### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 30, 2005
WILL HENDERSON AND 

### EXPR ESS RE FUND S, INC ., d/b /a HENDERSON TA

X SERVICE v. C LEAR CHANN EL BROADCAS TING, INC., JANICE FULLILOVE, AND BRUCE DEMPS
An Appeal from the Circuit Court for Shelby County CT-004117-02 Donna M. Fields, Circuit Judge

No. W2004-02903-COA-R3-CV - Filed Septem ber 21, 2005

This is a defamation case. After listening to a loca l talk radio show, the plaint iffs filed a lawsuit agains t the def

endants, assertin

g that th e defen

dants had broadcast defamatory material on the radio show conc erning

the plain tiffs’ bu siness p ractices. Th ere wa s no recording of the talk r adio show. In a bench

trial, many witnesses

testifie d about sta

tements ma

de on the show. Afte

r the tria l, the trial court found that there were so many different versions, there was no way to deter mine what
was actually said on the r adio program. The trial court concluded tha t, assuming unflattering statemen ts were made, they did not damag e the plaintiffs’ reputations. The trial court also concluded that, even if the statements made were defa matory, the plaintiffs di d not prove any injury . The plaintiffs appeal. We affirm, finding that the e vidence does not pr

eponder ate ag ainst

the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; the Judgment of the Circuit Court is Affirmed

H OLLY M. K IRBY , J., delivered the opinion of the Court , in wh

ich W. F RANK C RAWFORD , P.J.,W.S., and A LAN E. H IGHERS , J., joined. StephenR. Le ffler, f

or the ap pellants Wi ll Hender

son and Expr

ess Refun ds, Inc., d/b/a Henderson Tax Service.

Louis P. Britt a

nd Keith R. Thomas, f

or the ap pellees Clear Ch annel Broadcasting, I nc., Janice Fullilove , and Br

uce Dem ps.
OPINION

This case arose on a Sick and Tired Tue sda y. WD IA Radio Station in Memphis, Tennessee has a talk radio p rogram, hosted by Janis Fullil ove on we eknigh ts from 9:0 0 p.m. to 11: 00 p.m. Fullilove hosted a free-wheeling talk sh ow entitled “Janis Fullilove Unleashed,” with a different theme each nig

ht. Tuesd ay s were d

esigna ted “Sick and Tire d Tuesda

ys” in which li steners

would ca ll1 Plaintif f/Appellant Express Ref unds, I nc., which does b usiness as Hen derson T ax Service, is a tax prepar ati on and bookkeeping s ervice

.

2 Prior to trial , the plai ntif fs announced a voluntary dis missal of t he claim against

Norman R edwing.
-2- in to discuss something they we re sick and tired of. WDIA radio station did not record Fullilove’s show.

OnFebruary

12, 2002, freque

nt listene r Norman Redwing (“Redwi ng”) c alled into

the “Sick and Tired Tuesday

” show and told Ful lilove o n the air that he was sick and tired of a woman harassinghis niece, Shaunte Winfrey ( “Winfrey”) . Redwing told Fullilove that this woman had been having an affair with Winfrey ’s husband, and had harassed Winfrey, stolen her mail, and f axed messages to her employer

. It i s u nc le ar wh et he r R ed wi ng id en ti fi ed th e w om an as Ch er yl Henderson (“Ms. Henderson”). At any rate, after hearing Redw i ng’s ca ll to the show, Ms. Henderson called Fulli lov e’s show as we ll. The pr oducer o f the ra

dio show sc

reens c allers a

nd sends the host a
messa ge during the show identify ing callers who are on

hold. Fullilove was sent a message that the
woman about whom Redwing had complained was on hold. Fullilove took

Ms. Henderson’s call on the air and apparently

put her on a conference

call with Redwing, in which Ms. Henderson identified herself by name and a

ddressed Redwing’s accusations. While Ms. Hend ers on was on the air, Fullilove was se nt ano ther m essage indicating that Redwing’s niece, Winfrey , whose husband was purporte dly

involved w

ith Ms. Henderson, had called in and was on hold. Fullilove th en appa rently putboth Winfrey

and Ms. Henderson on

a conference call on the air, a nd a colorful exchange between the two women ensued.

Other listeners subsequently ca lled the show to comment on Ms. Henderson’s morals or lack thereof, and at least one caller claimed to know Ms. Henderson and acc used h er of ha ving a propensi ty to engage in aff

airs with married men. During the course of the ma ny acc usations and
cros s-accu sations, Ms. Henderson was identified as being employ ed b y Plaintiff/Appellant Hender so n Tax Service, 1 and was a

ccused o f misusing

informat i on from He nderson Tax Service for her own purposes , in order to gain information about Winfrey , and a comment was made to the effect of “y ou never know what the y

do with your information.” Ms. Hende rson’s father and the owner of Hen derson

Tax Service, Plaintiff/Appellant Will Henderson (“Mr. Henderson”) hear d part of Fullilove’s show and the accusations against his daughter; however, the re is no indication that he was identified by name on a

ir on the show.

