1 William P. Livings ton was re

prese nted a t tr ial by David

L. Leonard, G reeneville, Tenne ssee, who also filedthe appe llate brief. M r. Leona rd was allo wed to withdraw as counsel before this cas e was submmitted and oral argument was waived by Mr. Livingston.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE May 7, 2001 Session WILLIAM P. LIVINGSTON, JR. v. MIKE HAYES, ET AL 

### . Appeal from the Circuit Court for Hamblen County No. 99-CV-78 Richard E. Ladd, Judge FILED JULY 23, 2001
No. E2000-01619-COA-R3-CV

In this appeal from the Circuit Court for Hamblen County, the Plaintiff/Appellant, William P. Livingston, Jr., questions whether the Trial Cou rt erre d in entering a summary judgment dismissing his action for libel against the Defendants/Appellees, Mike Hayes, et al. We affirm the judgmentof the Trial Court and remand for collection of cost s below. We adjudge costs of the appeal against Mr. Livingston and his surety. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed;

Case Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D.S USANO , J R ., and D. M ICHAEL S WINEY , JJ., joined. William P. Livingston, Jr., Mountain City, Tennessee, Appellant, Pro Se 1
Earl Jerome Mels

on, Knoxville, Ten

nessee, for the A

ppellee, Joel Sea

l. Gary Prince, Knoxville, Tennessee, for the Appellees, Mike Hayes and Charles Long.
William O. Foutch, Morristown, Tennessee, for the Appellees, Jack

Fishman, Lakeway

Publishers, inc., Citizen Tribune and Robert Moore.
OPINION-2-

This proceeding aris

es from a libel ac

tion filed by the Pla

intiff/Appellant,

William P. Livingston, Jr., on March 23, 1999, against the Defendants/Appellees, Lakeway Publisher's, Inc., and its subsidiary, the Citizen Tribune, a newspaper published in Morristown, along with Jack Fishman, the publisher and editor of the Citizen Tribune, and Robert Moore, a reporter for the Citizen Tribune and author of the articles which are the subject of Mr. Livingston's complaint. Other Appellees in this case who were named a

s defendants in the

la wsuit in bo th their individual and official capacities included the following: Mike Hayes, a detective with the Hamblen County Sheriff's De partment; Charles Long, the former Sheriff of Hamblen County; and Joel Seal, the Chief of Police for

the City of Morristown. Other defendan ts named in the laws

uit, but who are not parties to this appeal, were David Purkey, the County E xec utive and Fiscal Of ficer for the City

of Morristown; and

J.B. Shockley, the Mayor and Fiscal Officer for the City of Morristown. On June 17, 1999, after hearing motions to dismiss file d by the defendan

ts, the Trial Court entered an order dismissing Mr. Livingston's complaint as to Mr. Purkey and Mayor Shockley. Based upon the statute of limita tions under the Gov

ernmental T

ort Li ability Act, the co

mplaint was also dismissed as to Detective Hayes, Sheriff Long and Chief Seal to the extent that these

defendants were sued in their official capacities. The Court did not dismiss Mr. Livingston's complaint as to Lakeway Publisher's, Inc., the Citizen Tribune or Robert Moore (hereinafter ref erred t o as the 'Media Defendants'

). Nor did the Court

dismiss the complain

t as to Detective Hayes, Sheriff Long or Chief Seal to the extent that they we re sued in their

individual capacities. The Court further ruled that the remaining grounds for the motions to dismiss would be treated as motions for summary judgment and all parties were

allowed time to subm

it supporting affid

avits.
On March 1, 20 00 , based upon arguments of counsel, statements of material fact filed pursuant to T.C.R.P. 56.03 and authorities cited, the Court entered its order for summary judgment in favor of the rem

aining Defendan

ts and the case wa

s dismisse d. On March 31, 2000, Mr. Livingston filed his

notice of appea

l.
The sole issue presented for our review, which we restate, is wh ether the Trial Co

urt erred in granting a summary judgment in favor of the Defendants. It is our con clusion that the summary judgmentin favor of the de fendants was pro

per and the judgme

nt is affirmed for

the reasons set f

orth below.
In reviewing the decision of a trial court to grant a motion for su mmary judgment we are governed by a well settled standard. As thedecree of the trial court involves purely a question of law, it is not entitled to a presumption of correctness. See Rayford v. Leffler , 953 S.W.2d 204 (Tenn. C t. App. 1997). Our

