEDURAL HISTORY

On July 9, 2020, Plaintiff Trevor Adamson filed this lawsuit against Defendants

Sarah E. Grove, Deborah Ann Sangetti, and Karl S. Bolton. According to the complaint,

the suit arose out of allegedly defamatory Facebook posts and slanderous utterances made

by Defendants concerning Plaintiff. The complaint asserted several causes of action,

including defamation, invasion of privacy, intentional interference with business relations,

and other related claims. It sought $800,000 in compensatory and punitive damages, in

addition to injunctive relief and attorney fees. Plaintiff filed an amended complaint on

August 12. On August 13, Plaintiff’s counsel moved to withdraw. On August 20, Plaintiff

filed a notice of voluntary dismissal without prejudice pursuant to Tennessee Rule of Civil

Procedure 41.01. At that time, Defendants had not filed an answer or other pleading of any

sort. On August 24, the trial court entered an order dismissing the case without prejudice

pursuant to Rule 41.01.

On September 11, Defendants filed a combined motion to alter or amend and

petition to dismiss with prejudice pursuant to the Tennessee Public Participation Act, Tenn.

Code Ann. § 20-17-101, et seq., seeking an award of attorney fees and sanctions.

Defendants characterized Plaintiff’s lawsuit as a “SLAPP-suit” that was filed by a political

candidate in order to silence community activists who criticized him online. Thus, a brief

description of SLAPP suits is helpful at the outset.

This Court provided the following general overview of SLAPP suits and anti-

SLAPP legislation in Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 657-59

(Tenn. Ct. App. 2021):

The term “SLAPP” stands for “strategic lawsuits against public

participation,” meaning lawsuits which might be viewed as “discouraging

the exercise of constitutional rights, often intended to silence speech in

opposition to monied interests rather than to vindicate a plaintiff’s right.”

[Todd Hambidge, et al., Speak Up. Tennessee’s New Anti-SLAPP Statute

Provides Extra Protections to Constitutional Rights, 55 Tenn. B.J. 14, 15

(Sept. 2019)]; see also Sandholm v. Kuecker, 356 Ill.Dec. 733, 962 N.E.2d

418, 427 (Ill. 2012) (“‘SLAPPs . . . are lawsuits aimed at preventing citizens

from exercising their political rights or punishing those who have done so.’”

(quoting Wright Dev. Group, LLC v. Walsh, 238 Ill.2d 620, 345 Ill.Dec. 546,

939 N.E.2d 389, 395 (2010))). Regarding SLAPP lawsuits generally, the

-2-

Illinois Supreme Court has aptly explained:

SLAPPs use the threat of money damages or the prospect of

the cost of defending against the suits to silence citizen

participation. The paradigm SLAPP suit is “one filed by

developers, unhappy with public protest over a proposed

development, filed against leading critics in order to silence

criticism of the proposed development.” Westfield Partners,

Ltd. v. Hogan, 740 F. Supp. 523, 525 (N.D. Ill. 1990). A

SLAPP is “based upon nothing more than defendants’ exercise

of their right, under the first amendment, to petition the

government for a redress of grievances.” Hogan, 740 F. Supp.

at 525. SLAPPs are, by definition, meritless. John C. Barker,

Common-Law and Statutory Solutions to the Problem of

SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993). 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.

Id. at 403-05. “In fact, defendants win eighty to ninety percent

of all SLAPP suits litigated on the merits.” Id. at 406. While

the case is being litigated in the courts, however, defendants

are forced to expend funds on litigation costs and attorney fees

and may be discouraged from continuing their protest

activities. Id. at 404-06. “The idea is that the SLAPP

plaintiff’s goals are achieved through the ancillary effects of

the lawsuit itself on the defendant, not through an adjudication

on the merits. Therefore, the plaintiff’s choice of what cause

of action to plead matters little.” Mark J. Sobczak, Comment,

SLAPPed in Illinois: The Scope and Applicability of the Illinois

Citizen Participation Act, 28 N. Ill. U.L. Rev. 559, 561 (2008).

