### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE June 26, 2001 Session

ANTHONY MURRAY v. DEWEY L. LINEBERRY
Appeal from the Circuit Court for Wilson County No. 10686 Julian P. Guinn, Judge

No. M2001-00097-COA-R3-CV - Filed September 27, 2001

This appeal arises from a defamation action. The appellant sued the appellee for slander after the appellee aired a series of

political adverti

sements including

statements about th

e appellant,

a deputy sheriff. The Wilson County Circuit Court granted the appellee’s motion for summary judg

ment. We affirm the trial court’s decision.

Tenn. R. App. P. Rule 3; Judgment of the Circuit Court

Affirmed and Remanded

B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM B. C AIN , and P ATRICIA J. C OTTRELL , JJ., joined.

Neal Agee , Jr ., Le ban on, Ten nes see, for the app ell ant , An tho ny Mu rray.
Parks T. C has tai n an d El lio tt O zme nt, Nas hvi lle , Te nne sse e, fo r th e app ell ee, D ewey L . Lin eber ry.
OPINION I.

This is an appeal from the trial court’s order granting the appellee’s moti on for summary judgment in a defamationaction. The appellee ran for the office of Sheriff of Wilson County for the August 6, 1998 elect ion. As part of his c ampaign, begi

nning on July 1 3, 1998, he aired s ix videotapedpolitical adverti sements on cable t

elevision. The ad

vertis ement s contained numerous references to practices in the sheriff’s depa

rtment and commen

ts about the behav

ior of deputies, sometimes by n

ame. The plaintif

f/appellant in this

case is one of thos

e deputies.

At some point before airing the adve rtisements, appe

llee heard some

Nashville Metropolitan police officers discus sing a deputy sheriff in Wilson County who had been involved in a

domestic dispute. Later, a young woman appr oached the appellee and told him she had been invo lved in a domestic dispute

with the appellant. Appellee also started receiving anonymous letters from “one1 We reprint the relevant portions of the advertisements in full as an appendix to thi s opinion.
-2- of the sheriffs [sic] many snitches” regarding practices in

the sheriff’s department. Appellee decided to use the information he had discovered in several a dvertisem ents durin g his campai gn for sheriff.

The relevant portion

s of the political a

dvertisements

identify the appellant as

a deputy sheriff whose father is a county commissioner. 1 The first advertisement includes a veiled comment about
a deputy bein

g involved in a vio

lent dome stic dispute an d how, when the appellee is elected, that kind of behavior will be rewarded with dismissal not promotion. Later advertisements included a lengthy reading from

a complaint filed in federal court by a female plaintiff against the appellant and the sheriff alleging that the appellant had severely battered the plaintiff while t hey were living together and that he and the

sheriff conspir

ed to cover it up. T

he complaint a

lso alleged that the sh eriff had coerced the

appellant into initi

ating a crimina

l complaint agai

nst the plaintiff in

th e federallawsuit, resulting in her arrest and rough treatment in state court. In another advertisement the appellee asserted that the appellant had been involved in other

bad acts but that his file had been cleaned out because the sheriff needed the appellant’s father’s vote on the county commission. The trial judge granted the appellee’s motion for summary judgment.

II. Upon review of a grant of summary judgment, this cour t must determine whether the requirements

of Tenn. R. Civ. P. 56 have beensatisfied. See Hunter v. Bro wn , 955 S.W.2d 49, 50-51 (Tenn. 1997). As this inquiry involves purely a question of law, our revie w is de nov o without a presumption of correctness. Robinson v. Omer , 952 S.W.2d 423, 426 ( Tenn. 1997); McClung v. Delta Square Ltd. Partnership , 937 S.W.2d 891, 894 (Tenn. 1996). Summary judgments are appropriat e only where there is no ge nuine issue of mate

rial fact relev

ant to the claim or d

efense containedin the mot ion and the moving party is entitled to a judgment as a matter of law on the undispute d facts. S ee Tenn. R. Civ. P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn . 1997) ; Carvell v. Bottoms , 900 S.W.2d 23, 26 (Te nn. 1995). Courts re

viewing summary

judgments must view the evidence in the light most favorable to the nonmoving party and draw a ll reasonab l e inferences in the nonmoving party’s favor. Omer , 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

