Tennessee Litigation Abuse

An abusive civil action means a civil court case filed against you that meets all of these three factors:

1. It was filed by someone you have a “civil action party relationship” with, which is defined as:
   • your current or former spouse;
   • someone with whom you live or have lived;
   • an adult you are dating or have dated, or have or had a sexual relationship;
   • an adult related to you by blood or adoption;
   • an adult related to you by a current or former marriage; or
   • the adult child of a person described in the above five paragraphs;¹
2. The case is intended primarily to harass or maliciously injure you, which means it will:
   • completely use up, reduce, hurt, or change your financial resources for the worse, although there are a few exceptions;
   • prevent or interfere with your ability to raise your child(ren) in the way you believe is appropriate, unless the abuser has a lawful right to interfere and a good faith basis for doing so;
   • force or attempt to force you to agree to a compromise that is against your interest regarding financial, custodial, support, or other issues that have already been decided in your favor by a court;
   • force or attempt to force you to do something, to not do something, or to change the way you do something that is legal and that you have the right to do;
   • hurt or attempt to hurt your health or well-being;
   • prevent or interfere with your ability to pursue a livelihood or lifestyle as you did before the filing of the abusive civil action; or
   • hurt your reputation in the community or alienate your friends, colleagues, attorneys, or professional associates through the use of unnecessarily complex, lengthy, or intrusive interrogatories or depositions;² and
3. One of the following is true:

• the legal claims against you are not based on:
  
  • any existing law;
  • a reasonable argument that the current law should be changed; or
  • a reasonable argument for passing a new law;
• there is no evidence for the factual allegations against you; or
• one or more of the issues that the abuser is using as the basis of the current case against you have already been filed in another court, and the abuser lost in that other court after the issues were litigated.³ 

¹ Tenn. Code § 29-41-101(5)
² Tenn. Code § 29-41-101(6)
³ Tenn. Code § 29-41-101(1)

If you make a claim of an abusive civil action, the judge will hold a hearing where both parties can present evidence, testimony, etc.¹ There are certain circumstances that will create what is called a “rebuttable presumption” that the court case against you is, in fact, an abusive civil action. This means that if, at the hearing, you can show one of the following situations has happened, the judge will assume the litigation is abusive and the abuser would then bear the burden of proving otherwise:

1. The same or substantially similar issues have been litigated in any court between you and the abuser within the past five years and the judge heard the evidence and made a decision (decided on the merits) or it was dismissed “with prejudice,” which means it cannot be re-filed;
2. The same or substantially similar issues have been brought against you by the abuser in front of a regulatory or licensing board, and the case was dismissed after a contested case hearing;
3. The abuser has been punished (sanctioned) in the past ten years under Tennessee Rule of Civil Procedure 11 or a similar rule or law in another state because s/he filed one or more cases against you that were found to be without a legal basis (frivolous), harassing (vexatious), or an abusive civil action involving the same issues; or
4. The abuser has been found by a court in another judicial district to have filed an abusive civil action and that court placed pre-filing restrictions on him/her.²

¹ Tenn. Code § 29-41-104
² Tenn. Code § 29-41-105

If the case against you is found to be an abusive civil action, the abuser (an “abusive civil action plaintiff”) is required to ask the court for permission before filing a new case or serving papers in an existing case against you.¹ These restrictions will last for the time period listed in the order that the judge issues after the hearing.²

If the abuser wants to file something new, s/he will have to appear before the judge who placed the pre-filing restriction. The judge has the power to have both you and the abuser testify to decide whether the new case would also be an abusive civil action. However, there will be a rebuttable presumption that the case against you is an abusive civil action, which means it will be up to the abuser to prove that it is not.³

If the judge decides the proposed case would be an abusive civil action, the abuser will not be allowed to file it and the judge will include in the order the time when the abuser will be next allowed to try to file a new case.⁴ If the judge decides the proposed case would not be an abusive civil action, the judge will issue an order allowing the filing. This order must be attached to the court papers that will be served on you.⁵ Either way, the judge’s final decision will be made in writing.⁶ 

If the abuser is given permission to file the new case but later attempts to change the parties or issues in a way that the judge determines would make the case an abusive civil action, the judge will pause (continue) the case and send it back to the judge who granted the permission for additional review.⁷

If you receive papers from the abuser that do not include a court order allowing the papers to be filed or served, all you need to do in response is to get certified copies of the order where the abuser was found to be an abusive civil action plaintiff and send it to both the judge where the new case was filed and the judge who issued the original order. The new case should then be dismissed. You do not have to respond in any other way. If the legal papers ask you to appear for depositions, you do not have to attend or produce any other discovery.⁸

¹ Tenn. Code § 29-41-101(2)
² Tenn. Code § 29-41-107(a), (b)
³ Tenn. Code § 29-41-107(c)(1), (2)
⁴ Tenn. Code § 29-41-107(c)(3)(A)
⁵ Tenn. Code § 29-41-107(c)(3)(B)
⁶ Tenn. Code § 29-41-107(c)(4)
⁷ Tenn. Code § 29-41-107(e)
⁸ Tenn. Code § 29-41-107(f)