Charles Farmer v. David Hersh

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 23, 2007 Session

CHARLES FARMER v. DAVID HERSH

An Appeal from the Circuit Court for Madison County

No. C-04-508 J. S. Daniel, Sr. Judge

No. W2006-01937-COA-R3-CV - Filed August 9, 2007

This is a defamation case. The defendant owned a minor league baseball team which played for the

City of Jackson, Tennessee. In 2002, the plaintiff, the mayor of Jackson, was negotiating with the

defendant team owners to purchase the baseball team on behalf of the city. Soon the plaintiff mayor

and the defendant owner became embroiled in a lawsuit related to the sale of the team. Two years

later, the plaintiff mayor filed the instant lawsuit, alleging that the defendant team owner had

defamed him by telling the media that the mayor was attempting to “steal” the team. After some

discovery, the defendant team owner filed a motion to dismiss for failure to state a claim. At the

hearing on the motion, the trial court noted that matters outside the complaint had been submitted

to the court, and it therefore treated the motion as one for summary judgment. The trial court granted

the motion, concluding that the statement allegedly made by the defendant team owner was not

defamatory, and that the plaintiff mayor had not presented sufficient proof of damages. The plaintiff

mayor now appeals. We affirm, concluding that the statement allegedly made is mere hyperbole and

not defamatory as a matter of law.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID

R. FARMER , J., joined.

Lewis L. Cobb, Jackson, Tennessee, for the appellant, Charles Farmer.

C. Barry Ward, Ashlee B. Ellis, and Randall J. Fishman, Memphis, Tennessee, for the appellee,

David Hersh.

OPINION

Plaintiff/Appellant Charles Farmer (“Farmer”) has served as the Mayor of Jackson,

Tennessee, at all times relevant to this dispute.1 Defendant/Appellee David Hersh is the President

and principal shareholder of Professional Sports and Entertainment Association of Tennessee, Inc.

This corporation is the general partner of Professional Sports and Entertainment Association of

Tennessee, L.P. (“PSET”). Between 1996 and 2002, PSET was the owner of the West Tennessee

Diamond Jaxx, a Class “AA” minor league baseball team (“the Team”) affiliated with the Southern

League of Professional Baseball Clubs, Inc. Both Hersh and Farmer played integral roles in

relocating the Team from Memphis to Jackson in 1996. Hersh and Farmer worked together closely

while Hersh and/or PSET operated the Team in Jackson until PSET sold the Team in 2002.

Apparently the contracts between the City of Jackson (“City”) and the Team’s owners

address the City’s option to purchase the Team from PSET under certain circumstances. In

connection with these agreements, in September 2002, the City and Farmer, in his official capacity

as Mayor, filed a lawsuit against Hersh and PSET in the Madison County Chancery Court, docket

number 60282 (“chancery court lawsuit”), alleging breach of contract and other theories of recovery

in connection with the ownership of the Team. Hersh and PSET filed counterclaims and third-party

complaints against the City. The substance of the chancery court lawsuit is not relevant to the issues

in this appeal. Suffice it to say, the proceedings in the chancery court lawsuit were highly

contentious.

On December 7, 2004, Farmer, acting pro se, filed this defamation lawsuit against Hersh.

The complaint alleged that Hersh falsely accused Farmer of trying to “steal” the Team from its

owners:

10. Within six (6) months of the filing of this Complaint, Hersh knowingly and

repeatedly made false representations about Farmer’s intentions with respect to the

Team. Specifically, Hersh represented to the media and others that Farmer attempted

to ‘steal’ the Team from Hersh and/or PSET, L.P.

Farmer’s complaint asserted that Hersh knew of the falsity of his statement or acted with reckless

disregard for its falsity, and that he made the statement with the intent to harm Farmer’s reputation.

Hersh answered, denying the allegations, and filed a counterclaim and third-party complaint against

Farmer, individually and in his official capacity as the mayor of Jackson. Farmer answered Hersh’s

counterclaim and third-party complaint, filed a motion to dismiss the third-party complaint, and filed

a motion to strike the counterclaim and third-party complaint.

1

Farmer is a licensed attorney, and he represented himself during most of the proceedings below. The record

indicates that Farmer retained counsel for certain matters, but eventually took over the case and represented himself

through the grant of Hersh’s motion to dismiss.

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Later, on May 2, 2005, Hersh filed a motion to dismiss for failure to state a claim upon which

relief could be granted, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure.