The trial court’ s order reads as follows:

Firs tly, assuming, in

arguendo, that

the plaintiff is a private person rather than
a public official, the Court

finds as follows: As

to what has been termed segments 1, 2, 3, 4, and 5 they are substantially true. As to segments 4 and 6, the Court finds that they are not defam atory. As to al l segm ents, the Court finds that the re is just absolutely,

completely

no proof of damag

es.-3- Sec ond ly, the precedi ng findings were made based upon the assumption that he was a private person. This Court finds that the plaintiff is,

in fact, a public official andthe grounds for findingthat is that the acts that have been alleged and to which he has admitted do, indee d, reflect on his c onduct fitness or h

is role in his public capacity as a police officer. Having made that finding, this Court

finds that there is no proof of malice to be found anywhere in this record.

III. I S THE APP

ELLANT A PUBL

IC OFFICIAL /

FIGURE ?

In a case of libe l or slander, the court must firs t decide whether

the individual alle

gedly defamed is a private person or public official/figure. If a n individual is not a public figure, he has
a lower thres hold to mee t in makin g a defamation case. See New York Times, Co. v. Sullivan , 376 U.S. 254 (1964). I

f he is a public fig

ure, he must prove

actual malice on

the part of the de

fendant. Id. This court has stated:

The existence of actual malice is a proper question to be decided by a court in a motion for summary judgment. Trigg v. Lakeway Publishers, Inc. , 720 S.W.2d 69, 74 (Tenn. [sic] App. 1986). To defeat the motion for summary judg

ment, a public official plain tiff must demonstrate evidence of actual malice with “convincing clarity.” Id. (citing New York Times , 376 U.S. at 285-86, 84 S.Ct. at 729, 11 L.Ed. 2d at 710). Actual ma

lice existswhen a statement is made with knowledge that the statement is false, or with reckless disregard of whether it is false. Ni ch ols , 569 S.W.2d at 415 (quoti ng New York Times , 376 U.S. at 279, 84 S.Ct. at 726). Selby v. Ilabaca , No. 02A01-9503-CV-00058, 1996 WL 219620 at * 4 (Tenn. Ct. App. 1996).

In Selby, we held that a police officer was a public official. We stated that a police officer’s “duties affe ct the lives, liberty and property of citizens . . . .” Selby , 1996 WL 219620, * 4. W e believe that the same is true of any law enforcement officer. Therefore, appellant is a public figure.

The New York Times rule, however, raises the standard for recovery only when the alleged defamatory

statements

relate to the public offic

ial’s official conduct

. Press, Inc. v. Verran , 569 S.W.2d 435, 441 (Tenn. 1978). With respect to whe ther a plaintiff’ s conduct is privat e rather than connected with his official duties, our Supreme Court has stated:

The occupant of any

position in any

branch of gove

rnment who exercis

es any public function is subject to the Ne w York Time s ru le as to all conduct in his official capacity or as to any conduct that might adversely affect his fitness for public office, if he has or “appear(s)

to the public to

have, substantial responsibilities for or control over the conduct of governmental affairs.”-4-

Id. at 441 . We believe that appellant’s conduct amounting to domestic violence constitutes “conduct that might adversely affect his fitness for public office.” A llegations of covering up official mis con duc t wo uld cert ain ly fa ll i nto tha t ca tego ry.
IV. A . M ALICE
On the question of malice, we first note that the appellant was not the object of the political advertisements.

