Butler v. Diversified Energy

I N T H E C O U R T O F A P P E A L S FILED

A T K N O X V I L L E January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

W . D . B U T L E R a n d J . A . ) K N O X C O U N T Y

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P l a i n t i f f s - A p p e l l a n t s )

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v . ) H O N . H A R O L D W I M B E R L Y ,

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D I V E R S I F I E D E N E R G Y , I N C . , )

A P P O L O F U E L S , I N C . , a n d R A N D Y )

C . E D G E M O N )

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D e f e n d a n t s - A p p e l l e e s ) A F F I R M E D A N D R E M A N D E D

G A R R Y F E R R A R I S O F K N O X V I L L E F O R A P P E L L A N T S

F R A N C I S L . L L O Y D , J R . , O F K N O X V I L L E F O R D I V E R S I F I E D E N E R G Y , I N C . ,

a n d R A N D Y C . E D G E M O N

A N D R E W C R A I G T R O U T M A N O F K N O X V I L L E F O R A P O L L O F U E L S , I N C .

O P I N I O N

Goddard, P.J.

This is a suit by W. D. Butler and J. A. Halliburton,

employees of Norfolk Southern Corporation against Diversified

Energy/Appolo Fuels, Inc., and Randy C. Edgemon, President of

Diversified Energy, seeking damages for defamation.

The Trial Court granted a summary judgment against the

Plaintiffs, resulting in this appeal, wherein they raise the

following issues:

I. Is there a genuine issue of material fact whether

Defendant’s letter was capable of being understood as

defamatory?

II. Is there a genuine issue of material fact whether

Defendant published the June 2, 1995 letter?

III. Did the trial court err in failing to deny

Defendants’ motion for summary judgment for Defendants’

non-compliance with Tennessee Rule of Civil Procedure

56.03?

The following passages taken from the Plaintiffs’ brief

accurately state the facts necessary for disposition of this

appeal:

STATEMENT OF THE FACTS

Plaintiffs Butler and Halliburton have worked for

Norfolk Southern Corporation (“Norfolk Southern”) since

1972 and 1964, respectively. In June 1995, Mr. Butler

was an engineer and Mr. Halliburton a trainman. For

approximately six months prior to June 1995, Mr. Butler

and Mr. Halliburton worked on the same crew. The crew

worked the Middlesboro mine run which included

Defendant Appolo Fuels, a customer of Norfolk Southern.

Appolo Fuels is a mining company. It has a close

relationship with Defendant Diversified Energy, Inc.

who handles Appolo Fuels’ sales. Defendant Randy C.

Edgemon is President of Diversified Energy.

On June 1. 1995, Defendant Edgemon talked to Paul

Gibson at Norfolk Southern, alleging that Mr. Butler

and Mr. Halliburton were deliberately delaying the

trains. Defendant Edgemon wrote a letter to Norfolk

Southern superintendent Paul Gibson on June 2, 1995,

that is the basis for Plaintiffs’ complaint. The

letter reads as follows:

Dear Mr. Gibson:

We at Diversified Energy/Appolo Fuels are

experiencing disruptive problems out of two Norfolk

Southern crew employees. The employees are a Mr.

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Wayne Butler and Jay Halliburton. We are requesting

that the two named employees be kept from coming onto

Appolo Fuels property.

Sincerely,

DIVERSIFIED ENERGY, INC.

Randy C. Edgemon

President

Notwithstanding the fact that this case was resolved by

summary judgment, a preliminary determination of whether the

letter is capable of being understood as defamatory is a question

of law to be determined by the court. Memphis Publishing Co. v.

Nichols, 569 S.W.2d 412 (Tenn.1978).

In Stones River Motors, Inc., v. Mid-South Publishing

Co., 651 S.W.2d 713 (Tenn.App.1983), this Court stated the

following (at page 719):

For a communication to be libelous, it must

constitute a serious threat to the plaintiff’s

reputation. A libel does not occur simply because the

subject of a publication finds the publication

annoying, offensive or embarrassing. The words must

reasonably be construable as holding the plaintiff up

to public hatred, contempt or ridicule. They must

carry with them an element “of disgrace.” W. Prosser,

Law of Torts, § 111, p. 739 (4th Ed.1971).

