Thomas Nathan Loftis, Sr. v. Randy Rayburn

04/20/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2018 Session

THOMAS NATHAN LOFTIS, SR. V. RANDY RAYBURN

Appeal from the Circuit Court for Davidson County

No. 17C-295 Kelvin D. Jones, Judge

No. M2017-01502-COA-R3-CV

The former director of a culinary program filed a complaint alleging defamation by

implication or innuendo and false light invasion of privacy against an individual he

claimed was the source of statements made in a newspaper article. The defendant moved

to dismiss the complaint on the basis that the statements were not actionable as a matter

of law. The trial court dismissed the complaint, and the former director appealed. We

affirm the trial court’s judgment dismissing the complaint and remand the issue of

attorney’s fees to the trial court.

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

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS

and W. NEAL MCBRAYER, JJ., joined.

William Gary Blackburn and Bryant Beatty Kroll, Nashville, Tennessee, for the

appellant, Thomas Nathan Loftis, Sr.

Daniel Alexander Horwitz and Alan Mark Sowell, Nashville, Tennessee, for the appellee,

Randy Rayburn.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

An article was published in The Tennessean on March 2, 2016, that was titled,

“Tennessee Flavors offers way to eat, drink, aid cooking arts.” Jim Myers was the

author, and he wrote about Tennessee Flavors, which he described as “a food and drink

throwdown with more than 75 vendors from across Middle Tennessee” that served as

“the big kahuna fundraiser that benefits the culinary arts program of Nashville State

Community College.” The relevant portions of the article include the following:

I’ve written before about the dearth of qualified line cooks in town, from

our best restaurants to the hotels and convention centers that need to feed

the burgeoning throngs. If you’re willing to work hard, love food and

cooking and want a stable job, every kitchen door in Nashville will fling

open.

[Randy] Rayburn recognized this need every day in his kitchens at the old

Sunset Grill, Midtown Cafe and Cabana, so he decided to do something

about it by dedicating himself to helping build the culinary arts program at

what used to be called Nashville Tech.

To honor him, the school named its new facility at the old Hickory Hollow

mall in Antioch The Randy Rayburn School of Culinary Arts

(http://www.nscc.edu/programs/c/business-and-applied-arts/culinary-arts/)

at Nashville State Community College. However, Rayburn will tell you it

hasn’t been easy. When he enlisted the help of local restaurateurs and chefs

to offer feedback on the program and the quality of its graduates, the

reports he got back weren’t flattering. The program was simply turning out

unqualified students.

Rayburn didn’t flinch because a career of running successful restaurants

teaches you how to cut losses and move on quickly. With his name on the

building, he rolled up his sleeves and decided to get more involved. He

went back to his dissatisfied cadre of chefs, including OGC (original

gangsta Chef) Deb Paquette of Etch, City House’s Tandy Wilson, Kim

Totzka of the Turnip Truck, Edgar Pendley from Urban Grub, barbecue

honcho Pat Martin, John Stephenson of the Family Wash and Max

Knoepfel, executive chef of the Music City Center, and asked for more

help.

They started by cleaning house from the top by removing director Tom

Loftis. It was a politically inexpedient move last year since Loftis was the

brother-in-law of Bill Freeman who was running for mayor at the time. If

the election had gone a different way, it might have affected funding for the

school.

Rayburn’s group knew they needed fresh blood and launched a nationwide

search, eventually hiring Paul Brennen over more than 50 other candidates.

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Today, the ship seems to be righted and on a good course. There’s

scholarship money galore for young, and older, students interested in the

culinary arts, and the new facility is a showplace.

The plaintiff Thomas Nathan Loftis, Sr., is the “Tom Loftis” referenced in Mr.

Myers’ article. Mr. Loftis filed a complaint against Randy Rayburn on February 3, 2017,

asserting that Mr. Rayburn was liable to him for false light invasion of privacy and

defamation by implication or innuendo. Mr. Rayburn filed a motion to dismiss the

complaint on February 24, and Mr. Loftis responded by moving to file an amended

complaint, which the trial court allowed. In his amended complaint, Mr. Loftis alleged

that the information in the article came from Mr. Rayburn and constituted his spoken

words. Mr. Loftis claimed that Mr. Rayburn’s “words of self-aggrandizement portray

Rayburn as the savior of culinary arts from the incompetence of Plaintiff.” Mr. Loftis

asserted that Mr. Rayburn’s “boastful and unseemly comments were reckless and made

with a conscience [sic] indifference to the truth.” He further asserted that Mr. Rayburn

“intentionally and recklessly impugned the competence and maligned the reputation of

the Plaintiff in order to embellish his own role in the Nashville culinary community.”

According to Mr. Loftis, Mr. Rayburn’s words and conduct “caused Plaintiff great

embarrassment, humiliation and emotional distress. As a direct consequence, Plaintiff

has been unable to find comparable work in Nashville, Tennessee.”

Mr. Loftis described his false light cause of action as follows:

Pursuant to an interview with Mr. Jim Myers of The Tennessean, the

Defendant Randy Rayburn spoke words that were of and concerning the

Plaintiff. The words spoken by Rayburn were thereafter published by Mr.