SLAPPs “masquerade as ordinary lawsuits” and may include

myriad causes of action, including defamation, interference

with contractual rights or prospective economic advantage, and

malicious prosecution. Kathryn W. Tate, California’s Anti–

SLAPP Legislation: A Summary of and Commentary on Its

Operation and Scope, 33 Loy. L.A. L. Rev. 801, 804-05

(2000). Because winning is not a SLAPP plaintiff’s primary

motivation, the existing safeguards to prevent meritless claims

from prevailing were seen as inadequate, prompting many

states to enact anti-SLAPP legislation. Id. at 805. These

statutory schemes commonly provide for expedited judicial

review, summary dismissal, and recovery of attorney fees for

the party who has been “SLAPPed.” Id.

-3-

Sandholm, 356 Ill. Dec. 733, 962 N.E.2d at 427-28 (some internal citations

omitted); see also Steidley v. Cmty. Newspaper Holdings, Inc., 383 P.3d 780,

786 (Okla. Civ. App. 2016) (citations omitted) (“SLAPP suits are designed

to intimidate the petitioners into dropping their initial petitions due to the

expense and fear of extended litigation. Libel is a common cause of action

in SLAPP suits.”).

Anti-SLAPP statutes have arisen in response to SLAPP lawsuits. See

Hambidge, supra, at 15 (“[A]nti-SLAPP statutes are not a recent

development[;] [s]tates began enacting anti-SLAPP statutes in the 1980s in

response to an increasing number of lawsuits that were filed for the purpose

of discouraging the exercise of constitutional rights.”); see also Liberty

Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 147 (2nd Cir. 2013) (“[T]he

point of the anti-SLAPP statute is that you have a right not to be dragged

through the courts because you exercised your constitutional rights.”). Over

thirty states now have anti-SLAPP statutes in place, and while the particular

language varies, the stated purpose of anti-SLAPP legislation is consistent.

See, e.g., Ga. Code Ann. § 9-11-11.1(a) (“[I]t is in the public interest to

encourage participation by the citizens of Georgia in matters of public

significance and public interest through the exercise of their constitutional

rights of petition and freedom of speech . . . [T]he valid exercise of the

constitutional rights of petition and freedom of speech should not be chilled

through abuse of the judicial process.”); Ark. Code Ann. § 16-63-501 (“[I]t

is in the public interest to encourage participation by the citizens of the State

of Arkansas in matters of public significance through the exercise of their

constitutional rights of freedom of speech . . . Strategic lawsuits against

political participation can effectively punish concerned citizens for

exercising the constitutional right to speak and petition the government for a

redress of grievances.”); Colo. Rev. Stat. § 13-20-1101 (“[I]t is in the public

interest to encourage continued participation in matters of public significance

and [ ] this participation should not be chilled through abuse of the judicial

process.”).

Id. at 657-59.

Tennessee’s Anti-SLAPP law, the Tennessee Public Participation Act, Tenn. Code

Ann. § 20-17-101, et seq., “is a relatively new creature of the legislature, having only been

codified in 2019.” Doe v. Roe, 638 S.W.3d 614, 617 (Tenn. Ct. App. 2021). However,

this Court has noted that “the statute is, on its face, consistent with the anti-SLAPP

legislation of many other states.” Nandigam, 639 S.W.3d at 660. The TPPA provides:

The purpose of this chapter is to encourage and safeguard the constitutional

-4-

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.

Tenn. Code Ann. § 20-17-102. The TPPA “is intended to provide an additional substantive

remedy to protect the constitutional rights of parties and to supplement any remedies which

are otherwise available to those parties under common law, statutory law, or constitutional

law or under the Tennessee Rules of Civil Procedure.” Tenn. Code Ann. § 20-17-109.

Tennessee’s Act contains a “burden-shifting mechanism.” Doe, 638 S.W.3d at 624.

“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” by filing a petition “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(a)-(b). According to the Act,

(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.

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.

(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.

-5-

Tenn. Code Ann. § 20-17-105. The TPPA further provides:

(a) If the court dismisses a legal action pursuant to a petition filed under

this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs, and other

expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court determines

necessary to deter repetition of the conduct by the party who brought the

legal action or by others similarly situated.

