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Elsten v. Coker

Court of Appeals of Tennessee, Nashville

October 4, 2019

THOMAS J. ELSTEN, JR.
v.
JEFFREY COKER ET AL.

          Session August 6, 2019

          Appeal from the Circuit Court for Sumner County No. 2017-CV-446 Joe H. Thompson, Judge.

         This appeal arises from a defamation action filed by one mayoral candidate against another for statements made during the City of Hendersonville, Tennessee mayoral race. Accordingly, the issues are to be judged based on the more stringent standards that apply in a defamation action brought by a public figure. After engaging in discovery, the defendant filed a motion for summary judgment, contending the plaintiff lacked evidence showing the defendant published the statements with actual malice. To withstand the motion for summary judgment, the plaintiff had the burden to demonstrate he would be able to prove clearly and convincingly that the defendant acted with actual malice, which required proof the defendant had knowledge that the facts he published about the plaintiff were false or that he acted with reckless disregard as to their truth or falsity. The trial court found that the plaintiff "did not produce clear and convincing evidence of actual malice at the summary judgment stage" and summarily dismissed the action. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Kirk L. Clements, Nashville, Tennessee, for the appellant, Thomas J. Elsten, Jr.

          John J. Griffin, Jr. and Michael A. Johnson, Nashville, Tennessee, for the appellee, Jeffrey Coker and Jeff Coker for Mayor.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and John W. McClarty, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Thomas J. Elsten, Jr. ("Elsten") and Jeffrey Coker ("Coker") ran for mayor of Hendersonville in 2016. Just prior to the November election, Coker and the Jeff Coker for Mayor campaign organization published and disseminated a pamphlet to Hendersonville residents titled: "Are You Tired of the 'Revolving Door' of Career Politicians and Special Interests?" Next to Elsten's picture and name, the pamphlet stated, inter alia, "An [sic] an alderman, he was caught in an insider deal to sell stolen property to the Hendersonville Parks Department and is currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner."[1] (Hereinafter, these two statements are referred to as the "insider deal" and the "ethics investigation," respectively.)

         In May 2017, Elsten filed a complaint against Coker and his campaign organization[2] for defamation, defamation per se, and defamation by implication/false light[3], alleging they published false, defamatory statements about Elsten and either knew the statements were false or made a conscious decision not to investigate their truth. Coker and his campaign organization answered the complaint, denying the allegations.

         After the parties engaged in discovery, Coker and his campaign organization filed a joint motion for summary judgment primarily contending that Elsten's defamation claim failed as a matter of law because Elsten admitted the truth of both statements. As for the insider deal, Elsten conceded that in July 2009, when he was an alderman for the City of Hendersonville, he purchased an all-terrain vehicle known as a "Gator" from a friend for $1, 650. He then sold the Gator to the Hendersonville High School Soccer Booster Club for $2, 500. But he returned the money when the Metropolitan Police Department informed him the Gator was stolen property and had been seized. The Hendersonville Police Department created a police report and obtained a signed statement from Elsten, explaining he did not know the Gator was stolen. Elsten was never arrested or charged in the case.

         Coker argued that while the insider deal statement was inaccurate in that Elsten had not sold the Gator to the Hendersonville Parks Department, the statement was substantially true due to the close connection between the Hendersonville High School Soccer Booster Club and the Hendersonville Parks Department. This was because, Coker contended, the Booster Club held its soccer events at Drake's Creek Park, which was operated by the Hendersonville Parks Department. Nevertheless, Coker argued that even if the insider deal statement was materially false, Elsten presented no evidence to show that Coker knew the statement was false or had "a high degree of awareness" the statement was false, which was required to prove actual malice.

         As for the ethics investigation, Coker contended the statement was based on the undisputed fact that the Tennessee Ethics Commission received a complaint against Elsten for campaign finance violations that pertained to alleged illegal campaign contributions from a construction company owner.

         In his response to the motion for summary judgment, Elsten acknowledged that as alderman of the City of Hendersonville, he had authority over the Hendersonville Parks Department; however, he argued the insider deal statement was materially false because he had no authority over the Hendersonville High School Soccer Booster Club. Consequently, there was no "insider deal" because his position as alderman was irrelevant to the sale. Moreover, Elsten contended the implication he intentionally or knowingly sold stolen property was false.

         Elsten also asserted that Coker had a high degree of awareness the insider deal statement was false. To support this assertion, Elsten cited facts in the record showing (1) Coker relied solely on rumors; (2) Coker consistently spoke favorably of Elsten in emails, and stated he had no reason to believe Elsten would be involved any anything "untoward;" (3) Coker's policy was to provide a source for the statements in the subject pamphlet but, unlike other statements, Coker did not provide a source for the insider deal statement; and (4) Coker failed to consult with anyone who had direct knowledge of the incident. Therefore, Elsten argued Coker published the statement with reckless disregard to its truth.

         As for the ethics investigation, Elsten conceded someone filed a complaint against him with the Tennessee Ethics Commission for an alleged campaign finance violation. However, the alleged violation was not related to "illegal contributions" because no authoritative body declared he acted illegally. Therefore, the statement was false as a matter of law.

         Following a hearing, the trial court granted Coker's motion for summary judgment ruling that Elsten "did not produce clear and convincing evidence of actual malice at the summary judgment stage." The court found Elsten lacked proof that "the source of [Coker's] knowledge was of doubtful veracity," and that "any fact known to [Coker] . . . would cause him to be highly aware of the probable falsity of his statement." This appeal followed.

         Issue

         Although the parties raised several issues, because it is undisputed that Elsten is a public figure, the dispositive issue is whether Elsten came forward with clear and convincing proof that Coker acted with actual malice when he published the statements at issue. See Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 283 (Tenn. Ct. App. 2007); see also Tomlinson v. Kelley, 969 S.W.2d 402, 405 (Tenn. Ct. App. 1997).

         Standard of Review

         "Summary judgments are proper in virtually any civil case that can be resolved on legal issues alone." Tomlinson, 969 S.W.2d at 405 (citing Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993)). "They are particularly well-suited for defamation cases because the determination concerning whether the plaintiff is a public figure is a question of law[.]" Id. (citing McDowell v. Moore, 863 S.W.2d 418, 420 (Tenn. Ct. App. 1992)). They are also well-suited for defamation cases because "the determination concerning whether a public figure has come forward with clear and convincing evidence that the defendant was acting with actual malice" is a question of law. Id. (citing Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69, 74 (Tenn. Ct. App. 1986)).

         This court reviews a trial court's decision on a motion for summary judgment de novo without a presumption of correctness. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). In so doing, we consider the evidence in the light most favorable to the ...


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