Myers in The Tennessean article dated March 2, 2016. Mr. Rayburn placed

the Plaintiff before the public in a false light and is therefore liable to the

Plaintiff for invasion of his privacy. The false light in which Plaintiff was

placed would be highly offensive to a reasonable person, in this instance

accusing the Plaintiff of incompetence and personally responsible for

alleged and unsubstantiated deficiencies of unnamed persons. The tenor of

the article and of Mr. Rayburn’s comments suggested that a list of well-

known local chefs unanimously agreed with this proposition, but that was

not true. The Defendant had actual knowledge of or acted with reckless

disregard to the falsity of the matters asserted and the false light in which

the Plaintiff was placed.

Mr. Loftis described his claim for defamation by implication or innuendo as follows:

The publication complained of and the words of Rayburn therein plainly

implied that the lack of proper performance by unidentified employees of

unnamed chefs in restaurants or as [sic] a consequence of the incompetence

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of the Plaintiff, even though that statement was not literally made. When

read and construed in the sense in which a reader would ordinarily

understand it, the clear implication was that any failure of a restaurant

employee who had attended the school was the fault of the Plaintiff.

Mr. Loftis sought compensatory damages in the amount of $500,000 and punitive

damages in an amount up to $1,000,000.

Mr. Rayburn moved to dismiss Mr. Loftis’s amended complaint asserting, inter

alia, that the statements complained of were not capable of defamatory meaning or

inference as a matter of law. The trial court held a hearing on July 10, 2017, and it

entered an order dismissing the amended complaint on July 19, 2017, ruling that the

statements complained of were not defamatory and failed to create liability as a matter of

law. The court wrote:

1. The Plaintiff has filed claims for false light invasion of privacy and

defamation by implication or innuendo based on statements contained in a

newspaper article attached to his Amended Complaint that was written by

Jim Myers and published by The Tennessean. The Plaintiff has alleged that

the statements contained in the article were spoken by the Defendant.

2. Under Tenn. R. Civ. P. 12.02(6), the Court construes the Plaintiff’s

Amended Complaint liberally in favor of the Plaintiff, taking all allegations

of fact as true, and will deny the Defendant’s Motion to Dismiss unless it

appears that the Plaintiff can prove no set of facts in support of his claims

that would entitle him to relief.

3. Under applicable law, the statements contained in the article must be

read as a person of ordinary intelligence would understand them in light of

the surrounding circumstances; the Court is not bound by the Plaintiff’s

interpretations of the statements contained in the article; there is significant

and substantial overlap between false light and defamation; and whether

any statement contained in the article is capable of being understood as

defamatory is a question of law to be determined by the Court.

4. Applying these standards to the instant case, the Court is of the opinion

that the statements contained in The Tennessean article are not capable of

conveying a defamatory meaning and that they do not give rise to liability

as a matter of law.

5. THEREFORE, the Defendant’s Motion to Dismiss the Plaintiff’s

Amended Complaint is GRANTED. The Plaintiff’s Amended Complaint,

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and each cause of action therein, is hereby DISMISSED with prejudice for

failure to state a claim upon which relief can be granted.

Mr. Loftis filed a notice of appeal followed by a notice that no transcript or

statement of evidence would be filed. Mr. Rayburn then filed a notice that a transcript or

statement of the proceedings would be filed as part of the appellate record pursuant to

Tenn. R. App. P. 24(d). Mr. Rayburn asked the trial court to assess Mr. Loftis for the

cost of preparing the transcript of the proceedings if the court deemed a full transcript to

be necessary. The trial court issued an order on August 8, 2017, stating that “the

transcript of proceedings is necessary to convey a complete account of what transpired at

the hearing” and directing Mr. Loftis to assume the expense of preparing the transcript.

Mr. Loftis filed a motion to alter, amend, and to set aside the August 8 order regarding

the transcript, which the trial court denied.

On appeal, Mr. Loftis raises the following arguments: (1) whether Mr. Rayburn’s

public comments placed Mr. Loftis in a negative and unfair light; (2) whether Mr.

Rayburn should have known that Mr. Loftis, as a reasonable man, would be seriously

aggrieved and offended by publicity suggesting that pervasive incompetence among line

cooks in Nashville was directly attributable to him; (3) whether the trial court’s order

dismissing the amended complaint should be set aside for failure to rule upon the theories

Mr. Loftis advanced; (4) whether the order requiring Mr. Loftis to bear the cost of the

transcript should be reversed; and (5) whether Mr. Rayburn should be sanctioned for

characterizing Mr. Loftis’s attorney’s statement at the hearing as a judicial admission.

Mr. Rayburn raises the following additional issues on appeal: (1) whether he is

entitled to attorney’s fees pursuant to Tenn. Code Ann. § 29-20-113; (2) whether he is

entitled to attorney’s fees for defending against a meritless claim for sanctions; and (3)

whether Mr. Loftis’s appeal is frivolous within the meaning of Tenn. Code Ann. § 27-1-

122.

II. ANALYSIS

The trial court dismissed Mr. Loftis’s complaint for failing to state a claim for

which relief could be granted. See TENN. R. CIV. P. 12.02(6). A motion to dismiss is

resolved “by an examination of the pleadings alone.” Webb v. Nashville Area Habitat for

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).1 A defendant filing a motion to

dismiss “‘admits the truth of all of the relevant and material allegations contained in the

complaint, but . . . asserts that the allegations fail to establish a cause of action.’” Id.