The appellee’s

target was the

sherif f , and the story told was mostly about the sheriff’s conduct in office. In addition, the appellee presented evidence t h at he believed the information to be true. In his affidavit, appellee stated that he spok

e with the third party, she showed him her medical rec

ords, she showed him pictures of her injuries, she showed him a bloody towel that was from the injury, and she showed him the Internal Investigation Statement from the Wilson County Sheriff’ s Department. The appellant himself admitted he hit the third party over the head witha telephone. Based on his inve stigati on and the corroboration the appellee found, and based
on the lack of evide

nce tothe contrary, we find that there is nothing in the record from which a n inference cou

ld be drawn that th

e appellee acte

d maliciously

toward the appel

lant.

B . D AMAGES
In addition, we find th

at the appellant h

as failed to show th

at he was damag

ed by th e publication of the advertise ments. In a de

famation case, a

plainti f f must prove actual damages resulting from actual injury. Gertz v. Robert Wel ch, Inc. , 418 U.S. 323, 349-50 (1974); Memphis Publishing Co v. Nichols , 569 S.W.2d 412, 421 (Tenn. 1978). The United States Supreme Court addressed the issue of actual damages in Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974). The Court stated:

We need not define “actual injury,” as trial courts have wide experience in framing appropriate

jury instruc

tions in tort actions . Suffice it to say that actual injury

is not limited to out-of-pocket loss. Indeed, t he more customary types of ac tual harm inflictedby defamatory falsehood inc lude impairment of

reputation and sta

nding in the commun ity, personal humiliat ion, and me ntal anguis h and suffer ing.
Gertz , 418 U.S. at 349-50. When looking at damages for a defamation suit t

his court has state

d that, “[t]he issue is whether the record contains any material evidence of impair ment of reputation and standin g in the community, personal humiliation, or mental anguish and suffering.” Myer s v
. Pickering Firm, Inc. , 959 S.W. 2d 152, 164 (Tenn. Ct. App. 1997) (citing Handley v. May , 5 88 S.W.2d 772, 776 (Tenn. Ct. App. 1979)). When discussing a plaintiff’s reaction as anger rather than anguish, this court has also stated that “mere annoyance or loss of pea ce of mind,” are

notenough to qualify for actual damages. Handley , 588 S.W.2d at 777.

In Moore v. Bailey , 628 S.W.2d 431 (Tenn. Ct. App. 1981), we affirmed a jury award in a defamationcase. Where the plaintiff presented evidence of

the effects of th

e defamatory

statements,-5-

which had been

on-going for

ten (10) ye

ars. The plaintif

f in that case stat

ed that he was una

ble to get away from the statements made by the defendant. The plaintiff was even appr oached by one of th e defendant’s employees at Army Guard camp, which caused him to quit the Army Guard. He statedthat it was in his mind and disturbed his mind as well as his family. The plaintiff also testified that the statements affected the performance of his duties because it was alway s on his mind.

In his deposition, the appel lant stated that various individual s had approached him concerning the commercials. He stated that this attention embarrassed him. He also stated that individuals from churchtold the parents of his fiancee at the time that they should keep appellant away from her. He mentioned that he was embarrassed for his parents, his wife, and his in-laws. However, the damages complainedof by the appellant never rose above embarrassment stem ming from individual encounters. He also stated that he believed he had not been invite

d to a few private

parties due to the advertisements. However, he did not present proof that the advertisements were the reason he
was notinvited. Appellant did mention that detectives at the Sheriff’s office would not work with him and that his own par

tner had left the

department due in

part to the allegations on the advertisements. However, appellant’s position as a deputy had not been aff ected.

This situation is not the sa me as in Moore. In Moore , the plaintiff tes tified th at th e defamatory

statements were

constantly w

ith him in his day-to-day life. Here the a ppellant stated that various people asked him about the allegations, but he did not state that the questions were a constant presencein his life. Also, there was no evidence that the embar rassment ham pered his ability to perform his job. This evid

ence does not rise above “anger, mere annoy ance or loss of peace of mind.” Therefor

e, we find no proo

f of actual dama

ges.
We h ave reviewed the record in this case and find no basis to overturn the tri al court’ s decision to grant themotion for summary judgment. For this reason,we affirm the decision of the trial court and re mand the cau se to the Ci rcuit Cour t of Wilso n County for an y further procee dings tha t ma y beco me n eces sar y. Ta x th e cos ts o n ap peal to t he ap pel lan t, A nth ony M urr ay.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.-6- APPENDIX Segment 1