Tenn. Code Ann. § 20-17-107(a).

Again, in the case before us, Defendants filed a combined motion to alter or amend

the order of voluntary dismissal and petition for dismissal with prejudice pursuant to the

TPPA. They contended that Plaintiff had filed a frivolous SLAPP suit and that Plaintiff

had nonsuited it after Defendants retained counsel. Nevertheless, Defendants argued that

they had “a vested statutory right to a dismissal with prejudice under the [TPPA],” such

that the order of voluntary dismissal without prejudice should be altered or amended. They

argued that Plaintiff’s claims were all “speech-based” and fell squarely within the coverage

of the TPPA. Accordingly, Defendants claimed a vested statutory right to the “substantive

remedy” provided by the TPPA. See Tenn. Code Ann. § 20-17-109. Defendants argued

that their motion to alter or amend was timely filed within thirty days and that their TPPA

petition was also timely because it was filed within sixty days of the complaint in

accordance with Tennessee Code Annotated section 20-17-104. Thus, they argued that the

trial court “retain[ed] jurisdiction” to alter or amend its order of voluntary dismissal and to

adjudicate their TPPA petition.

Also within the combined petition, Defendants argued that Plaintiff was not entitled

to a nonsuit under Tennessee Rule of Civil Procedure 41.01(1), for several reasons. The

Rule provides, in pertinent part:

Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any

statute, and except when a motion for summary judgment made by an adverse

party is pending, the plaintiff shall have the right to take a voluntary nonsuit

to dismiss an action without prejudice by filing a written notice of dismissal

at any time before the trial of a cause and serving a copy of the notice upon

all parties, and if a party has not already been served with a summons and

complaint, the plaintiff shall also serve a copy of the complaint on that party;

or by an oral notice of dismissal made in open court during the trial of a

cause; or in jury trials at any time before the jury retires to consider its verdict

and prior to the ruling of the court sustaining a motion for a directed verdict.

If a counterclaim has been pleaded by a defendant prior to the service upon

-6-

the defendant of plaintiff’s motion to dismiss, the defendant may elect to

proceed on such counterclaim in the capacity of a plaintiff.

Tenn. R. Civ. P. 41.01. First, Defendants argued that Plaintiff’s right to take a nonsuit was

“[s]ubject to the provisions of . . . any statute,” which, Defendants argued, would include

their statutory rights under the TPPA. Next, Defendants cited caselaw recognizing that

“[a] plaintiff’s right to voluntary dismissal without prejudice is subject to the exceptions

expressly stated in Rule 41.01(1) as well as to an implied exception which prohibits nonsuit

when it would deprive the defendant of some vested right.” Lacy v. Cox, 152 S.W.3d 480,

484 (Tenn. 2004) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975)). Thus,

Defendants claimed that they had a vested right to dismissal with prejudice under the TPPA

and to recover their attorney fees and any additional relief the court deemed appropriate,

including sanctions. They argued that these TPPA rights had “vested upon the filing of”

Plaintiff’s complaint against them and that it would undermine the purpose of the TPPA if

a plaintiff could simply nonsuit his claims after a defendant incurred the expense of

retaining counsel. Finally, Defendants argued that “the availability of statutory sanctions

under the TPPA [] would also—by itself—confer jurisdiction to adjudicate the Defendants’

sanctions claim following the Plaintiff’s nonsuit,” under the reasoning of Menche v. White

Eagle Property Group, LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127 (Tenn.

Ct. App. Aug. 26, 2019). As such, they claimed that their substantive rights “must survive

a plaintiff’s non-suit.”

Defendants’ combined motion to alter or amend and TPPA petition went on to

address the burden shifting mechanism set forth in the TPPA. Noting that the petitioning

party first has “the burden of making a prima facie case” that the legal action was based

on, related to, or in response to the exercise of the right to free speech, right to petition, or

right of association, Tenn. Code Ann. § 20-17-105(a), Defendants argued that the claims

in Plaintiff’s complaint involved the exercise of their right of free speech and were made

in connection with a matter of public concern within the meaning of the Act. So,

Defendants argued that they were entitled to dismissal under subsection (b) “unless the

responding party establishes a prima facie case for each essential element of the claim[s].”