1

Mr. Loftis attached a copy of The Tennessean article to his amended complaint, rendering it a part of the

pleadings and appropriate for consideration by the court ruling on a motion to dismiss. See Belton v. City

of Memphis, No. W2015-01785-COA-R3-CV, 2016 WL 2754407, at *4 (Tenn. Ct. App. May 10, 2016); McGhee

v. Shelby Cnty. Gov’t, No. W2012-00185-COA-R3-CV, 2012 WL 2087188, at *1 n.2 (Tenn. Ct. App.

June 11, 2012).

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(quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010)). When

ruling on a motion to dismiss, courts are required to ‘“construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit of all

reasonable inferences.”’ Id. (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32

(Tenn. 2007)). “A trial court should grant a motion to dismiss ‘only when it appears that

the plaintiff can prove no set of facts in support of the claim that would entitle the

plaintiff to relief.”’ Id. (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857

(Tenn. 2002)). We review the trial court’s decision to grant a defendant’s motion to

dismiss de novo. Id. (citing Brown, 328 S.W.3d at 855, and Stein v. Davidson Hotel Co.,

945 S.W.2d 714, 716 (Tenn. 1997)).

We begin with Mr. Loftis’s argument about why he believes The Tennessean

article gives rise to a claim against Mr. Rayburn for false light invasion of privacy or

defamation by implication or innuendo. The portions of the article that Mr. Loftis

focuses on include the following:

 Mr. Rayburn’s concern over “the dearth of qualified line cooks in

town, from our best restaurants to the hotels and convention centers.

[Mr.] Rayburn recognized this need every day in his kitchen . . . so

he decided to do something about it by dedicating himself to helping

build a Culinary Arts program at what used to be called Nashville

Tech.”

 Mr. Rayburn’s perspective that “it hasn’t been easy.” “When he

supposedly sought the help [from] an unnamed and unnumbered set

of local restauranteurs for feedback, ‘the reports he got back weren’t

flattering. The program was simply turning out unqualified

students.’”

 Mr. Rayburn’s decision to “apply his experience ‘in how to cut

losses and move on quickly.’ He ‘decided to get more involved.’”

 “Mr. Rayburn’s management involvement began ‘by cleaning house

from the top by removing director Tom Loftis.’”

According to Mr. Loftis,

The unmistakable suggestion of [Mr. Rayburn’s] remarks was that: (1) line

cooks in Nashville were unqualified; (2) all of these persons graduated

from Nashville State; (3) all of them were unqualified because of some

implied incompetence on the part of Mr. Loftis; (4) [Mr.] Rayburn’s

reputation in the culinary community was at risk; and (5) therefore, it was

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necessary to “clean house” by removing the man depicted as personally

responsible for the perceived deficiencies.

A. Defamation by Implication

The basis of a defamation action is that the “allegedly defamatory statement has

injured the plaintiff’s character and reputation.” Aegis Scis. Corp. v. Zelenik, No.

M2012-00898-COA-R3-CV, 2013 WL 175807, at *5 (Tenn. Ct. App. Jan. 16, 2013)

(citing Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 820

(Tenn. 1994)). To prevail on a claim for defamation, a plaintiff must establish that (1)

the defendant published a statement, (2) the defendant knew the statement was false and

defamatory to the plaintiff, and (3) the defendant acted ‘“with reckless disregard for the

truth of the statement or with negligence in failing to ascertain the truth of the

statement.”’ Id. (quoting Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn.

1999)). As we have explained in earlier defamation cases,

“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.’”

Revis v. McClean, 31 S.W.3d 250, 252-53 (Tenn. Ct. App. 2000) (quoting Stones River

Motors, Inc. v. Mid-South Publ’g Co., Inc., 651 S.W.2d 713, 719 (Tenn. Ct. App. 1983)

(citations omitted)); see also Isbell v. Travis Electric Co., No. M1999-00052-COA-R3-

CV, 2000 WL 1817252, at *5 (Tenn. Ct. App. Dec. 13, 2000) (stating libel is type of

defamation). A statement is defamatory ‘“if it tends so to harm the reputation of another

as to lower him [or her] in the estimation of the community or to deter third persons from

associating or dealing with him [or her].’” Biltcliffe v. Hailey’s Harbor, Inc., No.

M2003-02408-COA-R3-CV, 2005 WL 2860164, at *4 (Tenn. Ct. App. Oct. 27, 2005)

(quoting RESTATEMENT (SECOND) OF TORTS § 559 (1977)).

Tennessee courts first recognized the tort of defamation by implication or

innuendo in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978). In that

case, a newspaper published a story about a wife who shot her husband and another

woman after the wife found her husband at the other woman’s house. Nichols, 569

S.W.2d at 414. The woman who was shot sued the newspaper for defamation, asserting

that the newspaper falsely implied that she was having an affair with the assailant’s

husband and that the assailant caught them together when she fired the shots. Id. The

undisputed evidence showed, however, that several people were at the plaintiff’s house

when the assailant found her husband, and they were all just sitting around the living

room talking. Id. The newspaper defended the defamation action by emphasizing that

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everything it printed in the article was true. The Nichols Court wrote that the truth of the

statements did not relieve the newspaper of liability if “the meaning reasonably conveyed

by the published words is defamatory.” Id. at 420. The Court explained that “[t]he

published statement . . . so distorted the truth as to make the entire article false and

defamatory. It is no defense whatever that individual statements within the article were

literally true. Truth is available as an absolute defense only when the defamatory

meaning conveyed by the words is true.” Id.

