An Inexhaustable Fighting Spirit

The Tennessee Court of Appeals reversed and remanded a trial court decision declining to dismiss a civil action

Over a period of more than ten years, the beneficiary of certain family trusts filed a total of seven lawsuits concerning their administration against his sister, as trustee, and others. This is at least the sixth in a series of appeals involving these parties. [case citations omitted] Together, we refer to these lawsuits as the “Trust Lawsuits.” Having failed to exhaust their fighting spirit in the prior cases against one another, the siblings each filed an action against the attorneys who have represented the brother in the Trust Lawsuits. This appeal involves the claim of the non-client sister against her brother’s attorneys. A seventh appeal in which the brother sued his own attorneys is also pending before this Court.

The genesis of this appeal involved a dispute between siblings Alan Cartwright and Plaintiff/Appellee Alice C. Garner over the administration of various trusts by Mrs. Garner and her husband, Plaintiff/Appellee Alan Garner (together with Mrs. Garner, “the Garners”).  After over a decade of litigation in which the Garners prevailed at essentially every turn, on August 12, 2019, the Garners filed a complaint in the Shelby County Circuit Court (“the trial court”) for damages against Mr. Cartwright’s former attorneys, Jerry E. Mitchell and Justin E. Mitchell, their former law firm,  and Justin Mitchell’s current law firm, Mitchell Law Firm, LLC (collectively, “Appellants”)

Trial court action

The trial court...framed the threshold question under the TPPA as “whether [Appellants] were exercising their right to petition in the underlying lawsuits, thereby providing them with the protection afforded by the Tennessee Anti-SLAPP statute.” After citing law from California and Texas, the trial court ruled that “a lawsuit by a non-client alleging causes of action against an attorney in representing the attorney’s client in the underlying litigation generally will fall within the protection of that state’s Anti-SLAPP statute which satisfies the first prong of the statute.” But the trial court found that an “exception to the general rule” must exist when the plaintiff argues that he or she was “injured by the intentional malpractice of [the defendant attorneys], who breached their fiduciary duty to their client for their own personal gain in filing these multiple frivolous lawsuits.” So the trial court found that the petition to dismiss should be denied, but denied the Garners’ claim for attorney’s fees. This appeal as of right followed.

Key

In sum, we conclude that the trial court’s decision to engraft an exception to the general applicability of the TPPA to Appellants’ actions in this case is not supported by the plain language of the TPPA. Instead, we conclude that Appellants met their burden to establish the first prong of the TPPA. The trial court’s ruling that Appellants’ petition be dismissed on this basis is reversed. The burden therefore shifted to the Garners to “establish[] a prima facie case for each essential element of the claim in the legal action.” Tenn. Code Ann. § 20-17-105(b). In the alternative, Appellants may “establish[] a valid defense to the claims in the legal action.” Tenn. Code Ann. § 20-17-105(c).

Appellants assert that this Court should dismiss the Garners’ complaint because they have established several defenses to the action, including the litigation privilege, the inapplicability of the tort of another doctrine, and the expiration of the applicable statute of limitations. The Garners respond that these issues were not properly preserved on appeal or are not ripe for review in this appeal because they were not ruled on by the trial court. We agree on the latter.

It's remanded but it aint over

Here, the trial court denied Appellants’ motion to dismiss solely on the basis that Appellants had not met the first prong of the TPPA burden-shifting framework. We therefore conclude that the proper remedy is to remand to the trial court for consideration of these remaining issues.

Noted ethics lawyer Lucien Pera argued the case for the Appellants. (Mike Frisch)