Tenn. Code Ann. § 20-17-105(b). Additionally, however, they noted that

“[n]otwithstanding subsection (b), the court shall dismiss the legal action if the petitioning

party establishes a valid defense to the claims in the legal action.” Tenn. Code Ann. § 20-

17-105(c). Defendants’ petition analyzed several defenses, which, they claimed, barred

the claims asserted in the complaint. In light of this showing, Defendants argued that they

were entitled to dismissal of Plaintiff’s complaint with prejudice in addition to an award of

$15,000 for the attorney fees they had incurred and an award of sanctions, if the court

deemed it appropriate. They argued that this case warranted “severe sanctions” and sought

an award of $24,000, explaining that they calculated this sum as three percent of the amount

of damages sought in the complaint ($800,000). Defendants attached various documents

to their petition, including information regarding Plaintiff’s political activity, online

webpages and postings, Defendants’ engagement letters and retainer agreements with their

-7-

attorney, and a fee petition analyzing the factors relevant to such awards.

Because Plaintiff’s counsel had moved to withdraw, Plaintiff filed a pro se response

to Defendants’ combined petition. It was entitled, “Verified Petition of Trevor Adamson

and Samantha Myers to Dismiss Tenn. R. Civ. P. 27.01(1).” The style of the case listed on

the document included Plaintiff’s fiancé as an additional petitioner and Defendants’

counsel as an additional respondent. It sought various forms of relief, including injunctive

relief, the opportunity to engage in discovery, dismissal of Defendants’ motion for attorney

fees, and an award of attorney fees to Plaintiff. The response suggested that, with limited

discovery, Plaintiff would be able to show that the case was not about free speech. Plaintiff

also argued that he had established a prima facie case of defamation. He attached many

online posts and emails as exhibits, along with other documents. The clerk assigned a new

docket number to this pro se filing, apparently because it purported to involve parties not

named in the original complaint.

Defendants filed a reply, construing Plaintiff’s pro se petition as a response to their

combined motion to alter or amend and TPPA petition. However, they contended that

Plaintiff’s response was not supported by admissible evidence to meet his burden under

the TPPA. Defendants argued that the response was meritless and failed to establish a

prima facie case for each element of the claims or overcome the defenses asserted by

Defendants. As a result, Defendants maintained that they were entitled to dismissal with

prejudice under either subsection (b) or subsection (c) of Tennessee Code Annotated

section 20-17-105.

At a hearing on October 5, 2020, Plaintiff indicated that he intended his pro se filing

to serve as his response to the Defendants’ combined motion to alter or amend and TPPA

petition. Accordingly, the trial court entered an order stating that it would treat the filing

as such a response. The order further provided that the two case numbers were

consolidated. However, the order also stated that because Plaintiff had voluntarily

dismissed his amended complaint, he could not add new parties or claims to it through his

response. Therefore, the court struck any claims regarding the additional parties. The trial

court allowed Plaintiff’s counsel to withdraw and gave Plaintiff thirty days to file any

further response to Defendants’ combined motion and petition.

Plaintiff subsequently filed an additional pro se response, stating that he had been

unable to retain an attorney. He maintained that his complaint did not relate to free speech

and argued that Defendants were attempting to spread falsehoods about him and curb his

own free speech rights. Plaintiff stated that he was attaching an article that “details the

circular arguments and constitutional questions surrounding Anti-SLAPP legislation like

the [TPPA].” He suggested that the TPPA effectively bars all defamation claims and

“would limit the first amendment rights of Tennesseans” rather than protect them. He also

attached online postings to his response. Defendants then filed an additional reply.

-8-

The trial court entered its final order on November 17, 2020. At the outset, the court

stated that Defendants had filed a “timely” motion to alter or amend and TPPA petition.

The trial court noted that Plaintiff had filed two responses to Defendants’ petition, but the

court found that neither response introduced admissible evidence that established a prima

facie case for each essential element of the speech-based claims asserted in the complaint.