The Nichols Court did not describe the type of defamation at issue in the case as

“defamation by implication,” or “defamation by innuendo,” but later courts

acknowledged that Nichols was the first Tennessee case to recognize the doctrine of

defamation by innuendo or implication. Isbell, 2000 WL 1817252, at *6; see also

Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 318 n.5 (Tenn.

Ct. App. 2012). The Court of Appeals has explained that “a statement may be capable of

defamatory meaning even if the words do not appear defamatory on their face, but

instead imply or suggest a defamatory meaning.” Grant v. Commercial Appeal, No.

W2015-00208-COA-R3-CV, 2015 WL 5772524, at *11 (Tenn. Ct. App. Sept. 18, 2015).

In other words, even if a defendant’s statements are true, the defendant may be liable if

the statements “imply facts that are not true.” Id. at *12 (citing Zelenik, 2013 WL

175807, at *11). ‘“The rationale behind this rule is that, when truthful statements carry a

defamatory innuendo, the factual implication should also be true to justify the

implication.”’ Isbell, 2000 WL 1817252, at *6 (quoting Fitzgerald v. Tucker, 737 So. 2d

706, 717 (La. 1999)).

“Whether a communication is capable of conveying a defamatory meaning is a

question of law.” Revis, 31 S.W.3d at 253 (citing Pate v. Serv. Merch. Co., Inc., 959

S.W.2d 569 (Tenn. Ct. App. 1996)); see also Nichols, 569 S.W.2d at 419. According to

the Grant court:

A trial court may determine that a statement is not defamatory as a matter

of law only when “the statement is not reasonably capable of any

defamatory meaning and cannot be reasonably understood in any

defamatory sense.” Aegis Sciences Corp., 2013 WL 175807, at *6 (citing

Biltcliffe v. Hailey’s Harbor, Inc., No. M2003-02408-COA-R3-CV, 2005

WL 2860164, at *4 (Tenn. Ct. App. Oct. 27, 2005)). When considering

whether a statement is capable of being defamatory, it must be judged

within the context it is made. Revis, 31 S.W.3d [at] 253. Additionally, it

“should be read as a person of ordinary intelligence would understand [it]

in light of the surrounding circumstances.” Id. (citations omitted). To this

end, courts are not bound to the plaintiff’s interpretation of the allegedly

defamatory material, and if the words “do not reasonably have the meaning

plaintiff ascribes to them, the court must disregard” plaintiff’s

interpretation. Stones River Motors, Inc. v. Mid-South Publ’g Co., 651

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S.W.2d 713[, 719] (Tenn. Ct. App. 1983) (citing Dupont Eng’g Co. v.

Nashville Banner Publ’g Co., 13 F.2d 186 (M.D. Tenn. 1925)).

Grant, 2015 WL 5772524, at *10.

To prevail on his defamation by implication or innuendo claim, Mr. Loftis must

establish in his complaint that Mr. Rayburn published the statements and that the

meaning reasonably conveyed by the statements was defamatory. Nichols, 569 S.W.2d at

420. As Grant instructs, if the statements at issue are true but they imply facts that are

not true, a defendant who made the statements may be liable for defamation by

implication or innuendo. Grant, 2015 WL 5772524, at *12.

Mr. Rayburn is not the author of the article, and he is not quoted anywhere in the

article. However, Mr. Loftis asserted in his amended complaint that during an interview

with Mr. Myers, Mr. Rayburn spoke the words that Mr. Myers printed. For purposes of

ruling on Mr. Rayburn’s motion to dismiss, we construe the complaint liberally and

presume all factual allegations are true. Webb, 346 S.W.3d at 426. Thus, we find that

Mr. Loftis has asserted that Mr. Rayburn made the statements that Mr. Loftis finds

objectionable.

Mr. Loftis does not question the literal truth of the statements in the article, but he

argues they imply that he personally was to blame for the unqualified line cooks in

Nashville. We do not agree. Mr. Myers’ statement that the school’s culinary program

was not turning out qualified students appears to have been based on the feedback Mr.

Rayburn got from other chefs in the area. The article does not suggest that all of the

unqualified line cooks in the area received training at the culinary program at Nashville

Tech or that Mr. Loftis was to blame for the dearth of qualified line cooks, as Mr. Loftis

argues. Mr. Loftis is not mentioned at all until the second page, toward the end of the

article, when Mr. Myers wrote: “They started by cleaning house from the top by

removing director Tom Loftis.” Mr. Myers does not clarify who “they” were, and the

article does not impugn Mr. Loftis personally. Contrary to Mr. Loftis’s argument, we do

not believe the article can reasonably be interpreted as depicting Mr. Loftis as “personally

responsible for the perceived deficiencies of the culinary program.”

The only other time Mr. Loftis is mentioned in the article is in the sentence: “It

[removing Tom Loftis] was a politically inexpedient move last year since Loftis was the

brother-in-law of Bill Freeman who was running for mayor at the time. If the election

had gone a different way, it might have affected funding for the school.” This sentence

simply notes the relationship of Mr. Loftis to Mr. Freeman and has nothing to do with

Mr. Loftis’s character, reputation, or ability as the director of the culinary program. Mr.

Loftis’s assertion that this statement implies he “might unethically have retaliated by

punishing the school with a loss of funding from the Metropolitan Government, should

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Mr. Freeman become Mayor” is far-fetched and not a reasonable interpretation of the

statement.

