Laferney v. Livesay, E2021-00812-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtKRISTI M. DAVIS, JUDGE
PartiesRANDOLYN LAFERNEY v. KIM LIVESAY ET al.
Docket NumberE2021-00812-COA-R3-CV
Decision Date22 November 2022

RANDOLYN LAFERNEY
v.

KIM LIVESAY ET al.

No. E2021-00812-COA-R3-CV

Court of Appeals of Tennessee, Knoxville

November 22, 2022


Session June 22, 2022

Appeal from the Circuit Court for Washington County No. 39969 James E. Lauderback, Judge

Plaintiff Randolyn Laferney filed a tort action against several defendants, alleging causes of action for, inter alia, libel, civil conspiracy, and malicious prosecution. The allegations arose primarily out of social media comments and posts made by the defendants regarding Ms. Laferney. On December 10,2020, the trial court dismissed the legal action as to some, but not all, of the defendants pursuant to Tennessee's anti-SLAPP statute, the Tennessee Public Participation Act ("the TPPA" or "the Act"). Several months later, after the trial court awarded the dismissed defendants their attorney's fees, Ms. Laferney appealed to this Court. Because we conclude that the notice of appeal was untimely pursuant to the TPPA, the appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded

Brad A. Fraser and Ethan D. Lavelle, Knoxville, Tennessee, for the appellant, Randolyn Laferney.

Grace E. Studer, Johnson City, Tennessee, T. Dillon Parker, Morristown, Tennessee, and D. Scott Hurley and Ryan N. Shamblin, Knoxville, Tennessee, for the appellees, Janet McDaniel Keener, Kim Livesay, Lourienne Long, Paezha Marae McCartt.

Rebecca Adelman, Memphis, Tennessee, for the appellees, Tammy Davis and Nicole Stuwa.

KRISTI M. DAVIS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH D. MICHAEL SWINEY, C.J., AND JOHN W. MCCLARTY, J., JOINED.

OPINION

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KRISTI M. DAVIS, JUDGE

Background

This is a TPPA case arising from statements made online regarding Ms. Laferney (hereinafter, "Appellant") and her dog training/boarding business, Off Leash K9 Training, LLC ("Off Leash"). In early May of 2019, a dog named Dallas died while under the care of Appellant's employee who was supposed to be training the dog. A necropsy revealed that the dog essentially starved to death.[1] Defendants Tammy Davis and Nicole Stuwa, employees of Washington County Animal Control, investigated the dog's death. Defendant Stuwa later swore out a warrant regarding Appellant and her employee, and both were charged with aggravated animal cruelty in the General Sessions Court for Washington County. This story was covered by the local news.

Aside from Defendants Davis, Stuwa, and Washington County, the remainder of the defendants were involved in this case because of social media posts and comments about Appellant. Defendants Livesay, McCartt, West, Bryant, Keener, Carley, Long, and Lejeune all discussed Appellant, her dog training business, and/or the animal cruelty charges on social media, particularly Facebook. Some of the defendants posted news articles about the criminal charges. For example, Defendant Livesay posted,[2] in part, the following on her Facebook page:

[UPDATE] on the dog DEATH at Off Leash K9 training in Johnson City. The following information was obtained through CREDIBLE sources whose involvement in the situation will not be discussed. Also, if this were not factual, would have never even made the post yesterday. . . It is being reported by the trainer and the owner of the franchise that this dog died in a tragic accident when his head was caught in a wire crate yesterday morning. This scenario is 100% INCOMPATIBLE with the facts
This dog lost 2/3rds of his body weight while in their care
This dog had sores on his body
This dog had no scratches, cuts or bruising to his head or neck.
This dog's body had been frozen and thawed.
Is it any wonder the owner of this franchise offered to immediately have this dog's body cremated at her expense???
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Also, I was contacted by the manager of another facility within this owner's franchise holdings. I was asked to take my post down or to, at the very least, amend my post from yesterday so that no other trainers will lose their livelihood. I refused[.]

Defendant Livesay posted several local news articles covering the story on her Facebook page. Defendant Livesay also made a separate post claiming that Appellant previously owned another dog training facility in Florida and that the incident with Dallas was not "an isolated incident." Defendant Bryant responded to that post with the following comment:

[Appellant] has been burning bridges in the rescue community for at least 5 years. The rescue she was associated with prior to starting with 0LK9 completely distanced themselves from her. And there have been at least two reported cases of neglect under her FL franchise. No telling how many people she has paid off/settled with outside of the public eye. To[o] little, to[o] late!