The Defendants have cited the case of Moore v. Dreger,

576 S.W.2d 759 (Tenn.1979), which we believe is dispositive of

this appeal. The opinion, which we quote in its entirety, is

short and succinct, as is the wont of Justice Henry, its author.

OPINION

HENRY, Chief Justice.

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Respondents Dreger and Konvalinka, two waitresses

employed by petitioner Kentucky Rib-Eye, brought this

action for slander per se, alleging injury to their

occupational reputation. According to the complaint,

respondent Moore, who managed the restaurant, stated in

the presence of customers:

You all are no longer employed here because of giving

bad service. I had to pay for three meals for you

[Dreger] and three meals for you [Konvalinka] because

of the bad service you all gave.

The trial court granted petitioners’ motion to

dismiss for failure to state a claim under

Tenn.R.Civ.P. 12.02(6). The Court of Appeals reversed

and remanded for trial, ruling that a jury question had

been raised. We granted certiorari to consider whether

the statement is actionable under the circumstances.

Upon consideration, we hold that it is not.

FONES, COOPER, BROCK and HARBISON, JJ., concur.

Moreover, in Stones River, Judge Conner lists a number

of cases--including those from Tennessee, sister states, and

federal courts--holding that various characterizations of the

plaintiffs were not actionable (651 S.W.2d at page 722):

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 from a schizophrenic” held not actionable,

because it would be understood as mere “rhetorical

hyperbole”); Reoux v. Glenn 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

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Lines, Inc., 10 N.C.App. 384, 179 S.W.2d 319, 323

(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)

(statemennt 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. 297, 454 S.W.2d 120 (1970)

(statement “have the skids been greased at city

council?” not actionable).

Finally as to the first issue, we find a case from

Minnesota, McGrath v. TCF Bank Sav., 502 N.W.2d 801, (Minn.

App.1993), in which the language used is strikingly similar to

the case at bar. In that case the word describing the plaintiff

was “troublemaker.” In holding the use of that word was not

actionable, the Court of Appeals of Minnesota, stated the

following (at page 808):1

McGrath argues the trial court erred in granting

JNOV on his defamation claim. We disagree. The oral

statements at issue fall into three categories: (1)

threats that McGrath would be blackballed at other

banks; (2) statements between managers about McGrath;

and (3) a manager’s statement to employees about

McGrath. Essentially, all the managers’ statements

involve the phrase “troublemaker.” The trial court

found the phrase “troublemaker” was not actionable

because:

Unlike the accusation that a person is “dishonest,”

which suggests specific acts which society has

determined to be improper, making trouble is

generally in the eye of the beholder, and for that

reason cannot be proven true or false.

The trial court properly determined the phrase

“troublemaker” was not actionable under either

constitutional or common law standards. The term

“troublemaker” lacks precision and specificity. This

phrase also fails to suggest verifiable false facts

about McGrath. Finally, the ambiguity of the term

“troublemaker” prevents any underlying facts from being

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F o o t n o t e s a r e o m i t t e d .

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inferred from this phrase. Accordingly, the phrase

“troublemaker” is not actionable because it is

constitutionally protected.

Further, the statements’ lack of precision,

specificity, and verifiability prevents the inference

that McGrath committed specific acts that society finds

reprehensible. Thus, in this case, the phrase

“troublemaker” is not defamatory under the common law.

See Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d

471, 473 (Minn.App.1991) (under common law, adjective

such as “dishonest” was defamatory because it implied

the commission of specific act or conduct society found

reprehensible).

In light of our disposition of issue one, it is

unnecessary that we address issue two.

As to issue three, we agree with counsel for the

Defendants that the provision of Rule 56.03 of the Tennessee

Rules of Civil Procedure, directing a simple concise statement of

the material facts to accompany any motion for summary judgment,

is for the benefit of the trial court, and could be, as it was in

this case, waived. Moreover, even if we were to find that this

issue has merit, it would require remand to the Trial Court where

another motion for summary judgment could be made, meeting the

omitted requirement of Rule 56.03. Even if a second motion for

summary judgment is not filed and the facts remain as are

contained in the present record, a motion for a directed verdict

would be sustained at the conclusion of the Plaintiffs’ proof.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against the Plaintiffs and

their surety.

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H o u s t o n M . G o d d a r d , P . J .

C O N C U R :

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D o n T . M c M u r r a y , J .

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C h a r l e s D . S u s a n o , J r . , J .

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