We find as a matter of law that the statements in Mr. Myers’ article cannot

reasonably be construed as implying facts that are not true, as they must to qualify as

defamatory by implication or innuendo. Grant, 2015 WL 5772524, at *11. We are not

bound by Mr. Loftis’s interpretation of the statements because we find they do not

reasonably have the meaning he ascribes to them. Id. at *10. We find the statements Mr.

Loftis focuses on cannot reasonably be interpreted as holding Mr. Loftis ‘“up to public

hatred, contempt or ridicule,”’ Revis, 31 S.W.3d at 253 (quoting Stones River Motors,

651 S.W.2d at 719), or as lowering him in the eyes of the community, Biltcliffe, 2005 WL

2860164, at *4. Thus, we affirm the trial court’s decision granting Mr. Rayburn’s motion

to dismiss Mr. Loftis’s claim for defamation by implication or innuendo.

B. False Light Invasion of Privacy

Tennessee first recognized the tort of false light invasion of privacy in West v.

Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001). The West Court

announced that Section 652E of the Restatement (Second) of Torts (1977), as modified,

accurately describes the elements of the tort for purposes of plaintiffs in Tennessee.

West, 53 S.W.3d at 641; see also Eisenstein, 389 S.W.3d at 317. According to the

Restatement (Second) of Torts,

One who gives publicity to a matter concerning another that places the

other before the public in a false light is subject to liability to the other for

invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive

to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other would

be placed.

RESTATEMENT (SECOND) OF TORTS § 652E (1977).

The West Court departed from the Restatement by stating that Tennessee does not

require a plaintiff asserting a false light cause of action to prove actual malice unless the

plaintiff is a public official or public figure. West, 53 S.W.3d at 647; see also Lewis v.

NewsChannel 5 Network, L.P., 238 S.W.3d 270, 303 (Tenn. Ct. App. 2007). The West

Court emphasized that a defendant will not be liable for false light invasion of privacy

unless “the publicity is highly offensive to a reasonable person.” West, 53 S.W.3d at 646

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(citing RESTATEMENT (SECOND) OF TORTS § 652E(a)).2 If a defendant publishes

“intentionally falsified” information about a plaintiff, the plaintiff is unable to recover

under the theory of false light invasion of privacy unless the publication constitutes a

“seriously offensive misstatement.” Id.

As with defamation by implication, a statement’s truth will not protect a defendant

from liability when a plaintiff asserts a false light invasion of privacy cause of action.

Eisenstein, 389 S.W.3d at 317. As the West Court explained,

The facts may be true in a false light claim. However, the angle from

which the facts are presented, or the omission of certain material facts,

results in placing the plaintiff in a false light. “‘Literal accuracy of separate

statements will not render a communication “true” where the implication of

the communication as a whole was false.’ . . . The question is whether [the

defendant] made ‘discrete presentations of information in a fashion which

rendered the publication susceptible to inferences casting [the plaintiff] in a

false light.’” Santillo v. Reedel, 430 Pa. Super. 290, 634 A.2d 264, 267

(1993) (citing Larsen v. Philadelphia Newspapers, Inc., 375 Pa. Super. 66,

543 A.2d 1181 (1988) (emphasis added)).

West, 53 S.W.3d at 645 n.5. Thus, the Eisenstein court wrote, “the falsehood involved in

a false light action ‘may consist in dissemination of matters which, while technically true,

give an objectionably false impression where the communicator fails to modify the basic

statement with amplifying facts which modify the statement to create a less objectionable

impression corresponding to full reality.’” Eisenstein, 389 S.W.3d at 318 (quoting

Russell G. Donaldson, Annotation, False Light Invasion of Privacy—Cognizability and

Elements, 57 A.L.R. 4TH 22, § 13 (Cum. Supp. 2012)).

The Court of Appeals addressed the type of publicity that is required for a plaintiff

to prevail on a false light claim in Brown v. Mapco Express, Inc., 393 S.W.3d 696 (Tenn.

Ct. App. 2012). The Brown court explained that the offensive statements at issue must be

‘“made public, by communicating [them] to the public at large, or to so many persons

that the matter must be regarded as substantially certain to become one of public

2

Comment c to the Restatement (Second) of Torts § 652E addresses the requirement that the offensive

statement be “highly offensive to a reasonable person,” stating in relevant part:

The rule stated in this Section applies only when the publicity given to the plaintiff has

placed him in a false light before the public, of a kind that would be highly offensive to a

reasonable person. In other words, it applies only when the defendant knows that the

plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling

seriously offended and aggrieved by the publicity. . . . It is only when there is such a

major misrepresentation of his character, history, activities or beliefs that serious offense

may reasonably be expected to be taken by a reasonable man in his position, that there is

a cause of action for invasion of privacy.

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knowledge.”’ Brown, 393 S.W.3d at 707 (quoting Secured Fin. Solutions, LLC v. Winer,

No. M2009-00885-COA-R3-CV, 2010 WL 334644, at *4 (Tenn. Ct. App. Jan. 28, 2010)

(itself quoting RESTATEMENT (SECOND) OF TORTS § 652D cmt. a)). A defendant’s

communication to “one person or a small group of persons” ‘“fails, as a matter of law, to

satisfy the ‘publicity’ requirement of the tort of false light invasion of privacy.’” Id.

(quoting Winer, 2010 WL 334644, at *4).

To prevail on his false light invasion of privacy claim, Mr. Loftis must show that

the statements he asserts Mr. Rayburn made through Mr. Myers’ article placed him in a

false light and that the false light would be “highly offensive” to a reasonable person.