Among other things, Hersh argued that, even if he had made the statement as alleged in Farmer’s

complaint, the statement was not defamatory as a matter of law. After that, both parties engaged in

discovery. The discovery included Farmer’s video deposition on August 11, 2005, and Hersh’s

deposition the next day. Hersh’s deposition was truncated; counsel for Hersh suspended the

deposition after two and a half hours of questioning by Farmer on the basis that Farmer’s questions

of Hersh were related only to the chancery court lawsuit, not the instant defamation lawsuit. Farmer

filed a motion to compel and for sanctions related to the suspension of Hersh’s deposition. On

August 26, 2005, Farmer filed another motion for sanctions against Hersh pursuant to Rule 11 of the

Tennessee Rules of Civil Procedure; this second motion for sanctions related to Hersh’s

counterclaim and third-party complaint.2

On September 19, 2005, Farmer filed a motion for leave to file an amended complaint to

clarify certain allegations that were addressed in Hersh’s motion to dismiss. The complaint, as

Farmer sought to amend it, repeated the key allegation in the original complaint, that Hersh falsely

represented to the media and others that Farmer attempted to “steal” the Team from Hersh and/or

PSET, but added other explanatory statements.3 On November 7, 2005, Farmer filed a

“Memorandum Concerning All Motions Before the Court.” Farmer’s memorandum cited eight

motions that the parties had filed which had not yet been adjudicated, including Farmer’s motion to

compel discovery, Farmer’s motion for Rule 11 sanctions, Farmer’s motion for leave to file the

amended complaint, and Hersh’s motion to dismiss. Among other things, Farmer’s memorandum

asserted that the motions he had filed were ripe for adjudication, but that Hersh’s motion to dismiss

was not ripe because Farmer had sufficiently pled his allegations but had been denied discovery. He

claimed that “[q]uestions of damages and the meaning to be imputed from [Hersh’s] use of the word

‘steal’ are jury questions.” (Emphasis in original.)

On January 18, 2006, Judge Donald H. Allen entered an order of recusal, determining that

no Jackson judge should hear the case. On February 9, 2006, the Honorable J. S. Daniel, Senior

Judge, was appointed to hear the case.

On March 8, 2006, the trial court conducted a hearing on Hersh’s motion to dismiss for

failure to state a claim. The record on appeal does not include a transcript of that hearing. On April

13, 2006, the trial court entered an order on Hersh’s motion. The trial court explained in its order

that, because Hersh’s motion to dismiss was supplemented by memoranda, exhibits, and depositions

by the consent of both parties, the court had decided to treat Hersh’s Rule 12 motion as a Rule 56

motion for summary judgment. Considering the entire file as supplemented, the trial court found that

“the statement allegedly made by [Hersh] is not a defamatory statement in accordance with Kelly v.

2

In August 2005, Hersh filed a voluntary nonsuit as to his counterclaim and third-party complaint.

3

The amended complaint acknowledged that any defamatory remarks made during the course of legal

proceedings would not be actionable, asserting that “repeated libelous and slanderous allegations against [Farmer] which,

except for judicial immunity, would be actionable.”

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Tomlinson . . . and McCluen v. Roane County Times, Inc., 936 S.W.2d 936 (Tenn. Ct. App. 1996).”

The trial court also found that Farmer had failed to submit any evidence of damages resulting from

the allegedly defamatory statement. Based on these findings and its determination that no issues of

material fact existed for the jury’s consideration, the trial court granted summary judgment in favor

of Hersh. Farmer filed a motion to alter or amend the trial court’s decision claiming, among other

things, that he was not given proper notice that Hersh’s motion to dismiss would be considered as

a summary judgment motion. On August 8, 2006, the trial court entered an order denying Farmer’s

motion to alter or amend. Farmer now appeals.

On appeal, Farmer argues that the trial court erred in permitting Hersh to convert his motion

to dismiss into one for summary judgment without enforcing the procedural requirements set out in

Rule 56. He claimed that, at the time Hersh’s motion was heard, he had not yet completed discovery,

and that he should have had the opportunity to do so before consideration of a summary judgment

motion. Farmer further argues that, even if the trial court’s consideration of Hersh’s motion as one

for summary judgment was proper, the trial court erred in granting summary judgment in favor of

Hersh.

Whether the trial court erred in treating Hersh’s motion to dismiss as one for summary

judgment is a question of law subject to de novo review with no presumption of correctness in the

trial court’s decision. The trial court’s grant of summary judgment is also reviewed de novo with

no presumption of correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ.

P. 56.04. We must view the evidence in a light most favorable to the nonmoving party, giving that

party the benefit of all reasonable inferences. Warren, 954 S.W.2d at 723 (quoting Bain v. Wells,

936 S.W.2d 618, 622 (Tenn. 1997)). Once the moving party demonstrates that no genuine issues of

material fact exist, the non-moving party must demonstrate, by affidavits or otherwise, that a

disputed issue of material fact exists for trial. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).