After this edition of

the Sick and Tired Tuesday show finally ended, the

controversy c ontinued inthe form of a

defamation

lawsuit. On July 23, 2002, Mr. Henderson and He nderson Tax Service filed a complaint against Clear Channel Broadca sting, Inc., which owns and ope rates the WDIA r

adio station, Clear Channel’s senior vice pre sident Br

uce Dem ps, Fulli love, and Re dwing. 2 In the lawsuit, the plaintiffs alleged that the statements made on the Janis Fullilove Unleashed show on February 12, 2002, defamed Mr. Henderson and Hender son Tax Service.-3-

Inresponse, on September 5, 2002, Clear Channel, Demps, and Fullilove (collectively “ Clear Channel”) filed an answer and counter-claim (“ Counter-claim”). In the a nswer, Clear Channel admitted that Redwing called the radio station on February 12, 2002 but denied that Clear Channel participated

in defaming Mr. Hen ders on or Henderson Tax Service. Clear Channel asserted, inter alia , that Mr. Henderson’s claims were barre d by the statute of limitations, that the allege d defamatory

statements were true or substantially true, and that Mr. Henderson and Hend erson Tax Service suffered no injury from the statements.

Inits Counter-claim, Clear Channel asserted that Mr. Henderson, on behalf of Henderson Ta x Service, contracted to purchase promotional services from Clear Channel in Novembe r 2001 to run for six weeks during the 2002 tax season. The total value of the promotional services was $11,017.00. Clear Cha

nnel alle ged tha

t it provide d the ser

vices toMr. Hender son pursua nt to their agreement

but that Mr . Henderson refu se d to pay. Accordingly , Clear Channel claimed that Henderson was liable to Clear Channel for brea ch of contract in the amount of $11,017.00.

OnApril 21, 2003, Clear Channel filed a motion for partial summary judg menton its counterclaim against Mr. Henderson for breach of contra ct. By or der dated January

9, 2004, the trial court granted summary judgme

nt in favor of Clear Channel against Mr. Henderson on the cou

nter-c laim for breach of contr act. A jud

gment w as enter

ed aga inst Mr. Henderson in the amount of $11,017.00. A bench trial was then held on Mr. Henderson’s cla ims of defamation. It was undisputed that there was no record ing of th e Janis Fullilove Unleashed show on the eveningin qu es ti on . C on se qu en tl y, during the two-day bench trial held on June 21 and 22, 2004, the trial court heard testimony f rom numerous witnesses, each w ith a d ifferent recollection of the comments

made dur ing the c ourse of

the show. Withrespect to Mr. Henderson and Henderson Tax Service, Fullilove, Winfrey, and Fred Moore, the operator of the control boar d during the first hour of the show, all testified that Fullilove never made any derog atory statements about Mr. H enderson
or Henderson Ta

x Service. According to Winfrey , Fullilove asked Ms. Henderson if she was the
woman on Henderson Tax Service’s billboard, but tha t was the only mention, by Fullilove, of Henderson

Tax Service. Trineice Patrick, a producer at WDI A, tes tifi ed that she did not hear Fullilove make any

derogatory

comments about Mr. Henderson or Henderson Tax Service.

The odore Dorsey

, a long -time clie

nt and fr iend of Mr . Henderson, testif ied that F ulli lov e stated on the show that this type of business should be closed down, in re ference to Henderson Tax Service. Emma Denton, another client and friend of Mr. Henderson, testified that she heard Fullilove make a comment to the effec t of “y ou never know wha

t they will do with

informat ion” fro m clients. Mr. Hend erson te stified th at he re

membere d Fullilov e making such a sta

tement as well.

OnJuly 13, 2004, the trial court issued its ruling. The trial court observed that there were so many different versions of what transpi red du ring F ullilove’ s talk show that it wa s difficu

lt to determine what was

said. Eve

n so , the court found the alleged defama tory statements did not constitute a serious threat

to the reputation of either Mr. Henderson or Hende rson Tax Service. The alleged derogatory

statements were made about Ms. Henderson, th e court ruled, and not about-4-

Henderson

Tax Servic e or Mr. H enderson. Moreov er, the t rial cou rt found t hat, even if the sta tements made on the radio were defamatory as to Mr. Henderson

or Henderson Tax Service, Mr. Henderson had failed to prove that the alleged defa mation had caused

any injury to him or tohis business. The trial judge noted that Mr. Hende rson h ad asserted that he had suffered pe rsonal humiliation and mental anguish

because of the ra dio show, b

ut she obse

rved tha t such a r eaction would be norma l in
a father who just heard on a public radi o broadc ast that his daughter was having an a ffair with a married man, and that

Mr. Henderson offered no proof as to the e xactcause of

his emotional distre ss. The tri a l court also found that the evidence did not show clearly that Henderson Tax Service had suffered any injury

as a result of

the broadcast. The plaintiffs presented conflicting testimony

as to how many clients Hende rson Tax Service ha d lost or gai ned during the period following the broadca st, and they pre sented no testimony from any client stating that he or she had left Henderson Tax Service

because of what w as broad

cast on th e radio. In lig

ht of this e

vidence , the tr

ial cour t concluded

that there was no defamation of the pla intiffs a nd no injur

y to the plaintiffs and dismissed the claim with prejudice.