We find Mr. Loftis satisfied the publicity requirement of the tort through his assertion

that Mr. Rayburn conveyed the information in the article to Mr. Myers during an

interview. Although Mr. Loftis asserts that Mr. Rayburn spoke the statements at issue

only to Mr. Myers, it is fair to assume Mr. Rayburn knew Mr. Myers was a reporter for

The Tennessean and that Mr. Myers would report his statements in the newspaper. The

Restatement (Second) of Torts addresses the publicity requirement by explaining in a

comment that the matter at issue must be “made public, by communicating it to the public

at large, or to so many persons that the matter must be regarded as substantially certain to

become one of public knowledge.” RESTATEMENT (SECOND) OF TORTS § 652D cmt. a.

The comment continues:

Thus it is not an invasion of the right of privacy, within the rule stated in

this Section, to communicate a fact concerning the plaintiff’s private life to

a single person or even to a small group of persons. On the other hand, any

publication in a newspaper or a magazine, even of small circulation, or in a

handbill distributed to a large number of persons, or any broadcast over the

radio, or statement made in an address to a large audience, is sufficient to

give publicity within the meaning of the term as it is used in this Section.

The distinction, in other words, is one between private and public

communication.

We do not, however, believe that the statements can be considered “highly

offensive to a reasonable person,” as they must be for Mr. Loftis to proceed with this

claim. West, 53 S.W.3d at 643-44; Eisenstein, 389 S.W.3d at 317. For the reasons we

found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also

find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light.

See West, 53 S.W.3d at 645 n.5. We do not believe a reasonable person would be

justified, in the eyes of the community, of being seriously offended and aggrieved by the

statements at issue. See RESTATEMENT (SECOND) OF TORTS § 652E cmt. c. Accordingly,

we affirm the trial court’s decision granting Mr. Rayburn’s motion to dismiss Mr.

Loftis’s false light invasion of privacy cause of action.3

3

We decline to address the other grounds Mr. Rayburn briefs in support of the trial court’s order

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C. Trial Court’s Order

Mr. Loftis asserts that the trial court failed to address the elements of his false light

or defamation by implication or innuendo causes of action in its order granting Mr.

Rayburn’s motion to dismiss and that the order should, therefore, be set aside. Upon

reviewing the trial court’s order, we find the court recognized both causes of action Mr.

Loftis asserted in his amended complaint, announced the proper standard for considering

Mr. Rayburn’s motion to dismiss, and properly stated, “[u]nder applicable law, the

statements contained in the article must be read as a person of ordinary intelligence

would understand them in light of the surrounding circumstances; the Court is not bound

by the Plaintiff’s interpretations of the statements contained in the article.” Then, after

noting that “there is significant and substantial overlap” between Mr. Loftis’s false light

and defamation causes of action, the trial court found that the statements contained in the

newspaper article “are not capable of conveying a defamatory meaning” and “do not give

rise to liability as a matter of law.”

The trial court correctly stated that there is a significant and substantial overlap

between the torts of defamation by implication or innuendo and false light invasion of

privacy. See Eisenstein, 389 S.W.3d at 318 n.5 (quoting Jews For Jesus, Inc. v. Rapp,

997 So. 2d 1098, 1113 (Fla. 2008)). As we explained in Eisenstein, the primary

distinction between the two torts is the type of injury addressed: ‘“in defamation cases

the interest sought to be protected is the objective one of reputation, either economic,

political, or personal, in the outside world. In privacy cases the interest affected is the

subjective one of injury to [the] inner person.”’ Id. (quoting West, 53 S.W.3d at 645-46);

see also Winer, 2010 WL 334644, at *4. The West Court noted that damages resulting

from false light invasion of privacy may include injury to standing in a community,

humiliation, or emotional distress. West, 53 S.W.3d at 648.

As we discussed above, the statements at issue must be capable of implying a

defamatory meaning to survive a motion to dismiss a defamation by implication or

innuendo claim, Grant, 2015 WL 5772524, at *11, and they must cast the plaintiff in a

false light in such a way that they could be highly offensive to a reasonable person to

survive a motion to dismiss a false light claim, West, 53 S.W.3d at 646. Because of the

overlap between the two torts, when the trial court held that the statements in the article

“are not capable of conveying a defamatory meaning” and “do not give rise to liability as

a matter of law,” we find the trial court’s holding applied to both of Mr. Loftis’s causes

of action and that the trial court sufficiently addressed the elements of each tort.4

dismissing Mr. Loftis’s amended complaint because they are pretermitted by our holding that the

statements in the newspaper article are not defamatory as a matter of law.

4

In any event, because we review the trial court’s judgment granting Mr. Rayburn’s motion to dismiss de

novo, with no deference given to the trial court’s decision, any deficiencies in the trial court’s order are

rectified herein, on appeal.

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D. Cost of the Transcript

Mr. Loftis next complains the trial court erred in requiring him to pay the expense

of preparing a transcript of the hearing on Mr. Rayburn’s motion to dismiss. Tennessee

Rule of Appellate Procedure 24(d) allows an appellee to file a transcript of proceedings

and ask the court to assess the cost of its preparation to the appellant if the appellant

notifies the court and the appellee that he or she does not intend to file a transcript. This

rule states, in relevant part:

If no transcript or statement of the evidence or proceedings is to be filed,

the appellant shall, within 15 days after filing the notice of appeal, file with

the clerk of the trial court and serve upon the appellee a notice that no

transcript or statement is to be filed. If the appellee deems a transcript or

statement of the evidence or proceedings to be necessary, the appellee shall,

within 15 days after service of the appellant’s notice, file with the clerk of

the trial court and serve upon the appellant a notice that a transcript or

statement is to be filed. The appellee shall prepare the transcript or

statement at the appellee’s own expense or apply to the trial court for an

order requiring the appellant to assume the expense.