sole duty is to review the record to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been m et. See Mason v. Seaton , 942 S.W.2d 470 (Tenn. 1997).
In Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993), the Tennessee Sup

reme Court stated as follows at page 214 with re

spect to Rule 56:-3- Rule 56 comes into play only when there is no genuine issueas to any materi al fac t and the moving party is entitled to a judgment as a matter of law. T hus, the issues that lie at the heart of evaluating a summary judgm ent motio n are: (1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whether the disputed fact creates a genuin e issue for trial. (

emphasis in origina

l)
The allegedly defam

a tory statements upon which Mr. Livingston bases his complaint appeared in tw o newspape r articles published in the Citizen Tribune on December 17, 1997, and December

18, 1997, respectively titled "Local Parolee Arrested For Possession Of Loaded Weapon" and "Former Grainger County Sheriff's Case To Be Heard By Grand Jury". Both articles describe the arrest and alleged criminal activity of Mr. Livingston, who was at one time Sheriff of Grainger County. The articles were written following a search of Mr. Livingston'sresidence and business on December

11, 1997, by the Ham blen County Sheriff

's Department, the

Morrist o wn Police Department

and the Third Judicial Task Force acting in conjunction with one another. Among the items seizedas a result of the search were several bottles of prescription medicine, food stamps, a .22 caliber pistol,

25 rounds of .22 caliber shells, a video cassette recorder, and a television set. At the time of the searc

h, Mr. Livingston wa

s on parole from a

twenty one year prison sentence which he received in 1985 for drug law violations. As a c onsequence of the discovery of the .22 caliber pistol, Mr. Livingston's parole was revoked and he was re-i ncarcerated. Thereafter, on May 14, 1999, Mr. Livingston was convicted of three c o unts of drug fraud for offenses committed on February 3, 1997; February 4, 1997, and June 11, 1997 and he was sentenced to an additional prison term of six years consecutive to his original sentence.
In his complaint,

Mr. Livingston asserts that the following two statements from the Citizen Tribune article of December 17,1997, are defamatory:
"W hen authori ties searched Li vingston's home, the

y found more than 2

5 bottles of pills, some of which had been prescribed to people other than Livingston." "A television set, video cassette recorder and food stamps were confiscated"
Mr. Livingston further

asserts that the following additional statements which appeared in the Citizen Tribune article of December 18, 1997, are also defamatory: "[Livingston] headed a diversified criminal organization that included drug traffickin

g, auto theft, home burglaries, shoplifting and insurance, food stamp and drug fra

ud, according to

police and sheriff's department authorities." "Livingston, a 59 year-old former Grainger County sh eriff and non-denominational Christian ministerwas the first person arrested in connection with the far-flung criminal enterprise, but he will not be the last, according to Detective Mike Hayes of the Hamb

len County

Sheriff's Department."-4-

"Livingston, who was convicted in 1985 f or s elling and conspiracy to sell Dilaudid, had a loaded .22 caliber pistol when aut horities executed a search warrant at his business and residence on Dec. 11"
"'We feel like taking him off the street will stop some shoplifting and also burglaries.' Sheriff Long said. 'We feel like he was fencing (stolen property). It was a big operation. It's a major bust.'"
"'The combined efforts of the three agencies certainly has had a positive impact on stopping a lot of criminal activity related to Mr. Livingston,' the police chief said." "Livingston has take

n 'extreme measu

res' to hide his ass

ets"
In Ali v. Moore , 984 S.W.2d 224 (Te nn. Ct. App. 1998) we noted the well settled law that in order to support

a claim for libel,

the plaintiff must prove that the statement complained of was false and defamatory and, at page 229 of that case, we cited Stones River Motor s, Inc. v. Mid-So

uth Publ'g Co., 651 S.W.2d 713 (Ten n. Ct. App. 1983), a

s follows:
The damaging words must be factually false. If they are true, or essentially true, they are not actionab

le, even though the

published state

ment c ontains other inaccuracies which are not damaging. Thus, the defense of truth applies so long as the "sting" (or injurious part) of the statement is true. ...it is not necessary to prove the literal truth of the accusationin every detail, and that it is sufficient to sh

ow that t he imputation is substan

tially true, or, as

it is often put, to j ustify the "gist," the "sting," or the "substantial truth" of the defamation.... W. Prosser, Law of Torts , sec. 116, p. 798 (4th Ed.1971).
Our review of the re