It also found that neither response introduced admissible evidence sufficient to overcome

the valid defenses that Defendants established. “Accordingly, for the reasons set forth in

the Defendants’ Motion and TPPA Petition,” and the Defendants’ two replies, all of which

the court incorporated by reference, the court found that the combined motion to alter and

amend and TPPA petition was well taken and should be granted. It dismissed Plaintiff’s

amended complaint with prejudice pursuant to Tennessee Code Annotated section 20-17-

105(b) and (c), awarded Defendants $15,000 in attorney fees, and ordered Plaintiff to pay

$24,000 in sanctions “to deter repetition of the conduct” by him or others similarly situated.

Much activity transpired in the two years that followed. Plaintiff retained counsel

and filed a notice of appeal to this Court, but he designated only one docket number on his

notice of appeal. This Court dismissed the appeal because he “listed only one of the case

numbers from the consolidated cases in his notice of appeal” and “articulate[d] no issues

stemming from the dismissal of the case number he designated.” Adamson v. Grove, No.

M2020-01651-COA-R3-CV, 2021 WL 5919118, at *1 (Tenn. Ct. App. Dec. 15, 2021).

Accordingly, this Court concluded that it lacked jurisdiction to consider “the host of issues”

Plaintiff raised on appeal. Id. at *4. Plaintiff then filed an application for permission to

appeal to the Tennessee Supreme Court, raising numerous issues. The Tennessee Supreme

Court, by order, granted Plaintiff’s application, vacated the judgment of the Court of

Appeals, and remanded to this Court for further review. The Supreme Court concluded

that the trial court’s consolidation order had made it clear that the court was treating

Plaintiff’s pro se filing as a responsive document rather than a separate complaint. Thus,

under the particular facts of this case, the Supreme Court found that Plaintiff’s notice of

appeal was sufficient to provide Defendants with notice that Plaintiff was appealing the

final order entered on the combined motion to alter or amend and TPPA petition. The

Court explained that this “[gave] the Court of Appeals jurisdiction to hear the issues raised

by [Plaintiff] arising from that single final order.” The case was remanded “for further

review consistent with this Order.”

In the meantime, a supplemental record was filed in this Court reflecting that various

documents had also been filed in the trial court after the notice of appeal was filed. In

particular, Plaintiff had filed a motion to alter or amend or vacate the trial court’s final

order pursuant to Tennessee Rule of Civil Procedure 59 or 60. However, the motion was

filed on February 12, 2021, three months after the final order of November 17, 2020. The

motion stated that Plaintiff was approaching the trial court “[i]n an effort to provide judicial

efficiency . . . rather than unnecessarily burdening the appellate Court,” to provide the trial

court with an opportunity to correct mistakes and/or due to excusable neglect. It also stated

that Plaintiff was challenging the constitutionality of the TPPA on three grounds. The post-

-9-

judgment motion asserted that the trial court had “dismissed this case in error” in violation

of Plaintiff’s constitutional rights, and it asked the trial court to vacate its order of dismissal.

Defendants filed a response in the trial court, asserting that Plaintiff’s Rule 59 or 60 motion

was untimely and meritless. Plaintiff filed an additional reply and affidavit. This Court

noted in its first opinion that Plaintiff had filed the Rule 59 motion “well past the 30-day

time period prescribed for such motions,” but in any event, we stated that “[n]o ruling on

the belated motion to alter or amend appears in the record on appeal.” Adamson, 2021 WL

5919118, at *4 n.5.

Oral argument was held before this panel of the Court on May 17, 2022, after

remand from the Tennessee Supreme Court. The day before oral argument, Defendants

filed a motion to supplement the record on appeal with even more documents reflecting

actions taken in the trial court in recent months. Defendants argued that recent orders were

“relevant to several issues that [Plaintiff] has purported to raise in this appeal.”

Specifically, Defendants claimed that the trial court had entered two orders, on February 3

and May 16, 2022, which were “relevant in many respects to the issues that this Court has

been tasked with adjudicating.”

During oral argument the following day, Plaintiff’s counsel argued that “the biggest

issue” in this case is whether Plaintiff’s nonsuit at the early stages of the litigation meant

that the parties were “out of the case” such that it could not “[keep] going” thereafter.