OnAugust 4, 2004, the plaintiffs moved for a new trial, arg uing that the court’s ruling was notin accordance with the evidence pr esented at trial. This was denied on O ctober 19, 20 04. On November 16, 2004, the plaintiffs filed a notice of appeal.

Onappeal, the plaintiffs argue that the trial cour t er red in find ing that there was no defamation, noting that acc usations o f identity theft in th e curre

nt social c limate ar

e espec ially damaging because of

the pervasiveness of the crime. I n addition, the plaintiffs contend that the timing of the broa dcast, inFebrua

ry , made the

derog atory

statemen ts partic ularly damagi ng bec ause tha

t is the time that many people be gin tax preparations.

Since this case was trie d by the trial court sitting without a jury , we review the trial court’s factual finding s de novo accompanied by a presumption of correctness unless the preponderanc e of the evidence is otherwise. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996); Tenn. R. App. P. 13(d). The trial court’s legal conclusions are reviewe d de novo with no presumption of correctness. Campbell

, 919 S.W.2d at 35.

T o the extent t

hat the tr ial cour t’s conc lusion hing ed on dete rmination s of the wi

tnesses’
cr ed ib il it y, we defer to these determinations. “When the resolution of the issues in a case depends upon the truthf

ulness of witnes ses, the trial judge, as the trier of fact, ha s the opportunity to observe the witnesses in their manner and demeanor while tes tify

ing and is in a far better p osition tha

n this Courtto decide those issues. The weight, faith, and credit to be given to a ny witness’s testimony

lies inthe first

instance with the trier of fact, and the credibility accorded will be given

great weight by the appellate court.” Klosterman De v. Corp. v . Outlaw Air craft Sales, Inc. , 102 S.W.3d 621, 635 (Tenn . Ct. App. 2 002) ( quot ing McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995)).

Inorder to establish a prima facie case of defamation, the p laintiff must prove that: “(1) a party published

a stateme nt; (2) with knowledge that the statement is false and defaming to the other;
or (3) with r eckless disreg ard for

the truth of the statement

or with ne glige

nce in fa iling to a scerta

in3 The extent to whi ch t he plai nti ffs seek t o hold the defendant s lega lly responsi ble for

the comment s of an

an onymous caller is un clear. T he issue was no t add ressed by the trial c ourt, an d ou r hold ing on app eal makes i t
unne cessa ry for this C ourt to add ress it.
-5- the truth of the statement.” Sullivan v. Bap tist Mem’l H osp. , 995 S.W.2d 569, 571 (Tenn. 1999). To recover damages , the plaintiff must show that the statement resulted in injury to the plaintiff’ s reputation

or standing in the community. Quality Auto Parts Co. v. Bluff City Buick Co. , 876 S.W.2d 818, 820 (Tenn. 1994). The plaintiff must prove actual injury fr om the alleged

defamation. Davis v. The Tennessean , 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). The statement must be more thansimply

annoy ing, off ensive or embarr assing; it must

constitute a “serious threat to the plaintiff’s reputation” and hold the plaintiff up to “public hatred, contempt or ridicule.” Stones Rive r Motors, Inc. V. Mid-South Pub’g Co. , 651 S.W.2d 713, 719 (Tenn. Ct. App. 1983).

In th is case, there was evidence that Ms. Hende rson was identified as an employ ee of Henderson

Tax Se rvi ce, evidence that an anony mous caller 3 accused Ms. Henderson of misusing Winfrey’stax informat

ion, and e vidence that talk show host Fullilove remarked that “y ou never know what they do with y our infor mation” a nd that “t his ty pe of busi ness”should be shut down. A ll of this eviden ce, h owever, was disputed. The trial court found that there w as no defamation of Mr. Henderson

or Henderson TaxService, implicitly finding that the testimony on these statements was notcredibl e. We acc ord gre at weig ht to the tr

ial cour t’s dete rminatio ns of credibility, and see no reason to disturb it on appeal. See Stinson v. Stinson , 161 S.W.3d 438, 440 (Tenn. Ct. App. 2004). The trial court found

that the plaintiffs had not proven that the alleged statements constituted a ser ious threat to the reputations of

either Henderson Tax Service or Mr. Henderson, a nd that no injury to the businesswas prov en. Fro m our review of the record , the evid

ence do es not pre

pondera te aga inst this findi ng. Under all of these circumstances, we find no e rror in the trial court’s dismissal of the plaintiffs’ claims.

The decision of the tri al court is affir med. Costs o f this app eal are taxed to the

appella nts, Will Henderson

and Express Refunds, Inc. (d/b/a Hende rson Tax Service), or their surety, f or which
ex ec ut io n m ay i ss ue if

ne ce ss ar y.

______________________________ HOLL Y M. KIRBY, JUDGE