cord convinces u

s that the re is no genuine factual dispute as to the substantial truth of several of the statements which Mr. Livingston maintains are libelous and for that reason, if no other, it is our determination that summary judg me nt was warrante d with respect to those statements. The first statement weexamine in that regard appeared in the article of December 17, 1997, and rea

ds as follows:
"When authorities searched Livingston 's home, they found more than 25 bottle

s of pills, some of which had been prescribed to people other than Livingston"
An affidavit filed by Detective Hayes on July 19, 1999, attests that eightbottles confiscated during the search of Mr. Livingston's business and residence were identified as havi ng be en prescribed

to others. A receipt from the Hamblen County Sheriff's Department, incorporated in and attached to th e af

fidavit, itemizes

property seized

during the searc

h. The receipt sp

ecifically describes eight bottles of med icine and identif

ies them with

persons other than Mr. Livingston. In his affidavit

filed on July 29,1999, Mr. Livingston attests that "all of the bottles except for one were prescribed to me

based upon my best r

ecollection.".-5-

The 'gist' of the published statement regarding the confiscated bottles is that Mr. Livingston had prescription medicine in his possession which was not prescribed to him. Mr. Livingston denies that this is true as to all

butone of the bottles;

however, his admi

ssion with respect

to that one bottle is sufficient to confirm the substantial truth of the statement in question. Additionally, we find that Mr. Livingston's mere a

ssertion of his

"best recollection" does not create a genuine issue of material fact when compared to the attestation of Detective Hayes with its supporting documentation.
The next statement als

o appeared in the article of December 17, 1997,and read as follo ws: "A television set, video cassette recorder and food stamps were also confiscated."
In his complaint Mr. Liv

ingston asserts tha

t this statement pre

sents "t o any reasonable person that the described property was stolen when in fact it waslawfu lly owned by the pla intiff". However, the record shows that the described items were confiscated and Mr. Livingston does not contest that they were. As there is no question that the statement complained of is true, we find that summary judgment in favor of t he Defendants was proper. We further find that Mr. Livingston's argument that the word 'con

fiscate' implies the su bject property w as stolen is without me

rit. 'Confiscate' means "to seize by or as by authority". See American Heritage Dictiona ry 279 (1973). The word was acc

urately and appr

opriately used und

er the circumsta

nces.
The remaining stateme

nts complained of by Mr. Livingston which, in our determination, are true, all appeared in the article of December 18,1997. The first of these was publishedas follows: "Livingston, who was convicted in 1985 fo r se lling and conspiracy to sell Dilaudid, had a loaded .22-caliber pist

ol when authoritie

s execute d a search warrant at his business and residence on Dec.11."
Mr. Livingston admits in his complaint that a .22 caliber pistol was found in his apartment during the search, but contends that he was not present when the search was conducted and the pistol was not on his person when it was seized. Again, we look to the substance of the statement which, in this instance, is

that Mr. Livingston was in possession of a .22 caliber pistol. It was the possession of this weapon, whether on his per son or on his proper

ty, that resulted in

the revocation of

his parole. Under the facts prese

nted, we do not find

that it matters that the published statement does not specify that the pistol was found

in Mr. Livingston's ho

use and not on his person. Since the statement was substantially true summary judgment in favor of the Defendants was warranted. The next alleged

ly libelous stateme

nt is attributed to De

tective Hayes a

nd states: "Livingston, a 59 year -old former Gra inger County sheri

ff and non-denom

inational Chris

tia n ministerwas the first person arrested in connection with the far-flung criminal enterprise, but he will not be the last, ac

cording to Detec

tive Mike Hayes of

the Hamblen County S

heriff's Depar

tment"-6-

Specifically, Mr. Livingston objec ts to the article's

assertion that he

"was the fir st person arrested in connection with

the far-flung c

rimin al enterp rise...". There is no question that Mr. Livingston was arrested. Furthermore, Mr. Livingston's arrest was con necte d with 'criminal enterprise' as evidenced by the affidavit filed in support of the searc h warrant which attests that narcotic drugs had been purchased on his p remises and deliv ered to narcotic

s officers and th

at a reliable source had been advised by Mr. Livingston that there was stolen property on the pr

emises. Mr. Livingston was arrested in connection with 'criminal enterprise' in that the attes tat ions of criminal activity prompted issuance of the search warrant, the execution of which led to his arrest. The article correctly states that Mr. Livingston was arrested 'in