The posts continued in this regard. At one point, Defendant Carley gave Appellant's Knoxville business, Duck Donuts, a poor Yelp! review, noting that Appellant was the owner of Duck Donuts and had been charged with aggravated animal cruelty. Defendant West left a review for the dog training business noting that a dog had recently died while in the business's care, and Defendant Keener started a petition regarding Appellant. The petition was published on May 9, 2019, and was addressed to the "Prosecuting Attorney." Titled "#JusticeForDallas - Puppy starved to death at training facility[,]" the petition contained the following description:

Dallas, an 8-month old miniature bull terrier, had been taken to Off Leash K9 Training LLC, Johnson City, TN on March 18 for the two-week training period. On May 2, Dallas' family received a text message from Randi LaFerney, owner of Off Leash, asking the dogs owners to call them. At that point, the owners were notified the dog had passed away overnight. LaFemey and Andrew Hunigan, a trainer at the facility, are both charged with aggravated cruelty to animals, a felony in Tennessee. We, the undersigned, request that the defendants be prosecuted and sentenced to the fullest extent of the law, if they are found guilty. This appears to be flagrant neglect/abuse that resulted in Dallas's death by starvation. We are sick of seeing our pets abused, abandoned, neglected and tortured. We want to start by showing the rest of the country that we are not heartless, and we care for these sentient beings. We also call for regular inspections of all facilities that board to train, or day care facilities. Our legislators need to take responsibilities for the lax and superficial animal welfare laws in this state.
#JusticeforDallas
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The social media buzz surrounding the criminal case against Appellant continued in this manner.

On June 5, 2020, Appellant sued all of the aforementioned defendants, as well as Defendants Davis, Stuwa, and Washington County, in the Washington County Circuit Court (the "trial court"). Appellant alleged causes of action for false light invasion of privacy, malicious prosecution, intentional interference with business relations, libel, and civil conspiracy against Defendants Livesay, McCartt, West, Bryant, and Keener. Appellant alleged malicious prosecution against Defendants Stuwa and Davis, and alleged intentional interference with business relations and civil conspiracy against Defendant Davis. Appellant also sued Washington County for negligent hiring, supervision, and training of Defendant Stuwa, the animal control employee who swore out the warrant for Appellant's criminal charges. Finally, against Defendants Carley, Long, and Lejeune, Appellant raised claims for false light invasion of privacy, intentional interference with business relations, libel, and civil conspiracy.

Attached to the complaint were several exhibits reflecting the online activity complained of by Appellant. Generally, Appellant claimed that the defendants made false statements "concerning the facts of Dallas' death; [Appellant's] involvement with Dallas' death and [Appellant's] criminal culpability, as well as, the falsity of their publications made concerning [Appellant's] businesses and business relationships." Appellant also maintained that the defendants conspired with one another to bring about the animal cruelty charges. Appellant sought 8.5 million dollars in compensatory damages, as well as a million dollars in punitive damages.

Defendant Keener filed a motion to dismiss the claims against her pursuant to the TPPA on July 20,2020. Keener argued that Appellant's suit was a strategic lawsuit against public participation ("SLAPP") intended to chill Keener's right to free speech. Keener asserted that the TPPA prohibited the suit because Keener's statements related to a matter of public concern, specifically, animal welfare. Attached to the petition was an affidavit by Defendant Keener, in which she maintained that she learned about Appellant's criminal court case from the local news and believed what she had seen on the news to be true. Keener's affidavit also provided that the purpose of the petition was to "seek justice for Dallas."

Other defendants filed motions for a more definite statement, claiming that the allegations in the complaint were insufficient because the complaint did not provide the specific statements that Appellant claimed were tortious. A hearing was held on August 31, 2020. Appellant's counsel contended that "[i]n regards to the [TPPA], it's our overarching argument that it does not apply to this matter." Appellant maintained that Defendant Keener first published her online petition on May 9, 2019, and that the TPPA therefore did not apply because it did not go into effect until July of 2019. Appellant also

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argued that animal welfare is not a matter of public concern pursuant to the TPPA and that Keener's statements were not the type the TPPA intends to protect.

The trial court determined at the August 31, 2020 hearing that Defendants Stuwa, Davis, Livesay, McCartt,...

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