According to Plaintiff, the trial court did not have “jurisdiction after the nonsuit to continue

the case.” In response, Defendants’ counsel argued that even though Plaintiff’s counsel

had just described this as “the biggest issue,” he had not designated any issue in his initial

brief on appeal regarding the trial court’s “post-nonsuit subject matter jurisdiction” and

had only raised the issue in his reply brief. Defendants argued that the issue of post-nonsuit

jurisdiction was “actually litigated below and it was determined below,” and that the trial

court had “found post-nonsuit subject matter jurisdiction on two alternative bases.”

Defendants noted that those rulings were not challenged in the initial brief filed by Plaintiff

and suggested that the issue should be waived when it was raised for the first time in a

reply brief. Defendants’ counsel further argued that the “post-judgment proceedings” that

had occurred in the trial court after the filing of the notice of appeal impacted this Court’s

consideration of the matter and would result in those issues “fall[ing] away as a result.”

Thus, he asked this Court to grant his motion to supplement the record with the trial court’s

post-judgment orders.

After oral argument, Defendants filed a motion to consider post-judgment facts,

again referencing the trial court’s two recent orders. Defendants argued that the two orders

“arose out of a contempt proceeding,” and therefore, they were from an independent and

“sui generis” action, separate from the case on appeal. Because Plaintiff did not file any

notice of appeal following the entry of those orders, Defendants argued that the two orders

“now carry preclusive effect.” According to Defendants, one of those orders made an

independent finding regarding the trial court’s “post-nonsuit subject matter jurisdiction” to

- 10 -

alter or amend the order of voluntary dismissal and adjudicate the TPPA petition. As such,

Defendants reasoned, the trial court’s recent “independent” ruling on subject matter

jurisdiction in the “contempt order” should have preclusive effect and bar this Court from

considering the issue of post-nonsuit subject matter jurisdiction on appeal. According to

Defendants, “this Court need not—and, indeed, it cannot—consider that jurisdictional

question anew, even if this Court believes the ruling was wrong.” This Court withheld its

ruling on the motions filed in this Court pending the issuance of this opinion.

II. ISSUES PRESENTED

The following issues were presented in Plaintiff’s brief on appeal:

1. Whether the Tennessee Public Participation Act, Tenn. Code Ann. §§

20-17-101 et seq., unconstitutionally denies litigants the right to a jury trial?

2. Whether the Tennessee Public Participation Act, Tenn. Code Ann. §§

20-17-101 et seq., is in inextricable conflict with the Tennessee Rules of Civil

Procedure?

3. Whether Defendants/Appellees were simply exercising the right of

free speech, the right to petition, or the right of association, or, instead

exercising an intention and desire to destroy and undermine

Plaintiff/Appellant’s business? See generally Tenn. Code Ann. § 20-17-104.

4. Whether Defendants/Appellees have made a prima facie case that

Plaintiff/Appellant’s legal action against them is based on, relates to, or is in

response to those parties’ exercise of the right to free speech, right to petition,

or right of association? See generally Tenn. Code Ann. § 20-17-105.

5. Whether Plaintiff/Appellant has made a prima facie case for each

essential element of his claim in the legal action? See generally Tenn. Code

Ann. § 20-17-105(b).

6. Whether Plaintiff/Appellant has submitted admissible evidence in

support of his claim? See generally Tenn. Code Ann. § 20-17-105(d).

7. Whether Defendant/Appellee’s Motion to Alter or Amend Judgment

was frivolous? See generally Tenn. Code Ann. § 20-7-107(b).

8. Whether Defendant/Appellee’s Tenn. Code Ann. § 20-17-104(a)

Petition to Dismiss the Plaintiff’s Complaint with Prejudice Pursuant to the

Tennessee Public Participation Act was frivolous? See generally Tenn. Code

Ann. §20-7-107(b).

9. Whether Defendants/Appellees were “presently unable to bring [their

action] or cause it to be brought.” See Tennessee Rule of Civil Procedure

27.01.

