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Harmer v. Colom

United States District Court, M.D. Tennessee, Nashville Division

December 24, 2014

PETER S. HARMER, et ux, CHRISTINE C. HARMER, Plaintiffs,
v.
WILBUR O. COLOM and THE COLOM LAW FIRM, LLC, Defendants.

MEMORANDUM

KEVIN H. SHARP, District Judge.

Defendants Wilbur O. Colom ("Colom") and The Colom Law Firm, LLC ("Defendants") filed a Motion to Dismiss Plaintiffs' Amended Complaint (Docket Entry No. 63), to which Plaintiffs Peter S. Harmer and wife, Christine C. Harmer ("Plaintiffs") filed a response (Docket Entry No. 69).[1] For the reasons discussed herein, the Court will grant Defendants' motion.

RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Plaintiffs Peter ("Harmer") and Christine Harmer ("C. Harmer") are resident citizens of Franklin, Tennessee. Wilbur Colom ("Colom") is a Mississippi attorney and the Colom Law Firm is a small firm of three attorneys located in Columbus, Mississippi ("Defendants"). The instant lawsuit and Plaintiffs' allegations arise from Defendants' representation of an individual, Donald DePriest ("DePriest"), in a lawsuit he brought against Harmer.

On December 21, 2005, DePriest was publicly nominated, by the President of the United States, to serve as a member on the Board of the Tennessee Valley Authority ("TVA").[2] While on the TVA Board, from March 3, 2006 through April 10, 2009, DePriest served on the TVA Board Audit & Ethics Committee. Over the next few years, numerous lawsuits were filed against DePriest along with publically filed liens by the Internal Revenue Service for non-payment of withholding taxes. On April 10, 2009, DePriest resigned, mid-term, from the TVA Board.

On May 12, 2010, Harmer furnished to Jimmy Stobaugh ("Stobaugh"), at Telesaurus Holdings, a competitor of Maritime Communications/Land Mobile, LLC ("Maritime") (a DePriest related company), [3] a number of publicly accessible records from the Federal Communications Commission ("FCC")'s investigation of Maritime's participation in August 2005 FCC License's Auction. The documents provided by Harmer to Stobaugh evidenced efforts by DePriest in September 2007 to redeem a counterfeit bearer bond in the amount of $25, 000, 000 purportedly issued by Banco Central de Venezuela. The documents indicated the attempt to redeem the counterfeit bearer bond less than two years after DePriest was sworn in as a TVA Board member and was serving on the TVA Board Audit and Ethics Committee.

FCC initiated a public investigation, by formal proceedings, against Maritime relating to false statements to the United States Government in Maritime's acquisition of license at a 2005 auction by which the FCC granted certain licenses. As part of the public record created by the FCC Maritime Investigation, DePriest was revealed to have personally guaranteed a loan, in the amount of $200, 000, at a 25% annum interest rate, due and payable September 26, 2009 to Sextons, Inc. On November 14, 2011, Sextons, Inc. publicly filed suit against DePriest in the United States District Court for the Northern District of Mississippi (Docket No. 1:11-CV-238-AS) claiming breach of contract ("Sextons Lawsuit"). The Sextons Lawsuit resulted in a publicly-entered judgment against DePriest in the amount of $445, 771.21, on August 27, 2012.

On July 16, 2010, DePriest, by and through his counsel, Defendants, initiated litigation against Harmer for defamation, tortious interference with business relationships, and intentional infliction of emotional distress in the United States District Court for the Northern District of Mississippi ("Mississippi Litigation").[4] Before preparing and filing the suit, in July 2010, Defendants wrote a letter, sent by email and by Federal Express, received by Harmer in Franklin, Tennessee, making unsubstantiated accusations against Harmer for making false statements about DePriest. The June 16, 2010 letter included the following concluding paragraph:

Mr.... DePriest demands that you retract the statements you made to Scott Baker, the Knoxville News Sentinel, the Nashville Tennessean, any courts of law, and all other organizations and individuals, and have copies of these retractions delivered to... DePriest. Mr.... DePriest also demands that you cease and desist from any further attempts to injure or interfere with his business or personal reputation. This is your opportunity to resolve the matter without legal expense and exposure to liability and damages. If you fail to respond to this demand, Mr.... DePriest will commence legal proceedings against you.

Harmer did not respond to the letter. The lawsuit was filed ten days later on July 16, 2010. Harmer had no money to retain counsel to represent him. Believing that he had no money to retain counsel to defend the claims stated in the lawsuit, Defendants maliciously drafted and filed the Complaint with the intent of forcing Harmer to "capitulate to the demand of [DePriest] to cease and desist speaking the truth about [him]." (Amed. Compl. at ¶ 140). Furthermore, because Harmer had no money with which to retain counsel, his options were to proceed with a pro se defense or "to capitulate to Mr. Colom's use of the perversely served MS District Court order (summons) as a Damocles sword." ( Id . at ¶ 141). Harmer filed motions to dismiss the lawsuit, responded to interrogatories, served interrogatories and other pretrial discovery and, otherwise, attempted to defend the claims.

On June 1, 2011, Colom placed a telephone call to Harmer, which was received in Franklin, Tennessee and was recorded. During the recorded conversation, Colom stated to Harmer that DePriest only desires for Harmer to leave him alone and that DePriest knows that Harmer "can't unring any bell that's rung" but DePriest "doesn't want any more bells rung." (Amed. Compl. at ¶ 144). During the same conversation, Colom advised Harmer that DePriest did not want him saying anything else to anybody that would hurt DePriest's business. Colom further stated that he was going to call DePriest and advise him that he needed to get another lawyer to keep pressing the claims against Harmer because DePriest was "not ever gonna collect any money from you [Mr. Harmer]" and "you're [Mr. Harmer] not ever gonna collect any money from him unless something fortunate happens." ( Id . at ¶ 146).

On June 15, 2011, the Mississippi District Court, in DePriest's lawsuit, sua sponte, entered what was entitled "Order Staying Case Until The Conclusion Of The Investigation By The Federal Communications Commission Of Maritime Communications/Land Mobile LLC, EB Docket NO. 11-71:FCC 11-64" ("Stay Order"). On June 15, 2011, DePriest left a voicemail message recorded as follows:

Hey Peter [Harmer], its Don [DePriest]. XXX-XXX-XXXX. I'm out of the country where you've probably been any number of times, including prep school. So just called, Will [Colom] had suggested that we have a chat and see if we could get together. Thanks.

On August 21, 2012, Harmer, pro se, filed a motion to lift the Stay Order. On August 30, 2012, Colom telephoned Harmer offering to dismiss DePriest's lawsuit, without prejudice. In response to the offer to dismiss, Harmer informed Colom that he had to think about that offer.[5] On August 31, 2012, at 3:57 p.m., CDT, Colom emailed Harmer in Williamson County, Tennessee, reading as follows:

I just had a discussion with Don [DePriest]. He will agree to dismissal with prejudice with the understand (sic) that neither you nor him (sic) will make any public statement about the dismissal and you will not disclose the dismissal to any third party who will then make a public statement. Of course, we can't prevent people from looking at public files but you will not call it to anyone's attention.

On September 5, 2012, at 11:21 a.m., CDT, Harmer emailed Colom stating as follows:

Thank you for your telephone call last Thursday evening and subsequent email on Friday concerning the below attached.
It is with respect that I reject the dismissal ...

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