I’d like to also add that any deputy, while I’m sheriff, any deputy g uilty of domestic violence, your gonna be dismissed. You’re not goingto be promoted. By that I’m not going to na me any names right now, but go ask the sheriff, any of y ou that know him what’s he do to p eople guilty

of domestic violence. Ask him has he promoted any when they should’ve be en dismissed. You know if you’re guilty of domestic violence you can’t carry a handgun, you

can’t be an officer, your

[sic] through. They need to think about that before they , before they commit the acts. Anywa y, you can’t, that’s notright. I’m not up here trying to pre judge people, but I’m sure not going to try and fix it and cover it up. When I’m sheriff, if you guilty of that, pack your stuff, clean y our locker out, your done. Segment 2

You know Mr. Sheriff, I said if you catch me in a re staurant drinking a beer, it’ll be a beer it won’t be a Coors Lite in an

apple juice glass. I don’t deceive or cover up anything. If I ’m drinking tea, you
can bet it’s tea, it’s that simple. I don’t put one thing in and try to make the people think something else. Well, that infuriate d the sheriff, so,

that h e goes to

this restaurant. I’m not calling the restaurant’s name or

the person’s name that said it. He goes over there and he jumps on that person. That person called me

back and said

hey. That person was scared. That person said help me

, help
me I need a law

yer and, y ou know, nobody

would help her. So

I turned back around, and I really was having trouble getting

somebody to h

elp her too. So I

put another ad in the paper, and it said several things about how does one man keep so many good men scared out of the sherif f’s race. There

are deputies serving under the sheriff now that do the job better.

Under Lawdog, hard work will be rewarded not discourag ed. I want you to better [y]ourself. Wife beating will no longer be a qualification for your promotion. Well, guess what folks, I putthat ad in the Democrat onTuesday. It hadn’t run til Friday . Maybe the Sheriff was psyc hic I don’t know. Wednesday

he goes back to t

his person said, I

told you to st

op talki ng to Lineberry. Scared tha t person. They call me hysterical, sca red to death, didn’t know what was going to happen. I took that person and got’em

a lawyer. That’s my ha

nd init. That’s all I’ve done. Now it’s come out and any of you that wants a copy

of it can get it,

you see, how

they took this

person that was g

etting beat, this littlegirl that di dn’t weigh 95 pounds soaking wet, she was getting beat, they put ankle chains on her , took her in front of

a judge and had her say that she had been whipping

the deputy.

And then I dig into it even further a

nd this deputy

has got a father that’s a commissioner. That’s what I’m talking about. That’s the stuff that’s going on. It’s filed now, it’s public. That was my h and in it. That’s it. Segment 3

Mr. Sheriff, you say y

ou’re a good manage

r. I’m going

to challenge y

ou to prove that you’re not the most expensive sheriff

that’s ever bee

n in the sta

te of Tenne ssee. I got a

lawsuit right her

e in my-7-

hand filed in Fed

eral Court. I ’m not going to c all the young

lady’s name

that filedit, but it’s filed against yo

u and it was filed la

st week. It’s

for a couple

million dollars. I don’t know much about all of this except,

I wasn’t there, but I’ve read this lawsuit and any of you wants a cop y of it can go down to federal court or you can call down there and g et you a copy of

it. That’s what I did, and you know, I will read y

ou a few things a

bout it. It was a

bout you cove

ring up a crime.