10. Whether Plaintiff/Appellant’s position was evaluated under the legal

standards mandated for pro se litigants?

11. Whether Defendants/Appellees’ counsel’s claim for Fifteen Thousand

Dollars ($15,000) in Attorney’s fees was backed up by legitimate, admissible

- 11 -

evidence, or instead, arbitrary and capricious?

12. Whether the sanction of Twenty-Four Thousand Dollars ($24,000)

was arbitrary, capricious and illegal?

In their posture as appellees, Defendants raised the following issues (omitting those

resolved by the Tennessee Supreme Court regarding the separate docket numbers and the

notice of appeal):

1. Whether the Appellant’s constitutional challenges to the Tennessee

Public Participation Act—and several other claims—are waived because he

has presented them for the first time on appeal.

2. Whether the Appellant’s failure to develop any argument in the body

of his briefing regarding several issues the Appellant has raised on appeal

results in waiver.

3. Whether the Appellant’s failure to contest the trial court’s dispositive

ruling that the Appellees established valid defenses to the Plaintiff’s speech-

based causes of action pretermits the Plaintiff’s merits issues.

4. Whether the Appellant failed to introduce admissible evidence

establishing a prima facie case for each essential element of his speech-based

tort claims.

5. Whether several of the issues identified in the Appellant’s Statement

of the Issues are waived due to the Appellant’s failure to present an argument

regarding them in the body of his Brief.

6. Whether the Appellant was treated improperly while acting pro se.

7. Whether the trial court’s attorney’s fee award—which represented

actual fees incurred—should be affirmed.

8. Whether the trial court’s sanctions award should be affirmed.

9. Whether the Defendants are entitled to an award of attorney’s fees

regarding this appeal.

The State of Tennessee also filed a brief on appeal to defend the constitutionality of the

TPPA. It presents the following issues:

1. Whether Plaintiff has waived its challenge to the constitutionality of

the Tennessee Public Participation Act, Tenn. Code Ann. §§ 20-17-101 to -

110, by not raising the issue in the trial court.

2. If the challenge is not waived, whether the Tennessee Public

Participation Act comports with the constitutional right to a jury trial and

with the separation of powers.

In addition, this Court must address the jurisdictional issue raised in connection with the

nonsuit and the outstanding motions filed in this Court regarding the preclusive effect of

the trial court’s recent orders.

- 12 -

III. DISCUSSION

A. Outstanding Motions

To begin, we will consider the motion to supplement the record on appeal and the

motion to consider post-judgment facts, both of which pertain to the trial court’s orders of

February 3 and May 16, 2022. Defendants contend that these orders arose from a separate

contempt proceeding and that the trial court’s ruling in the latter order regarding subject

matter jurisdiction is entitled to res judicata effect on appeal. Upon reviewing the attached

orders, however, we disagree with this characterization.

The February 3 order found Plaintiff in contempt in relation to post-judgment

discovery requests in aid of execution, and it provided that Defendants “shall be awarded”

their attorney fees associated with the petition for contempt upon the filing of a fee

affidavit. However, the order “reserve[d] judgment on whether the Plaintiff shall be fined

for his contempt until after the Plaintiff’s outstanding Rule 59 motion is adjudicated.” As

noted earlier in this opinion, Plaintiff had filed a post-judgment Rule 59 or 60 motion in

February 2021, three months after the final order was entered and while this appeal was

pending, but it went unresolved for months. The second order that Defendants ask this

Court to consider, entered on May 16, 2022, states, “This matter came before the Court for

hearing on May 16, 2022, upon Defendants’ Motions: (1) To Deny Plaintiffs Long-

Outstanding Post-Judgment Motions for Failure to Prosecute; and (2) For Attorney’s Fees

Regarding Defendants’ Contempt Petition.” Addressing the second matter first, the order

stated that Defendants had withdrawn their claim for a fine arising from Plaintiff’s

contempt, so that claim was denied as moot, but the court awarded Defendants a certain

sum for attorney fees incurred in the prosecution of the contempt petition. Then, the order

concluded with the following paragraph:

The Court finds that the Plaintiff has failed to set any of his post-

judgment motions for hearing for well over a year. The Plaintiff’s failure to

set any of his post-judgment motions for hearing has also persisted: (a) after

this Court advised the Plaintiff of his responsibility to set his motions for

hearing when the Parties appeared before the Court on January 24, 2022; (b)

in contravention of this Court’s rules; and (c) over the Defendants’

objections. Accordingly, the Court having determined and reaffirmed its

post-nonsuit subject matter jurisdiction pursuant to the statutory and vested

rights exceptions to Tenn. R. Civ. P. 41.01(1), the Court finds that the

Plaintiff’s post-judgment motions—including the Plaintiff’s Jan. 20, 2021

Motion for Stay on Appeal and Feb. 12, 2021 Motion to Alter, Amend or

Vacate Order pursuant to Tenn. R. Civ. P. 59.04 and Tenn. R. Civ. P. 60.02—

and all claims asserted within them should be and are hereby DENIED WITH

PREJUDICE pursuant to Tenn. R. Civ. P. 41.02(1).

- 13 -

Clearly, then, the May 16, 2022 order addressed two separate matters – contempt and the

outstanding “post-judgment motions” in the original case. Defendants rely on the trial

court’s statement in the quoted paragraph above about “post-nonsuit subject matter

jurisdiction.” However, a careful reading of this order reveals that this statement was made

not in resolving the separate contempt proceeding but only as a basis for resolving the

pending post-judgment motions in the same underlying lawsuit that is at issue in this

appeal.

Again, the notice of appeal was filed in this case in 2020. As such, Plaintiff’s post-

judgment motion filed in February 2021 was untimely under Rule 59, and “[i]f a post-trial

motion is not timely, the trial court lacks jurisdiction to rule on the motion.” Ball v.

McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). The post-judgment motion also mentioned

Rule 60; however, “a trial court has no jurisdiction to consider a Rule 60.02 motion during

the pendency of an appeal.” Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn. 1994).

Once the notice of appeal is filed, the jurisdiction of the appellate court attaches, and,

correlatively, the trial court loses jurisdiction. Born Again Church & Christian Outreach

Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421, 425

(Tenn. Ct. App. 2007). A party who wishes to seek relief from the judgment during the

pendency of an appeal must apply to the appellate court for an order of remand. Spence,

883 S.W.2d at 596. “Absent an application for remand, the trial court’s attempt to enter

further orders addressing a party’s Rule 60.02 motion is a nullity.” Born Again Church,

266 S.W.3d at 425.

In sum, the so-called “jurisdictional ruling” on which Defendants rely was stated by

the trial court in the context of its ruling on a post-judgment Rule 59 or 60 motion while

this case was pending on appeal.1 Therefore, the ruling is a nullity, and the order has no

bearing on this appeal. We hereby deny the motion to supplement the record and the

motion to consider post-judgment facts. See Holleman v. Holleman, No. E2018-00451-

COA-R3-CV, 2019 WL 2308066, at *10 (Tenn. Ct. App. May 30, 2019) (denying a motion

to supplement the record with a document related to a contempt proceeding when it had no

bearing on the appeal); see also Tenn. R. App. P. 14(a) (stating that consideration of post-

judgment facts “generally will extend only to those facts . . . affecting the positions of the

parties or the subject matter of the action”); Lovin v. State, 286 S.W.3d 275, 283 (Tenn.

2009) (“[B]oth this Court and the Court of Appeals have declined to invoke Tenn. R. App.

P. 14 with regard to [] facts that are irrelevant[.]”).2

To the extent that the trial court’s ruling could be construed as also resolving other “post-

judgment” matters raised in a January 2021 motion for a stay or the February 2021 motion to alter, amend,

or vacate, we note that these “post-judgment” motions still did not arise from the contempt proceeding,

which was not filed until almost a year later, in December 2021.

Plaintiff had also filed a motion to dismiss Defendants’ motion to consider post-judgment facts.

We hereby deny this motion as moot.

- 14 -

B. Nonsuit

We now consider both parties’ arguments regarding Plaintiff’s nonsuit. We begin

by returning to the language of Rule 41.01(1):