Mr. Loftis filed a notice on July 26, 2017, that he did not intend to file a transcript or

statement of evidence. Then, on July 31, 2017, Mr. Rayburn filed a notice pursuant to

Rule 24(d) in which he stated his belief that a record of the hearing on his motion to

dismiss was essential for appellate review. He requested that the trial court include a

transcript of the proceedings in the appellate record and asked the court to charge Mr.

Loftis with the cost of preparing it if the court deemed a full transcript of the proceedings

to be necessary. The trial court issued an order on August 8, 2017, in which it stated that

“the transcript of proceedings is necessary to convey a complete account of what

transpired at the hearing” and then directed Mr. Loftis to “assume the expense of the

preparation of the Transcript of Evidence.”

Mr. Loftis takes issue with the trial court’s order, in part because the trial court

referred to the transcript as containing “evidence” rather than simply containing a record

of the “proceedings.” Mr. Loftis argues that the record contains no “evidence” because

his amended complaint was dismissed pursuant to a motion to dismiss. Mr. Rayburn

responds that the trial court properly referred to the transcript as containing a record of

the “proceedings.” Mr. Rayburn further argues that the record includes Mr. Loftis’s

attorney’s response to a question by the court, and this response constitutes a judicial

admission, which is evidence.5

5

Mr. Rayburn cites the following colloquy in support of his argument that Mr. Loftis’s attorney made a

judicial admission:

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Tennessee Rule of Appellate Procedure 24 governs the contents of the appellate

record, and it “is designed to ensure that the record on appeal conveys ‘a fair, accurate

and complete account of what transpired with respect to those issues that are the bases of

appeal.’” Bradshaw v. Daniel, 854 S.W.2d 865, 868 (Tenn. 1993) (quoting TENN. R. APP.

P. 24(a)). Appellate courts give deference to a trial court’s decision about the contents of

an appellate record because “[t]he trial court is in the best position to determine those

matters necessary to provide a fair, accurate, and complete account of the proceedings

upon which the appeal is based.” State v. Housler, 167 S.W.3d 294, 296 (Tenn. 2005);

see also Bradshaw, 854 S.W.2d at 868 (‘“Any differences regarding whether the record

accurately discloses what occurred in the trial court shall be submitted to and settled by

the trial court regardless of whether the record has been transmitted to the appellate

court.”’) (quoting TENN. R. APP. P. 24(e)); Artrip v. Crilley, 688 S.W.2d 451, 453 (Tenn.

Ct. App. 1985) (“The trial court is the final arbiter of the transcript or statement of the

proceedings.”).6

Subsection (e) of Appellate Rule 24 provides, in pertinent part:

Any differences regarding whether the record accurately discloses what

occurred in the trial court shall be submitted to and settled by the trial court

regardless of whether the record has been transmitted to the appellate court.

Absent extraordinary circumstances, the determination of the trial court is

conclusive. If necessary, the appellate or trial court may direct that a

supplemental record be certified and transmitted.

(Emphasis added.) As subsection (e) states, the trial court’s decision about whether the

transcript of the hearing accurately discloses what occurred in the trial court and whether

it should be included in the record is conclusive, “absent extraordinary circumstances.”

Mr. Loftis fails to cite any extraordinary circumstances to justify reversing the trial

court’s decision on this issue.

The trial court has discretion to apportion costs between the parties, and “appellate

courts are generally disinclined to interfere with a trial court’s decision in assessing costs

unless there is a clear abuse of discretion.” Perdue v. Green Branch Mining Co., Inc.,

THE COURT: Now, wait, but it says - - it didn’t say - - he says “they.” Who’s the

“they” in “They started by cleaning house”?

Mr. BLACKBURN: Well, they’re describing him as the - - as the voice of the school, as

the board, as the - - the person for whom the school is named - - named. And the next

paragraph begins with, “Rayburn’s group knew they needed fresh blood.” That’s what

they knew.

6

We also note that Tenn. R. App. P. 24(h) permits any party to “prepar[e] and fil[e] with the clerk of the

trial court a transcript or statement of the evidence or proceedings at any time prior to entry of an

appealable judgment or order.”

- 15 -

837 S.W.2d 56, 60 (Tenn. 1992). “A court abuses its discretion when it causes an

injustice to the party challenging the decision by (1) applying an incorrect legal standard,

(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly

erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524

(Tenn. 2010); see also Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Under this

standard, we are not permitted to second-guess the trial court’s decision or substitute our

discretion for that of the lower court. Beecher, 312 S.W.3d at 524. Mr. Loftis is the

appellant here, and the appellant is normally the party taxed with the cost of preparing the

transcript of proceedings for purposes of an appeal. See TENN. R. APP. P. 24(b). Mr.

Loftis has failed to show the trial court abused its discretion in assessing him with the

cost of preparing the transcript of the proceedings. Thus, we affirm the trial court’s

assessment of the cost to Mr. Loftis.