Farmer first argues that the trial court erred in treating Hersh’s motion to dismiss as a motion

for summary judgment without giving him fair notice that the motion would be treated as such. In

its final order, the trial court explained its reason for treating Hersh’s motion as one for summary

judgment, noting that the motion to dismiss had “been supplemented by memorandums, exhibits and

depositions by consent of both parties such that it should be disposed of as a Rule 56 Motion for

Summary Judgment, Tenn. R. Civ. P.”

Treating a Rule 12 motion to dismiss as a Rule 56 motion for summary judgment under these

circumstances is authorized by Rule 12.02, which provides in pertinent part:

If, on a motion . . . to dismiss for failure to state a claim upon which relief can be

granted, matters outside the pleading are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment and disposed of as provided

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in Rule 56, and all parties shall be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56.

Tenn. R. Civ. P. 12.02 (emphasis added). Thus, under the rule, a motion to dismiss must be treated

as a motion for summary judgment when matters outside the complaint are submitted and are not

excluded by the court, provided that all parties are given a “reasonable opportunity” to present all

relevant material. The failure to comply with the specifics of Rule 56, such as the requirement of

filing a statement of undisputed facts, is rendered harmless if the record shows that the nonmoving

party could not have remedied a defect that is fatal to his cause of action. See Brick Church

Transmission v. S. Pilot Ins. Co., 140 S.W.3d 324, 329 (Tenn. Ct. App. 2003).

On appeal, Farmer argues that he was “ambushed” at the hearing on Hersh’s motion to

dismiss because he was given no advance notice that the motion would be treated as one for

summary judgment. He claims that he was not given a “reasonable opportunity” to present all

material relevant to the motion for summary judgment, as mandated under Rule 12.02. Farmer notes

specifically that he had filed a motion to compel the continuation of Hersh’s deposition, but his

motion had not yet been resolved by the trial court. The evidence obtained from Hersh’s deposition,

he argues, would have been sufficient to create a genuine issue of material fact regarding his

defamation claim. Farmer also claims that he had not completed his discovery on the issue of

damages, and that the premature grant of summary judgment in favor of Hersh deprived him of the

opportunity to do so.

In this case, it is undisputed that both parties submitted matters outside the complaint for the

trial court’s consideration in deciding Hersh’s motion to dismiss. The items submitted by the parties

were not excluded by the trial court. Under these circumstances, the trial court was not only

authorized to treat the motion as one for summary judgment, it was required to do so under Rule

12.02. Nevertheless, Farmer contends on appeal that he was given no notice of the trial court’s

decision to treat Hersh’s motion as one for summary judgment, and that he was precluded from

gathering additional evidence through discovery. Had he been permitted to do so, he contends, the

trial court would not have granted Hersh’s motion. Thus, he contends, the trial court erred in not

giving him a “reasonable opportunity to present all material made pertinent to [Hersh’s] motion by

Rule 56,” as required under Rule 12.02.

As noted above, the failure to permit further discovery is rendered harmless if the fatal defect

could not have been remedied by permitting further discovery. See Brick Church, 140 S.W.3d at

329. In this case, the trial court’s grant of summary judgment was based on its determination that

the statement allegedly made by Hersh was not a defamatory statement, and that Farmer failed to

submit evidence of any damages. Putting aside for the time being the issue of damages, no amount

of discovery would have shed any light on whether the alleged statement that Farmer attempted to

“steal” the Team from Hersh was defamatory. That decision must be made from examining the

statement itself, without anything more. Consequently, we examine first the trial court’s finding that

the allegedly defamatory statement was not defamatory as a matter of law.

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In order to establish defamation, Farmer must show that Hersh published a false statement

that defamed Farmer. Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).4

In any defamation case, the statement at issue must be injurious to the plaintiff’s character or

reputation. Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). “The words must

reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule.” Stones

River Motors, Inc. v. Mid-South Publishing Co., 651 S.W.2d 713, 720 (Tenn. Ct. App. 1983).

Mere hyperbole or exaggerated statements intended to make a point are not actionable defamatory

statements. See McCluen, 936 S.W.2d at 941-42.

In McCluen, cited by the trial court, the plaintiff was the county attorney. He sued the

defendants, a local publication and its owner/publisher, for defamation based on two published

editorial comments. The two comments, in essence, criticized the plaintiff and the other county

commissioners for entering into a “sweet-heart deal” with a local business; the defendants apparently

felt that the “deal” was not in the best interest of the county. See id. at 938-39. The defendants’

articles also asserted that the plaintiff and the county commissioners, rather than addressing the

public’s concerns at their budget meeting, entered into “a harangue attacking [the defendant] for

telling the truth about them and their deal” with the local business. Id. at 938. The articles stated

that the plaintiff had engaged in “braggadocio swagger and bluster” about suing the defendants, and

referred to the defendant and commissioners as a “gang of six” whose activities were reminiscent

of “the days of the Nixon White House.” Id. The case went to trial before a jury. At the conclusion

of the plaintiff’s proof, the trial court directed a verdict in favor of the defendants, finding that the

statements in the articles were not defamatory. The plaintiff county attorney appealed. The appellate

court affirmed the trial court’s decision. The McCluen court determined that the defendants’

characterizations of the plaintiff and the county commissioners were permissible hyperbole, such as

those documented in Stones River Motors, supra. It cited the holding in Stones River Motors that

comments that someone committed “pure highway robbery” or “ripped-off” another did not

constitute actionable defamation, but were mere hyperbole. The McCluen court also cited numerous

illustrative cases from other jurisdictions:

The comments and characterizations involved here, such as “pure highway robbery”

and “rip-off,” fit precisely the rationale of [Greenbelt Cooperative Publishing Ass’n,

Inc. v. Bresler, 398 U.S. 6 (1970)], [Old Dominion Branch No. 496 v. Austin, 418

U.S. 264 (1974)] and § 566 of the Restatement. These are clearly characterizations

of the facts set forth in the letter, and do not imply the existence of undisclosed

defamatory facts. Thus, these authorities are controlling. See also Orr v. Argus-Press

Co., 586 F.2d 1108 (6th Cir. 1978) (use of the word “swindle” to characterize the

plaintiff's violation of Michigan's Blue Sky law, while “ill chosen” held not

actionable); Fram v. Yellow Cab Co. of Pittsburgh, 380 F. Supp. 1314, 1329 (W.D. Pa. 1974)

(statement that the plaintiff’s previous statements reflect “the sort of paranoid thinking that you get

4

Because Farmer, as the City’s Mayor, is a public figure, he was also required to prove that Hersh acted with

malice, i.e., that he knew the statement to be false or acted with reckless disregard for its falsity. See Press, Inc. v.

Verran, 569 S.W .2d 435, 441 (Tenn. 1978).

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from a schizophrenic” held not actionable, because it would be understood as mere “rhetorical

hyperbole”); Reoux v. Glenn [Glens] Falls Post Co., 18 Misc.2d 1097, 190 N.Y.S.2d 598, 600-01

(N.Y. Sup. Ct. 1959) (statement that plaintiff's refusal to tell a court the whereabouts of certain

money was “contumacious conduct” was not actionable, because it simply expressed an opinion that

the plaintiff was “stubborn or contrary or obstinate or disobedient”); Schy v. Hearst Pub. Co., 205

F.2d 750 (7th Cir. 1953) (charging the plaintiffs with “gestapo-like” tactics not actionable, because

it was merely “a somewhat rhetorical way of saying that their conduct was dictatorial”); Bleecker v.

Drury, 149 F.2d 770 (2nd Cir. 1945) (statement that a lawyer had committed “a fraud upon the

court” was merely a “bombastic characterization of the plaintiff’s maneuvers” in representing his

client, and was not actionable as libel); Williams v. Rutherford Freight Lines, Inc., 10 N.C. App. 384,

179 S.E.2d 319, 323 (N.C. App. 1971) (statement in the course of a labor dispute that the plaintiffs

were “gangsters” is “nothing more than vituperation or name calling” and is not actionable); Heft

v. Burk, 302 So.2d 59, 60 (La. App. 1974) (statement that the plaintiff was “pirating” employees

away from the defendant and that his actions were “totally unethical” merely expressed the

defendant’s strong opinion concerning the plaintiff’s attempts to hire employees away from him, and

were not actionable); Brown v. Newman, 224 Tenn. (2 Pack.) 297, 454 S.W.2d 120 (1970) (statement

“have the skids been greased at city council?” not actionable).

Stone River Motors, 651 S.W.2d at 722, quoted in McCluen, 936 S.W.2d at 941.

In this case, Farmer’s complaint asserts that Hersh defamed him by saying that “Farmer

attempted to ‘steal’ the Team from Hersh.” This is an obvious exaggeration intended to emphasize

that Farmer wanted to purchase the team for far less than what Hersh considered to be fair market

value. This statement is similar to an assertion that Farmer was “swindling,” “ripping-off,” or

“pirating” the Team from Hersh. In this context, such terminology can only be characterized as

“mere hyperbole”or a figure of speech used to make a point. Therefore, assuming the truth of

Farmer’s allegation that Hersh “represented to the media and others that Farmer attempted to ‘steal’

the team from Hersh,” we find that such a statement constituted non-actionable, permissible

hyperbole and was not defamatory as a matter of law. See McCluen, 936 S.W.2d at 941. This

holding pretermits all other issues raised in this appeal, and we conclude that the trial court did not

err in granting summary judgment in favor of Hersh.

The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant Charles

Farmer and his surety, for which execution may issue, if necessary.

___________________________________

HOLLY M. KIRBY, JUDGE

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