Session July 18, 2019
from the Tennessee Claims Commission No. T20180132 William A.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Claims
Commission Affirmed; Case Remanded
F. Knight, III, Knoxville, Tennessee, for the appellant,
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.
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.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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"). 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
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
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
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.
minutes, Ms. Lyford sent an email to Claimant's counsel,
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.
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."
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.
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.") 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.
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.
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.
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 ...