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Kilgore v. State

Court of Appeals of Tennessee, Knoxville

November 13, 2019

RODNEY KILGORE
v.
STATE OF TENNESSEE

          Session July 18, 2019

          Appeal from the Tennessee Claims Commission No. T20180132 William A. Young, Commissioner

         This appeal arose from a claim filed with the Tennessee Claims Commission against the State of Tennessee ("the State"), seeking an award of damages for defamation allegedly committed by two attorneys employed by the State during the course of a separate federal litigation involving the claimant. The State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted, and the claimant filed, inter alia, a response objecting to the motion. Following a hearing, the Claims Commission dismissed the claim upon finding that the litigation privilege applied to protect the statements at issue and that the statements were not defamatory. The claimant has appealed. Having determined that the litigation privilege applies, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed; Case Remanded

          Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, Rodney Kilgore.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Amber L. Seymour, Assistant Attorney General, for the appellee, the State of Tennessee.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The claimant, Rodney Kilgore ("Claimant"), is the owner of Monteagle Wrecker Service. Claimant was a co-plaintiff in two federal actions ("the federal litigation") filed in the United States District Court for the Eastern District of Tennessee against officers of the Tennessee Highway Patrol ("THP").[1] The defendants in the federal litigation were represented by, as relevant here, two attorneys employed by the State of Tennessee: Deputy Attorney General Dawn Jordan and Assistant Attorney General Rebecca Lyford. During the discovery phase of the federal litigation, the defendants scheduled the deposition of Gregory Ruth, who had previously been employed by Claimant as a driver, for November 29, 2016. Mr. Ruth's two sons owned an interest in a business known as R&R Road Service. On November 23, 2016, the R&R Road Service building caught fire, causing significant damage.

         On the morning of November 28, 2016, Ms. Jordan sent an email to Claimant's counsel in the federal litigation, Arthur F. Knight, III, and Russell Leonard, which stated in its entirety:

Good morning, Art and Rusty.
In case you have not already heard, someone torched Greg Ruth's children's business, R&R Road Service Wednesday night. This came after one of Mr. Kilgore's emissaries told Mr. Ruth to "watch out" for what said [sic] in this case. The timing does not seem to be coincidental.
This is serious. I hope that your clients were not involved in this act. As you know, that would be federal witness intimidation, which is a crime even in a civil case. That said, we will be asking for a full investigation from the TBI and the U.S. Attorney's Office.
We have no intentions of stopping our discovery efforts in this matter. In fact, they will be stepped up. All future depositions, including the ones that WILL take place tomorrow, and will be held at a secure location with metal detectors and officers in attendance.
We look forward to the motion hearing this afternoon.
Dawn Jordan

         Within minutes, Ms. Lyford sent an email to Claimant's counsel, stating:

Gentlemen, Given what has happened, I am attempting to find a location with a metal detector for everyone who will show up at the depositions tomorrow. I am calling the Winchester Federal courthouse now.

         These two email messages constitute the communication at issue in this defamation action ("the Emails"). Also on the morning of November 28, 2016, Mr. Knight responded to Ms. Jordan by sending an email message, asking, "Are you accusing me of something?" Ms. Jordan replied: "No, sir. I just did not know if you were aware. We will be calling various agencies this afternoon."

         On November 29, 2016, the scheduled date of the deposition, Claimant, along with the other plaintiffs in the federal litigation, filed a motion requesting a protective order on all discovery of the "Mr. Kilgore" and any unnamed "emissaries" referenced in Ms. Jordan's November 28, 2016 email message. The plaintiffs attached to the motion the Emails. In the motion, Claimant's counsel noted that in the initial email message, Ms. Jordan did not specify the "Mr. Kilgore" to which she referred. The deposition proceeded as scheduled.[2]

         On July 27, 2017, Claimant filed a notice of claim with the Division of Claims Administration, alleging that he had been defamed by Ms. Jordan and Ms. Lyford through the statements made in the Emails. See Tenn. Code Ann. § 9-8-307(a)(1)(R) (Supp. 2019) (providing the Claims Commission with "exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of 'state employees'" with regard to "[c]laims for libel and/or slander where a state employee is determined to be acting within the scope of employment.")[3] In the initial claim, Claimant included as a co-claimant his father, William Kilgore, who was also a plaintiff in the federal litigation and owned a different wrecker service. Claimant then filed an amended claim on August 9, 2017, removing his father as a claimant and adding details concerning alleged publication of purportedly defamatory statements made by Ms. Jordan and Ms. Lyford.

         The Division of Claims Administration transferred the claim to the Claims Commission ("the Commission") on October 25, 2017. See Tenn. Code Ann. § 9-8-402(c) (Supp. 2019) ("If the division fails to honor or deny the claim within the ninety-day settlement period, the division shall automatically transfer the claim to the administrative clerk of the claims commission."). The Commission entered an order governing the proceedings on November 2, 2017.

         The State filed a motion to dismiss Claimant's defamation claim and a memorandum of law in support of the motion on November 30, 2017, asserting that the Emails were protected by the litigation privilege and that they were not defamatory. Claimant filed a response to the motion to dismiss on February 2, 2018, asserting that the litigation privilege did not apply in this case because the Emails were not sent in the course of a judicial proceeding and were unrelated to the subject matter of the federal litigation. His response to the motion to dismiss included a memorandum of facts and law with an attached appendix of exhibits, including, inter alia, a transcript from a preliminary hearing held in the Marion County General Sessions Court on February 22, 2017.

         In his amended notice of claim, Claimant averred that during this preliminary hearing, "a Phillip Hamilton testified that Ms. Lyford informed him that [Claimant] burned a building and threatened someone's life." The transcript supports this description of the pertinent testimony presented by Mr. Hamilton, who had previously been employed by Claimant. The transcript indicates that the preliminary hearing was conducted upon the State's allegation that Claimant had intimidated a witness, Mr. Hamilton, following a ...


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