It came to do w

ith you deciding one night that that you woul d just cover it up. Now there ain’t no telling how many times you’ve done it, y ou know. There’s no telling how many times you’ ve actually covered something up. You know, because it’s come pretty ea sy to you, you know. Man calls you in the middle of the night, and just like that, you covered it up. Here we go. On or about June 30, 1997, Defendant

Anthony Murr

ay, was r esiding with

Plaintiff in Wilson County. On or about that day Defendant

Murray severely be

at the Plaintiff caus ing her severe head injuries as to acquire [sic] hospitalization. That was out of Paragraph 6. Paragraph 7. On or about May 3, 1998, Defendant Murray again severely beat the plaintiff. When she returned to the dwelling, they co-habitated. I ’m going to leave out Paragraph 8. It’s not much to it. Number 9. Defendant Ashe in his capacity

to sheriff of Wilson County was aware of the abusive, violent behavior exhibited by Defendant Murray towardplaintiff. Defendant Ashe under color of s tate law. In case any of you out there don ’t realize what color of law is, there’s only 10 lawyers in Nashville, Tenne ssee, that understand thecolor of law. The color of law is 2800 pages long. There’s may be 2 or 3 i n Lebanon that understand it. I could call their names but they don’t want to be named it doesn’t matter.

Anyway it’s a big deal, it doesn’t, they’re not

talking about the color

of your skin, it is your civil rights the law can’t see any coloris wh at they’re trying to sa y but it takes them 2800 pages. It’s a big de al. Defen dant Ash e under the color of law and pursuant to his duties as the duly ele cted Sheriff to Wils

on County

failed to take any action to protect plaintiff or take any legal action to punish Defendant Murray or prevent future incidents of violence. Paragraph 10. Defendant Ashe in his capacity [as] Sheriff of Wilson County andunder the color of state law engaged in a conspiracy with Defendant Murray

and other members of the W ilson County Sheriff’s Department to cover up and keep secret incidents of violence against plaintif

f by defen

dant Murray . Paragraph 11 . Defendant Ashe in his capacity

a s the Sheriff

of Wilson County, Tennessee and under the color of State Law insisted on prosecuting Plaintiff for criminal trespass when he was fully aware no such offense had occurred and in that fact at the time of the May 3, 1998 assault plaintiff co-habitated with defendant Murray at the site of the assault. Defendant Ashe threa tened on multiple occasions to terminate defendant Murray’s employment

with Wilson County’s Sheriff Department if he failed to go forwar d swearing o ut a warrant and prosecuting plaintiff. Number 12. In an attempt to silence the plaintiff and prevent her from taking legal a

ction to readdre

ss the violation of h

er civil rights,

Defendant Asheand Murray andother members of

the Wilson County Sheriff’s Department, reckon who they a re, have engaged in a course of conduct aimed at intimidating the plaintiff. This course of conduct includes conducting surveillance operations on the plaintiff when no probable cause exists to suspect that she
was involved in criminal activities. Threatening the plaintiff and disseminating false and malicious information about

the plaintiff. Some or all of these activities have been conducted under the color of State Law. Number 13. As direct and pro ximate result

of the beatings doled out to the defendant by plaintiff Murray, [sic] suffered medical expenses and injur ie s possible permane

nt impairment, pain, su ffering, loss of wages, possible loss of earning capacity . Number 15. I skipp ed 14

. Plaintiff’s rights as codified under the 1 st , 4 th , 5 th , 6 th , 8 th , 9 th
, & 14 th Amendments to the Constitution-8-

of th e United States ha

ve been and conti

nue to be abroga

ted by the co

urse of conduct in whic h Defendants

Ashe and Murray are engag ed. Number 16. Th e acts of Defendant Murray are repeatedly

and violently striking, beating, kicking, and otherwise engaging

in abusive and offensive contact constitut es the intentional t ort of battery

. The acts of Def

endant Murray

in repeatedly causing the fear imminent and serious bodily

harm, Defendan

t Murray an

d subjects Plaintiff came [sic] constitutes the intentional tort of assault. It’s time we had a sheriff that

took up for someone it don’t matter who your daddy was or who anybody is related to that will defend y ou no matter who you are, no matter

what you are or what you done , we’ll do it right you don’t have to sit around and make up a bunch of

other, “What happened” . . . . . . . .We need a sheriff that will help you, instead of help you cover it. You’re not helping nobody when you cover up a crime. Your [sic] making it, the law, yo u’re t ying th e laws hands , it’s not ri ght. N ow bac k to t he scr ipt. It ’s not a script it’s a lawsuit you can pic

