THOMAS J. ELSTEN, JR.
JEFFREY COKER ET AL.
Session August 6, 2019
from the Circuit Court for Sumner County No. 2017-CV-446 Joe
H. Thompson, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
L. Clements, Nashville, Tennessee, for the appellant, Thomas
J. Elsten, Jr.
J. Griffin, Jr. and Michael A. Johnson, Nashville, Tennessee,
for the appellee, Jeffrey Coker and Jeff Coker for Mayor.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Andy D. Bennett and John W. McClarty, JJ.,
G. CLEMENT JR., P.J., M.S.
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." (Hereinafter, these two statements are
referred to as the "insider deal" and the
"ethics investigation," respectively.)
2017, Elsten filed a complaint against Coker and his campaign
organization for defamation, defamation per se, and
defamation by implication/false light, 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.
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
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.
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.
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.
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.
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.
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
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).
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)).
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 ...