Michael Gersper v. Jonathan Turner

This is an interlocutory appeal pursuant to the Tennessee Public Participation Act (“TPPA”), Tenn. Code Ann. § 20-17-101 to -110, challenging the denial of the petition to dismiss all three claims asserted by the plaintiff. After the defendant filed his TPPA petition, the plaintiff voluntarily dismissed two of his three claims, leaving only his claim for malicious prosecution. While the TPPA petitioner sought to adjudicate all three claims under the TPPA, the trial court ruled that the only remaining issue was whether the plaintiff “has properly plead a claim for malicious prosecution and whether this action should be dismissed pursuant to TPPA.” Following a hearing limited to the malicious prosecution claim, the trial court denied the petition to dismiss without setting forth the reasons for its decision. On appeal, the TPPA petitioner contends he was wrongfully deprived of a decision on his petition concerning the two claims the plaintiff voluntarily dismissed. He also contends the trial court erred in denying his TPPA petition to dismiss the malicious prosecution claim. Relying on the Supreme Court’s most recent ruling in Flade v. City of Shelbyville, ––– S.W.3d ––––, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *5 (Tenn. Oct. 9, 2024), we affirm the trial court’s determination that the TPPA petitioner was not entitled to a decision on the two voluntarily dismissed claims. As for the trial court’s denial of the petition to dismiss the remaining claim, malicious prosecution, we have determined that the TPPA petitioner established that the TPPA applies to the claim presented, which shifted to the plaintiff the burden to establish “a prima facie case for each essential element of the claim in the legal action.” See Tenn. Code Ann. § 20-17-105. We have also determined that the plaintiff failed to establish an essential element of his malicious prosecution claim, that the proceeding brought against him by the defendant “terminated in the plaintiff’s favor.” See Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, 669 S.W.3d 741, 746 (Tenn. 2023). Accordingly, we affirm the trial court’s decision to not adjudicate the first two claims after they were voluntarily dismissed but reverse the trial court’s decision denying the TPPA petition to dismiss the malicious prosecution claim and remand with instructions to dismiss that claim. Further, the TPPA states that, “[i]f the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party . . . [c]ourt costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition.” Tenn. Code Ann. § 20-17-107(a), (a)(1). Accordingly, we remand with instructions for the trial court to make the appropriate award as it pertains to the costs and fees incurred in the trial court and on appeal that pertain to the TPPA petitioner’s efforts to dismiss the malicious prosecution claim.