k it up at the Fede

ral Co urt H ouse. Mr. Sheriff this is filed in Federal Court everybody

knows it’s filed in F

ederal Court.It’s not in

Lebanon, a little different you broke a f ederal law. The failure of defendant Ashe who knew and condoned the phy sical, emotional abuse suffered by plaintiff at the hands of

defe nda nt M urr ay, to punish in any way intervene Plaintiff’s rig hts as he has taken oath to do by

law constitutes a

tort of outrageous conduct and/or intentional infliction of emotional distress. Defendant Ashe’s course of conduct in forcing the prosecution of Plaintiff when he knew no crime had

transpired, and further actions in harassing and surveilling Plaintiff constitutes the tort of outrageous conduct. There’s a lot more here to read. I ’m not going to take your ti me with it. A lot of people don’t understand the difference in an intentional tort and . . . . .

You said you wanted if anything ha ppened to you on the radio station that you wantedofficers from your department to help you. Well the person tha t wrote this thinks may

be it was just to ge

t you so you’d cov er up any w ron g doi ng on your part you k now lik e yo u did for this Murray thing I read before but I ’ll tell you so

mething else and

I’m going t

o leave this boy ’s name out of it. Segment 4

That was another one where he covered up a crime, attempted to cover it up, and that’s the way this lawsuit reads. I’m not the judge and jury on that, but it was just wher e they, um . . a girl was being beat and they put

ankle chains on her and had her say that she had been beating th

e deputy an

d come to find out when I dug all into it, the deputy, the r eason they took this approach, the deputy ha d a father that’s a commissioner. Well that’s what I’ve been talking about the whole time. That whole thing’s tiedtogether in a

big ball of wax. You know, I started to just jerk the sheriff out and now, I’ve ended had

to get them all. Yo u see, but I’m only going to ge t the ones that are trying to be connected. Most of themcan be converted. You see, when I get t here and see wh

at I’m about th

ey’ll sta y wit h me . An d th ey’l l, t hey’l l at lea st r esp ect me e nou gh to do t hei r jo b an d ear n th eir pay. Segment 5

You couldn’t get your hand on that money . That’s the deal. Then you got deputy’s [sic] running the bond companies, good grief I don’t understand it and one more thing you asked me about the

lawsuit, the federal lawsuit on the 2.1 million dol lars. Th e federal lawsuit you asked me about that, y ou-9-

know people are missing the point on that, a little girl got beat up that’s bad, that’s terrible. That’s not the real point.

The man beat the g

irl up that’s a

postage stamp laying on a football field when it’s all over with that’ s all that is but the bi g crime the thing

they ran a b

ull elephant down M

ain Street and nobody saw it was that the Sheriff cover it up. If the Sheriff’s convicted of that he can’t be Sheriff no more. What are we up here talking

about that’s what I

’m trying to

tell you. That’s the blimp that went down

and nobody sa

w it or they do

n’t want to talk abo

ut it. Segment 6

Bubba Murray lawsuit- This

is t he s econ d la wsu it B ubb y, th is f ell a cal ls h im B ubb y, Bub by Mu rray, has gotten the county in to [sic] for the past couple of year s. The first lawsuit

was the Thaker su

it. The county insurance had to pay this. Bubba went around bragging that his file had been cleaned up. Well, all the pas t write ups by Lt. Fox, evidently L t. Fox had been writing him up and they pulled all that out of his file, you see, to keep the p

eople that sued from getting a hold of that file you
see because if they had of they coul d use it as evidence in cour t. If yo u wonder why

Bubby is so importantthat Ashe would ris k so much covering

up for him I g

uess it’s becaus e he’s the commissioner’s son and Ashe needs all the help he can get when he proposes another budget increase. Now I got tap ed meetings a lot

of tapes. But I

got one rig

ht here that’s a lot

more interesting than others . . . . . . .