E. Mr. Loftis’s Request for Sanctions

We turn next to Mr. Loftis’s argument that Mr. Rayburn should be sanctioned for

suggesting that Mr. Loftis’s attorney’s response to the trial court judge about the meaning

of “they” in the newspaper article can be treated as a judicial admission. The Court of

Appeals has stated that “a statement of counsel in pleadings or stipulation or orally in

court is generally regarded as a conclusive, judicial admission . . . .” Belew v. Gilmer,

No. 01-A-019010-CV-00365, 1991 WL 45396, at *6 (Tenn. Ct. App. Apr. 5, 1991); see

also Garland v. Seaboard Coastline R.R. Co., 658 S.W.2d 528, 531 (Tenn. 1983) (stating

counsel’s admission in open court during hearing on motion to dismiss “is binding on the

defendant in this Court”). Mr. Loftis fails to address or distinguish these cases, and he

fails to explain why Mr. Rayburn’s characterization of Mr. Loftis’s attorney’s response

should not be treated as a judicial admission that is binding on Mr. Loftis or to cite any

authority in support of his request for sanctions. We, therefore, find Mr. Loftis’s

suggestion that Mr. Rayburn should be sanctioned has no merit.

F. Issues Mr. Rayburn Raises on Appeal

Mr. Rayburn argues that he is entitled to attorney’s fees pursuant to Tenn. Code

Ann. § 29-20-113(a). This statute provides, in relevant part:

[I]f a claim is filed with a Tennessee or federal court, the Tennessee claims

commission, board of claims, or any other judicial body established by the

state or by a governmental entity of the state, against an employee of the

state or of a governmental entity of the state in the person’s individual

capacity, and the claim arises from actions or omissions of the employee

acting in an official capacity or under color of law, and that employee

prevails in the proceeding as provided in this section, then the court or other

judicial body on motion shall award reasonable attorneys’ fees and costs

incurred by the employee in defending the claim filed against the employee.

- 16 -

Mr. Rayburn states in his brief that “[t]he Trial Court did not adjudicate Mr. Rayburn’s

claim for attorney’s fees, presumably because other fee-shifting statutes provide for such

adjudication only after the appellate process has been exhausted.” In the footnote that

follows this statement, Mr. Rayburn refers the reader to Tenn. Code Ann. § 20-12-

119(c)(3). Subsection (c)(1) requires an award of costs, including attorney’s fees, when

the motion to dismiss is successful. Subsection (c)(3) states:

An award of costs pursuant to this subsection (c) shall be made only after

all appeals of the issue of the granting of the motion to dismiss have been

exhausted and if the final outcome is the granting of the motion to dismiss.

The award of costs and attorneys’ fees pursuant to this section shall be

stayed until a final decision which is not subject to appeal is rendered.7

Due to an absence of findings about Mr. Rayburn’s status under Tenn. Code Ann. § 29-

20-113(a) and the dictates of Tenn. Code Ann. § 20-12-119(c)(3), we remand this matter

to the trial court for a determination of the amount of attorney’s fees, if any, to be

awarded.

Mr. Rayburn next argues he is entitled to attorney’s fees for defending against a

meritless claim for sanctions. Mr. Rayburn contends that Mr. Loftis, in asking that Mr.

Rayburn be sanctioned for characterizing Mr. Loftis’s attorney’s response to the trial

court judge’s question about the meaning of “they” in the newspaper article as a judicial

admission, should have filed a motion pursuant to Tenn. R. Civ. P. 11.03, which he did

not do.8 However, Mr. Rayburn cites no authority in support of his request for an award

of attorney’s fees for defending against Mr. Loftis’s claim for sanctions, and we are

aware of no authority entitling him to such fees.

7

We note that Tenn. Code Ann. § 20-12-119(c)(5) expressly states that subsection (c) “shall not apply to:

(A) Actions by or against the state, other governmental entities, or public officials acting in their official

capacity or under color of law. . . .”

8

The relevant portion of this rule provides:

(a) By Motion. A motion for sanctions under this rule shall be made separately from other

motions or requests and shall describe the specific conduct alleged to violate subdivision

11.02. It shall be served as provided in Rule 5, but shall not be filed with or presented to

the court unless, within 21 days after service of the motion (or such other period as the

court may prescribe), the challenged paper, claim, defense, contention, allegation, or

denial is not withdrawn or appropriately corrected. If warranted, the court may award to

the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in

presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be

held jointly responsible for violations committed by its partners, associates, and

employees.

- 17 -

Mr. Rayburn’s final argument is that Mr. Loftis’s appeal was frivolous and that he

is entitled to an award of damages for having to defend a frivolous appeal. Mr. Rayburn

relies on Tenn. Code Ann. § 27-1-122 for this argument, which provides:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the

appeal.

Any award under this statute “rests in the appellate court’s sound discretion,” which “is

exercised ‘sparingly so as not to discourage legitimate appeals.’” Eberbach v. Eberbach,

535 S.W.3d 467, 475 (Tenn. 2017) (quoting Whalum v. Marshall, 224 S.W.3d 169, 181

(Tenn. Ct. App. 2006)). We decline to find that Mr. Loftis’s appeal was frivolous and

deny Mr. Rayburn’s request for fees pursuant to this statute.

III. CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment dismissing Mr.

Loftis’s amended complaint. The issue of attorney’s fees is remanded to the trial court.

The costs of this appeal are taxed against the appellant, Thomas Nathan Loftis, Sr., for

which execution shall issue if necessary.

________________________________

ANDY D. BENNETT, JUDGE

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