connection' with

a criminal enter

prise regardless

of whether he was arrested for engaging in a criminal enterprise. It is immaterial whether the enterprise was accurately described as 'far-flung' or whether Mr. Livingston was the first person arrested in conn

ection with it.
The next statemen

t we consider is at

tributed to Chief Se

al as follows: "'The combined efforts of the three agencies certainly has had a positive effect of stopping a lot of criminal activity related to Mr. Livingston,'"
Her e again, we find no genuine issue as to the essential truth of the statement . Detectiv e Hayes' affidavit of July 19, 1999, attests, and Mr. Livingston does not deny, that the search warrant was issue d at the behest of t he Hamblen County Sh

eriff's Depart

ment, the Morristow

n Po lic e Department

and the Third Judicial Dist rict Task Force a

cting in conjunctio

n and that, as a

result of the search, Mr. Livingston's pa role was revoked and he was re-incarcerated. Mr. Livingston was subsequently

convictedof drug fraud whi ch he was engage

d in prior to

the search and consequent re-incarceration. The statement is su bstantially true in that Mr. Livingston's re-incarceration effectively

prevented him from continued eng ag ement in drug fraud and, in that sense,' had a positive effect on stoppin

g a lot of criminal a

ctivity related to ' him.
Of the remaining four statements which Mr. Livingston contends are libelous, the following two are attributed to Sheriff Long: "'We feel like taking him off the streets will stop some shoplifting and also burglaries.'" "'We feel like he was fencing (stolen property). It was a big operation. It's a major bust.'"
In his complaint Mr. Livingston asserts that, in fa ct, none of the pr

operty confiscated during the search was d

etermined to be sto

len, nor were an

y charges filed i

n connection with t

he bust.
These statements are not actionable as to Chief Seal or Detective Hayes, if for no other reason than that the statements are not attributed t o either of these individuals, but only to Sheriff Long. In a ssessing the liability of Sheriff Long and the Media Defendants we are guided by the criteria set forth at section 5 80 B of the Res tatement (Second) of Torts (1977), adopted by the-7-

Supreme Court of this State in Press, Inc. v. Ve rra n , 5 69 S.W.2d 435 (Tenn.1978) at page 442 as follows: One who publishes a false and defamatory communication concerning a private person, or concerning a public official or pub lic figu re in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts neglige

ntly in failing to asc

ertain them.
Mr. Livingston provides no evidence that either Sheriff Long or the Media Defendants knew these statements to be false, acted in reckless disregard of the truth or falsity of t he statements or acted negligently in fail

ing to ascertain th

eir truth or falsity. Even if Mr. Livingston's contention that the statements are false is correct, it is our determination that none of the above criteria ca n b e reasonably

inferred solely on that basis. The aforementioned affidavit filed in support of the search warrant attests that a rel

iable confidenti

al source had re

ported that Mr. Li vingston had described certain items of property located on the premises as having been stolen. The affidavit further attests that narcotics officers had purchased na rcoticdrugs on the premises and that narcotics officer Dan Cox of the Morristown Police Department had received a written statement that stolen property was being traded for drugs on the premis es. It is our concl usion that the infor

mation set forth in t

his affidavit provided a reliable foundation for the statements attributed to Sheriff Long and we find no evidence in the record before us showing that he failed to exercise reasonable care in making these statements or that

the Media Defen

dants were negli

gent in publishing the

m. The final two state

ments to which Mr. L

ivingston objects sta

te:
"Before William Penn Livingston was arrested Tuesday for a parole violation , he headed a diversifiedcriminal organiz ation that i

nc luded drug traff

icking, auto theft

, home burglaries , shoplifting and insurance, food stamp and drug fraud, according to police and sheriff's department authorities."
"In a press release Wednesday afternoon, authorities says (sic) Livingston has taken 'exteme measures' to hide

his assets"
Neither of these statements is actionable as to Detective Hayes, Chief Seal or Sheriff Long individually

because no proof has been submitted that any of these three

Defendants were the source of these statements. As to the Media Defendan ts, Mr. Livingston ag

ain offers no probative evidence which would

create an issue of liability under the Restatement criteria, supra, and, again, the f alsity of the statements does not, of itself, warrant a reasonable inference with respect to those criter ia.-8-

For the for egoing reas ons the judgment of t he Trial Court is af

firmed and the ca

se is remanded for collection of costs below. Costs of appeal are adjudged against Mr. Livingston and his surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE