Petition for Writ of Certiorari — Angela Kay Plese, Petitioner v. Ronald Austin, et al.
Supreme Court briefJan 5, 2026
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No. 25-_________
In the
Supreme Court of the United States
_________________________
ANGELA KAY PLESE,
Petitioner,
V.
RONALD AUSTIN AND LINDA AUSTIN,
Respondents.
_________________________
On Petition for a Writ of Certiorari to the
Tennessee Supreme Court
_________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________
DANIEL A. HORWITZ
SARAH L. MARTIN
Horwitz Law, PLLC
4016 Westlawn Dr.
Nashville, TN 37209
JOHN BURSCH
Counsel of Record
Bursch Law PLLC
9339 Cherry Valley
Ave. SE, #78
Caledonia, MI 49316
(616) 450-4235
jbursch@burschlaw.com
i
QUESTION PRESENTED
Whether the First Amendment allows a plaintiff
who suffers no reputational harm to recover for
defamation.
ii
RELATED PROCEEDINGS
Tennessee Supreme Court: Austin v. Plese, No.
E2024-00586-SC-Rll-CV (Aug. 7, 2025)
Tennessee Court of Appeals: Austin v. Plese, No.
E2024-00586-COA-R3-CV (Mar. 11, 2025)
Tennessee Circuit Court, Knox County,
Tennessee: Austin v. Plese, No. 3-198-20 (Mar. 22,
2024)
iii
TABLE OF CONTENTS
QUESTION PRESENTED .............................................. i
RELATED PROCEEDINGS ...................................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ...................................... v
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED ..... 1
INTRODUCTION ...................................................... 2
STATEMENT ............................................................. 3
I.
A conflict among neighbors ................................. 3
II. Relevant proceedings below ................................ 6
REASONS FOR GRANTING THE WRIT................. 8
I.
State appellate courts are hopelessly divided
over whether the First Amendment allows a
plaintiff who suffers no reputational harm to
recover for defamation. ...................................... 10
II. Federal courts are split over whether a plaintiff
who cannot show reputational harm may
maintain a defamation claim. ........................... 16
III. The decision below is wrong. ............................. 18
IV. This case presents an important question and is
an ideal vehicle to resolve it. ............................. 24
CONCLUSION ......................................................... 26
iv
PETITION APPENDIX
A. Court of Appeals of Tennessee
Case No. E2024-00586-COA-R3-CV
Opinion
Issued March 11, 2025 ................................. 1a
B. Circuit Court for Knox County, Tennessee
Case No. 3-198-20
Final Order
Issued March 22, 2024 ................................ 40a
C. Supreme Court of Tennessee
Case No. E2024-00586-COA-R3-CV
Order Denying Leave to Appeal
Issued August 7, 2025 ................................. 59a
v
TABLE OF AUTHORITIES
Cases
Am. Transmission, Inc. v. Channel 7 of Detroit, Inc.,
609 N.W.2d 607 (Mich. Ct. App. 2000) .............13
Ashcroft v. Mt. Sinai Med. Ctr.,
588 N.E.2d 280 (Ohio Ct. App. 1990) .................13
Balla v. Hall,
273 Cal. Rptr. 3d 695 (Cal. Ct. App. 2021) ........11
Barrows v. Wareham Fire Dist.,
976 N.E.2d 830 (Mass. Ct. App. 2012) ...............12
Benanti v. Satterfield, No. E2018-01848-COA-R3-CV,
2020 WL 1491374 (Tenn. Ct. App.
Mar. 27, 2020) .....................................................17
Blevins v. W.F. Barnes Corp.,
768 So. 2d 386 (Ala. Civ. App. 1999) ..................11
Bolduc v. Bailey,
586 F. Supp. 896 (D. Colo. 1984) ........................11
Brennan v. Kadner,
814 N.E.2d 951 (Ill. 2004)...................................12
Brooks v. Am. Broad. Cos.,
932 F.2d 495 (6th Cir. 1991) ..............................17
Burns v. Davis,
993 P.2d 1119 (Az. Ct. App. 1999) .....................11
Cardillo v. Doubleday & Co., Inc.,
518 F.2d 638 (2d Cir. 1975) ................................16
Cohen v. Meyers,
167 A.3d 1157 (Conn. Ct. App. 2017) .................11
Counterman v. Colorado,
600 U.S. 66 (2023).........................................10, 20
vi
Cox v. Hatch,
761 P.2d 556 (Utah 1988) ...................................14
Foreman v. Miss. Publishers Corp.,
14 So. 2d 344 (Miss. 1943) ..................................13
France v. St. Clare’s Hosp. & Health Ctr.,
82 A.D.2d 1 (N.Y. 1981) ......................................13
Freeman v. Cooper,
390 So. 2d 1355 (La. Ct. App. 1980) ...................10
Gannett Co. v. Kanaga,
750 A.2d 1174 (Del. 2000) ..................................11
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974)............................. 9–15, 18–22
Gobin v. Globe Publ’g Co.,
649 P.2d 1239 (Kan. 1982) .......................8, 10–12
Guccione v. Hustler Mag., Inc.,
800 F.2d 298 (2d Cir. 1986) ................................16
Hearst Corp. v. Hughes,
466 A.2d 486 (Md. 1983) .....................................10
Irish v. Hall,
416 P.3d 975 (Idaho 2018) ..................................12
Keisel v. Westbrook,
542 P.3d 536 (Utah Ct. App. 2023) ....................15
Lavergne v. Dateline NBC,
597 F. App’x 762 (5th Cir. 2015) ........................16
Leyendecker & Assocs. v. Wechter,
683 S.W.2d 369 (Tex. 1984) ................................14
Liberty Lobby, Inc. v. Anderson,
746 F.2d 1563 (D.C. Cir. 1984) ...........................17
vii
Little Rock Newspapers, Inc. v. Dodtrill,
660 S.W.2d 933 (Ark. 1983) .......... 9, 11, 14–15, 21
Jenkins v. Liberty Newspapers Ltd. P’ship,
971 P.2d 1089 (Haw. 1999) .................................12
Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098 (Fla. 2008) ................................11
Joseph v. Scranton Times L.P.,
129 A.3d 404 (Pa. 2015) ...................... 8, 14–15, 22
Kenney v. Wal-Mart Stores, Inc.,
100 S.W.3d 809 (Mo. 2003) .................................13
Miami Herald Publ’g Co. v. Ane,
458 So. 2d 239 (Fla. 1984) ............................10, 15
Monitor Patriot Co. v. Roy,
401 U.S. 265 (1971).............................................10
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964).............................................18
Parrish v. Allison,
656 S.E.2d 382 (S.C. Ct. App. 2007) ..................14
Ray v. Time, Inc.,
452 F. Supp. 618 (W.D. Tenn. 1976) ..................16
Richie v. Paramount Pictures Corp.,
544 N.W.2d 21 (Minn. 1996) ..........................8, 13
Rosenbloom v. Metromedia, Inc.,
403 U.S. 29 (1971)...............................................18
Schlegel v. Ottumwa Courier, a Div. of
Lee Enters., Inc.,
585 N.W.2d 217 (Iowa 1998) .............. 8, 12, 15, 21
Shirley v. Freunscht,
735 P.2d 600 (Or. 1987) ......................................14
viii
Siercke v. Siercke,
476 P.3d 376 (Idaho 2020) ..................................12
Simmons Ford, Inc. v. Consumers Union of U.S., Inc.,
516 F. Supp. 742 (S.D.N.Y. 1981) ......................16
SIRQ, Inc. v. Layton Cost.,
379 P.3d 1237 (Utah 2016) .................................24
Smith v. Durden,
276 P.3d 943 (N.M. 2012) ................... 8, 13, 15, 21
Time, Inc. v. Firestone,
424 U.S. 448 (1976)................................. 13, 19–25
Toler v. Sud-Chemie, Inc.,
458 S.W.3d 276 (Ky. 2014) .................................12
West v. Media General Convergence, Inc.,
53 S.W.3d 640 (Tenn. 2001) ...............................24
Wynberg v. Nat’l Enquirer, Inc.,
564 F. Supp. 924 (C.D. Cal. 1982) ......................16
Zeran v. Diamond Broad., Inc.,
203 F.3d 714 (10th Cir. 2000) ............................14
Other Authorities
Earl L. Kellett, Annotation, Proof of Injury to
Reputation as Prerequisite to Recovery of Damages in
Defamation Action–Post Gertz Cases,
36 A.L.R.4th 807, § 2[b] (1985) ..........................13
1
OPINIONS BELOW
The opinion of the Tennessee Court of Appeals is
not published but is available at 2025 WL 763752,
and is reprinted at App.1a. The opinion of the Tennessee Circuit Court is not published but is reprinted at
App.41a. The order of the Supreme Court of Tennessee denying leave to appeal is reprinted at App.60a.
JURISDICTION
The Tennessee Court of Appeals entered its
judgment on March 11, 2025, and the Supreme Court
of Tennessee denied leave to appeal on August 7,
2025. On October 23, 2025, Justice Kavanaugh
extended the filing deadline for this petition to
January 4, 2026. This Court has jurisdiction under 28
U.S.C. 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The First Amendment provides, in relevant part:
Congress shall make no law … abridging the
freedom of speech.
2
INTRODUCTION
In 2019 and 2020, Petitioner Angela Kay Plese
and her neighbors, Respondents Linda and Ronald
Austin, got into a protracted dispute. Frustrated by
their relationship, and angered by Mr. Austin calling
her “white trash,” Ms. Plese started looking for dirt
online and found it: Ms. Austin had pled guilty in
Texas to a charge of deadly conduct. Ms. Plese publicized at a homeowners association meeting and on
her Facebook page that Ms. Austin was arrested for
deadly conduct with a gun and pled guilty.
Ms. Plese was right about the charge and a plea.
But Ms. Plese—a non-lawyer—was wrong about the
gun. A Texas lawyer would have informed her that
deadly conduct with a gun is a felony. But Ms. Austin
pled to a misdemeanor. Her crime was being involved
in an accident while driving under the influence.
Upset by Ms. Plese’s speech, the Austins sued for
defamation, and a Tennessee trial court awarded a
six-figure judgment. The Tennessee Court of Appeals
upheld most of the award but vacated the portion for
reputational damage as “unsupported by evidence.”
App.39a. In nearly every jurisdiction except Tennessee, that would have been the end of the matter,
because proof of reputational harm is an indispensable element of a defamation claim. But not here.
This Court should hold that the First Amendment
requires proof of reputational harm for a defamation
recovery. Such a holding creates First Amendment
breathing room and would reduce the frequency of
defamation claims filed based on hurt feelings or
attempts to censor. It would also resolve substantial
lower-court conflicts. Certiorari is warranted.
3
STATEMENT
I.
A conflict among neighbors
Petitioner Angela Kay Plese and Respondents
Ronald and Linda Austin were once cul-de-sac
neighbors in Lakecove subdivision in Knox County,
Tennessee. App.42a, 50a. Ms. Plese and her family
have lived in Lakecove since 2008, when they were
the only residents. App.50a. The Austins moved into
an adjacent house in 2016 and purchased the vacant
lot between their home and Ms. Plese’s home one year
later. App.42a. The Austins have a driveway on both
lots exiting into the cul de sac. App.42a.
Initially, the parties had a good relationship. App.
50a. Ms. Plese chatted with Ms. Austin, and when Mr.
Austin was out of town, Mses. Plese and Austin
visited each other and took kayak trips together. Ibid.
Ms. Plese was aware that Mrs. Austin struggled with
stress and anxiety; at one point, Ms. Plese became so
concerned that she contacted a friend to keep an eye
on Mrs. Austin in case she was suicidal. App.52a.
The parties’ friendship began to sour when the
Austins installed a fence on their property; it quickly
“became a source of contention between” them.
App.42a. On one occasion, Ms. Plese removed survey
stakes from the vacant lot. App.49a. But the primary
source of tension grew out of the Austins’ decision to
block part of the cul de sac by placing orange traffic
cones in front of the vacant lot’s driveway. Ibid. This
included a dispute where Mr. Austin prevented
workmen from parking in the cul de sac “and was
cursing the workers.” App. 51a.
4
Things came to a head during “the boat incident.”
App.51a. Someone was having trouble backing a trailer with a boat on it out of Ms. Plese’s driveway. Ibid.
To assist, Ms. Plese moved the orange traffic cones
that Mr. Austin had placed in the cul de sac. Ibid. Mr.
Austin came out of his house and called Ms. Plese
“white trash and cussed at her,” though there was no
physical assault. App.52a.
Unaware that the subdivision homeowners
association had given permission for the fence, Ms.
Plese requested a meeting with the association board
regarding the fences. App.50a. Before the meeting,
Ms. Plese conducted a background check on the
Austins. Ibid. Through the www.mvlife.com website,
she learned that Ms. Austin had a criminal record in
Red River County, Texas. Ibid. The website reported
that the offense was “Deadly Conduct,” the offense
level was a “misdemeanor,” and the disposition was
“sentenced.” Ibid.
The homeowners association conducted a grievance hearing concerning the fence’s location in
October 2019. App. 42a. At the hearing’s conclusion,
the association determined that the fence was
properly approved and located. Ibid. Responding to
comments at the hearing, Ms. Plese revealed to
association members that Ms. Austin had a criminal
record and showed them Ms. Austin’s mug shot. Ibid.
Ms. Austin was very upset and fled the meeting.
App.42a–43a.
5
Later, Ms. Plese looked up Texas’s deadly-conduct
statute. App.51a. She believed the statute showed
that Ms. Austin’s offense involved a gun, though she
“admitted that she is not a lawyer and did not consult
a lawyer for an interpretation of the statute.”
App.51a. As it turns out, deadly conduct “with a gun”
in Texas is a felony. Ibid. But Ms. Austin pled guilty
to a misdemeanor—based on driving while under the
influence and getting in an accident. App.46a, 51a.
The following June, Ms. Plese posted on her
personal Facebook page about her frustration over
the homeowners association blocking her Memorial
Day post on the Neighborhood Facebook page because
that post contained the words “God bless America.”
App.43a. That resulted in numerous comments on
Ms. Plese’s Facebook page to which she responded—
including about her dispute with the Austins.
App.43a–44a. Two of Ms. Plese’s comments are
relevant here:
[1] I [Angela Plese] finally did a background
check hoping I was just overreacting. The
criminal check revealed that Linda Austin
has a criminal record in Texas. They [Austins]
moved to Knoxville from Texas after she was
arrested for “Deadly Conduct” with use of
gun. I [Angela Plese] realized my instincts
were correct and I needed to protect myself
from the Austin family.
[2] Linda Austin pleaded guilty to the charges
of Deadly Conduct in Texas. This explained
my [Angela Plese] experience of being
attacked in the cul de sac by the Austin
family. [App.44a.]
6
Ms. Austin learned of Ms. Plese’s Facebook
comments from her husband, who had received notice
from a neighbor. App.46a. Ms. Austin responded
poorly. She had experienced a difficult childhood, with
an alcoholic father and a strained relationship with
her mother. App.45a. In her mid-30s, Ms. Austin was
diagnosed with depression, and she has taken
medication “for depression and/or anxiety since that
time.” Ibid. Ms. Plese’s comments triggered humiliation, isolation, and “memories of the trauma of the
DUI arrest.” App.46a.
Ms. Austin’s psychiatrist’s notes show nothing
regarding the October 2019 homeowners-association
meeting. App.45a–46a. But after the June 2020
Facebook comments, the psychiatrist reported that
Ms. Austin was experiencing “real physical fatigue
and sleep disruption because of” Ms. Plese’s actions.
App.47a–48a. His notes in July 2020 indicate that the
Austins “were taking legal action” against Ms. Plese.
App.48a. This litigation followed.
II. Relevant proceedings below
Following a bench trial in September 2023,
App.41a, the trial court entered a six-figure judgment
in favor of the Austins on the Austins’ claims for
defamation and false light, App.54a–55a, 59a. The
judgment included reimbursement for Ms. Austin’s
medical expenses, damages for her loss of reputation,
damages for the emotional distress she experienced
because of the Facebook comments, punitive damages, and damages for Mr. Austin’s loss of consortium.
App.58a–59a.
7
Regarding liability, the court found Ms. Plese’s
Facebook comment—“The criminal check revealed
that Linda Austin has a criminal record in Texas.
They moved to Knoxville from Texas after she was
arrested for Deadly Conduct with use of a gun”—“to
be defamatory and to place Linda Austin in false
light.” App.55a. As to the statement, “Linda Austin
pleaded guilty to the charge of Deadly Conduct in
Texas,” the trial court found it “was intended to paint
the Plaintiff Linda Austin in a false light” because Ms.
Plese “knew that Mrs. Austin was upset by the disclosure of her criminal charges to the HOA board.” Ibid.
The court of appeals mostly affirmed this judgment. App.1a–40a. Crucially, however, the court held
that “[t]he record contains no evidence of reputational
damage incurred by Ms. Austin.” App.35a. “[N]one of
the evidence goes toward her external standing in the
community—her reputation.” App.36a. Accordingly,
the court of appeals “vacate[d] that portion of the
Trial Court’s judgment granting Ms. Austin $20,000
in reputational damages as there is simply no evidence in the record to support it.” Ibid.; accord
App.39a.
In so holding, the court of appeals failed to recognize the First Amendment import of awarding damages for defamation and false light in the absence of
any evidence of damage to reputation. Ms. Plese
raised that issue in an application for permission to
appeal to the Tennessee Supreme Court, but that
court denied the application. App.60a.
8
REASONS FOR GRANTING THE WRIT
We live in litigious times, where celebrities, politicians, and next-door neighbors are quick to file suit
when they are offended, even when the victim of
unkind speech experiences merely faux offense. This
reality is especially apparent when a perceived enemy
says something critical or unkind. Lawsuits alleging
defamation and libel quickly follow.
To protect the right to speak freely, the First
Amendment has a role to play in these disputes.
While a minority of jurisdictions allows defamation
claims to go forward without a showing of damage to
reputation, that rule “has been soundly criticized” by
courts and scholars alike. Gobin v. Globe Publ’g Co.,
649 P.2d 1239, 1243 (Kan. 1982) (citation modified).
A substantial number of jurisdictions reject that rule
and require defamation plaintiffs to prove reputational harm as a prerequisite to recovering for any
other injury. E.g., Schlegel v. Ottumwa Courier, a Div.
of Lee Enters., Inc., 585 N.W.2d 217, 223–24 (Iowa
1998) (“we agree with those courts that have continued to impose a reputational harm prerequisite in
defamation actions”); Richie v. Paramount Pictures
Corp., 544 N.W.2d 21, 28 (Minn. 1996) (“[Defendants]
… argue that a showing of actual harm to reputation
should be required before a defamation action can be
sustained. We agree.”); Smith v. Durden, 276 P.3d
943, 949 (N.M. 2012) (“New Mexico is far from alone
in requiring reputational injury to be shown as a
prerequisite to recovery.”); Joseph v. Scranton Times
L.P., 129 A.3d 404, 430 (Pa. 2015) (“Pennsylvania is
not alone in requiring reputational injury as a prerequisite to a defamation plaintiff’s recovery of damages for mental and emotional injuries.”).
9
This deep split is not simply a matter of policy but
one animated by the same First Amendment principles that undergird this Court’s watershed decision
in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See
Little Rock Newspapers, Inc. v. Dodtrill, 660 S.W.2d
933, 936–37 (Ark. 1983) (“We can find no greater
substantiation after Gertz than before that would
permit recovery for a defamation action without the
element of reputational damage.”) As the Arkansas
Supreme Court explains it:
The spirit of the Gertz decision on this point is
clearly one to protect First Amendment rights
from unjustifiable and unsubstantiated intrusions. To allow recovery in a defamation
action where the primary element of the cause
of action is missing not only sets the law of
defamation on end, but also substantially
undercuts the impact Gertz seeks to effect.
The law of defamation has always attempted
to balance the tension between the individual’s right to protect his reputation and the
right of free speech. To totally change the
character of defamation to allow recovery
where there has been no loss of the former
right, would be an unjustified infringement
on the First Amendment. [Id. at 936–37.]
The decision below exacerbates a substantial split
in authority among lower courts on an important and
recurring constitutional question: “Whether the First
Amendment allows a plaintiff who suffers no reputational harm to recover for defamation.” The ruling
also implicates a federal-court split over whether
reputational harm is a prerequisite to a defamation
claim. Certiorari is warranted.
10
I.
State appellate courts are hopelessly
divided over whether the First Amendment
allows a plaintiff who suffers no reputational harm to recover for defamation.
Some jurisdictions have “permitted the recovery
of damages for mental anguish in a ‘defamation’
action, without a showing of damage to reputation.”
Gobin, 649 P.2d at 1243–44. But the rule applied in
those jurisdictions—which the court of appeals
applied here—“has been soundly criticized” by courts
and scholars alike. Ibid. And that rule conflicts with
how this Court has understood the tort of defamation:
“false statements of fact harming another’s reputation.” Counterman v. Colorado, 600 U.S. 66, 73 (2023)
(emphasis added); see also Monitor Patriot Co. v. Roy,
401 U.S. 265, 275 (1971) (“[D]amage to reputation is,
of course, the essence of libel.”).
The split of authority is substantial—and very
lopsided. In Tennessee’s camp are Florida, Louisiana,
and Maryland. See Miami Herald Publ’g Co. v. Ane,
458 So. 2d 239, 242 (Fla. 1984) (“Actual damage to
reputation is not required under Gertz, however, as
long as there is evidence of some actual injury, of
which injury to reputation is but one example.”)
(citation omitted); Freeman v. Cooper, 390 So. 2d
1355, 1360 (La. Ct. App. 1980) (“[M]ental suffering
alone, or only injured feelings which must inevitably
be inferred from libelous statements, can be made the
basis of a damage award.”); Hearst Corp. v. Hughes,
466 A.2d 486, 487–93 (Md. 1983) (“actual impairment
of reputation is not required to establish the tort.”).
That’s all.
11
In the opposite camp are Alabama, Arizona,
Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas,
Kentucky, Louisiana, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, New Mexico, New
York, Ohio, Oklahoma, Oregon, Pennsylvania, South
Carolina, Texas, and Utah. See Blevins v. W.F. Barnes
Corp., 768 So. 2d 386, 389 (Ala. Civ. App. 1999)
(where reputational harm is not established per se,
defamation requires “resulting damage to [a
plaintiff’s] reputation”) (cleaned up); Burns v. Davis,
993 P.2d 1119, 1129 (Az. Ct. App. 1999) (“If the jury
finds that a defamatory statement of objective fact
(beyond mere hyperbole) exists, it should then
‘consider actual damage to [the plaintiff’s] reputation
in the real world’”); Little Rock Newspapers, 660
S.W.2d at 936–37 (“We can find no greater
substantiation after Gertz than before that would
permit recovery for a defamation action without the
element of reputational damage.”); Balla v. Hall, 273
Cal. Rptr. 3d 695, 728 (Cal. Ct. App. 2021)
(defamation requires both falsity and injury to
reputation); Bolduc v. Bailey, 586 F. Supp. 896, 900–
01 (D. Colo. 1984) (“The gravamen of an action for
defamation is the damage to one’s reputation in the
community[.]” (quoting Gobin, 649 P.2d at 1243));
Cohen v. Meyers, 167 A.3d 1157, 1174 (Conn. Ct. App.
2017) (essential element of defamation is that “the
plaintiff’s reputation suffered injury as a result of the
statement.”) (cleaned up); Gannett Co. v. Kanaga, 750
A.2d 1174, 1184 (Del. 2000) (referencing unchallenged jury instructions that a defamation plaintiff
must prove “humiliation and loss of reputation”);
Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1109
12
(Fla. 2008) (a defamation plaintiff must prove injury
to his or her reputation in the community); Jenkins v.
Liberty Newspapers Ltd. P’ship, 971 P.2d 1089, 1103
(Haw. 1999) (defamation claim fails where a plaintiff
fails to prove that he “suffered any actual damage to
his reputation.”); Irish v. Hall, 416 P.3d 975, 980
(Idaho 2018) (“the tort of defamation is based on harm
to a person’s reputation in the community.” (citations
omitted)), abrogated on other grounds, Siercke v.
Siercke, 476 P.3d 376 (Idaho 2020); Brennan v.
Kadner, 814 N.E.2d 951, 956 (Ill. 2004) (defamation
“provides redress for false statements of fact that
harm reputation.”); Schlegel, 585 N.W.2d at 223–24
(“[W]e agree with those courts that have continued to
impose a reputational harm prerequisite in
defamation actions. . . . The presumption limitation in
Gertz was imposed to prevent the giving of ‘gratuitous
awards of money damages far in excess of any actual
injury[,]’” and “to allow defamation damages without
a showing of reputational harm would undercut the
Supreme Court’s purpose behind the presumption
limitation.”) (citation omitted); Gobin, 649 P.2d at
1243 (“[D]amage to one’s reputation is the essence
and gravamen of an action for defamation. Unless
injury to reputation is shown, plaintiff has not
established a valid claim for defamation, by either
libel or slander, under our law.”); Toler v. SudChemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014), as
corrected (Apr. 7, 2015) (defame means “‘to make a
false statement about someone to a third person in
such a way as to harm the reputation of the person
spoken of.’”); Barrows v. Wareham Fire Dist., 976
N.E.2d 830, 836 (Mass. Ct. App. 2012) (“[T]he
gravamen of the tort of defamation does not lie in the
13
nature or degree of the misconduct but in its outcome,
i.e., the injury to the reputation of the plaintiff. . . .
Defamation is essentially spoken or written words or
expressions that injure reputation.”); Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 609 N.W.2d
607, 611 (Mich. Ct. App. 2000) (“A defamatory
communication is one that tends to harm the
reputation of a person so as to lower him in the
estimation of the community or deter others from
associating or dealing with him.”); Richie, 544 N.W.2d
at 28 (Defendants “argue that a showing of actual
harm to reputation should be required before a
defamation action can be sustained. We agree.”);
Foreman v. Miss. Publishers Corp., 14 So. 2d 344, 347
(Miss. 1943) (defamation requires “the degrading of
reputation” for recovery); Kenney v. Wal-Mart Stores,
Inc., 100 S.W.3d 809, 813 (Mo. 2003) (“Missouri, as
well as several other states—including Arkansas,
Kansas, and New York—have adopted rules requiring
a plaintiff to prove reputational harm before allowing
recovery for other related injuries”); Durden, 276 P.3d
at 949 (“New Mexico is far from alone in requiring
reputational injury to be shown as a prerequisite to
recovery.” (citing Earl L. Kellett, Annotation, Proof of
Injury to Reputation as Prerequisite to Recovery of
Damages in Defamation Action–Post Gertz Cases, 36
A.L.R.4th 807, § 2[b] (1985) (noting that after the
issuance of Firestone “the various jurisdictions have
split into two camps on the question whether injury
to reputation must be shown”))); France v. St. Clare’s
Hosp. & Health Ctr., 82 A.D.2d 1, 5–6 (N.Y. 1981)
(“[D]amages are recoverable in a defamation action
only when concomitant with a loss of reputation.”);
Ashcroft v. Mt. Sinai Med. Ctr., 588 N.E.2d 280, 283
14
(Ohio Ct. App. 1990) (defamation requires “a false
publication causing injury to a person’s reputation”);
Zeran v. Diamond Broad., Inc., 203 F.3d 714, 719
(10th Cir. 2000) (“Plaintiff did not suffer an injury to
his reputation, which is the essence of an action for
defamation.” (citing Oklahoma law)); Shirley v.
Freunscht, 735 P.2d 600, 602 (Or. 1987) (“The
gravamen of the tort of defamation is the injury to the
plaintiff’s reputation.”); Scranton Times, 129 A.3d at
430 (“Pennsylvania is not alone in requiring
reputational injury as a prerequisite to a defamation
plaintiff’s recovery of damages for mental and
emotional injuries.”); Parrish v. Allison, 656 S.E.2d
382, 388 (S.C. Ct. App. 2007) (“tort of defamation
allows a plaintiff to recover for injury to his or her
reputation”); Leyendecker & Assocs. v. Wechter, 683
S.W.2d 369, 374 (Tex. 1984) (Where the “evidence
does not demonstrate injury to Mrs. Wechter’s
reputation[,]” “the court of appeals erred in awarding
Mrs. Wechter damages for mental anguish.”); Cox v.
Hatch, 761 P.2d 556, 561 (Utah 1988) (“The tort of
defamation protects only reputation.”).
Critically, the difference is not just one of state
policy. It is often a differing view of the First Amendment’s protection of allegedly defamatory speech.
Consider the Arkansas Supreme Court’s opinion in
Little Rock Newspapers. It analyzed Gertz—which
required proof of some actual injury before an award
of damages in a defamation per se action—and found
its stated purpose to be preventing “the giving of
‘gratuitous awards of money damages far in excess of
any actual injury.’” Little Rock Newspapers, 660
S.W.2d at 936 (quoting Gertz, 418 U.S. at 349). The
Arkansas Supreme Court concluded that this Court’s
15
point was “clearly one to protect First Amendment
rights from unjustifiable and unsubstantiated intrusions.” Ibid.
Continuing, the court said that “[t]o allow recovery in a defamation action where the primary element
of the cause of action [loss of reputation] is missing
not only sets the law of defamation on end, but also
substantially undercuts the impact Gertz seeks to
effect.” Ibid. “[T]o allow recovery when there has been
no loss of [reputation] would be an unjustified infringement on the First Amendment.” Ibid.
In sum, requiring proof of loss of reputation is
consistent with “protection of First Amendment
principles.” Ibid; accord, e.g., Schlegel, 585 N.W.2d at
223–24 (endorsing Little Rock’s First Amendment
analysis); Durden, 276 P.3d at 945 (same); Scranton
Times, 129 A.3d at 430 (“permitting the recovery of
damages for injuries such as mental anguish without
a showing of injury to reputation subverts the
intended ‘protective influence’ of Gertz’s actual injury
stricture”) (citation modified); see also Keisel v.
Westbrook, 542 P.3d 536, 556 (Utah Ct. App. 2023) (“A
plaintiff may not attempt an end-run around First
Amendment strictures protecting speech by instead
suing for defamation-type damages under nonreputational tort claims.”) (citation omitted).
It is not possible to reconcile these decisions with
cases like Miami Herald, where the Florida Supreme
Court attributed its rule not requiring damage to
reputation in a defamation action to this Court’s
decision in Gertz. Only this Court can bring national
uniformity to this area of the law.
16
II. Federal courts are split over whether a
plaintiff who cannot show reputational
harm may maintain a defamation claim.
Relying on the “libel-proof plaintiff doctrine[,]”
several federal courts also hold—as a matter of
federal constitutional law—that some plaintiffs “have
so bad a reputation that they are not entitled to obtain
redress for defamatory statements[.]” Guccione v.
Hustler Mag., Inc., 800 F.2d 298, 303 (2d Cir. 1986)
(citing Cardillo v. Doubleday & Co., Inc., 518 F.2d
638, 639–40 (2d Cir. 1975)); see also, e.g., Lavergne v.
Dateline NBC, 597 F. App’x 760, 762 (5th Cir. 2015)
(“The MJ then recommended that Lavergne’s defamation claims under state law be dismissed because they
were not actionable as a matter of law under the ‘libelproof plaintiff doctrine.’ … The district judge adopted
the report and recommendation of the MJ and
dismissed Lavergne’s claims with prejudice. … [W]e
AFFIRM the district court’s judgment and adopt its
analysis in full.”) (citations omitted)); Ray v. Time,
Inc., 452 F. Supp. 618, 622 (W.D. Tenn. 1976) (“The
Court is persuaded, in the light of all the circumstances in this cause and in the public record involved
in the other cases mentioned, that plaintiff, James E.
Ray, is libel-proof[.]”), aff’d, 582 F.2d 1280 (6th Cir.
1978); Wynberg v. Nat’l Enquirer, Inc., 564 F. Supp.
924, 927 (C.D. Cal. 1982) (“Wynberg’s past conduct
and criminal convictions establish a bad reputation
which, for purposes of this case, render him ‘libel
proof’ as a matter of law.”); Simmons Ford, Inc. v.
Consumers Union of U.S., Inc., 516 F. Supp. 742, 750–
51 (S.D.N.Y. 1981).
17
There is a longstanding and acknowledged circuit
split over whether the libel-proof plaintiff doctrine is
a valid federal constitutional requirement, however.
See Brooks v. Am. Broad. Cos., 932 F.2d 495, 501 (6th
Cir. 1991) (“In contrast to the Second Circuit, the
District of Columbia Circuit has rejected libel-proof
notions: ‘Because we think it [libel-proof theory] a
fundamentally bad idea, we are not prepared to
assume that it is the law of the District of Columbia;
nor is it part of federal constitutional law.’” (quoting
Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1569
(D.C. Cir. 1984) (Scalia, J.), vacated on other grounds,
477 U.S. 242 (1986))).
The libel-proof plaintiff doctrine inherently recognizes that—whatever other damages a plaintiff may
demand or prove—a defamation claim cannot prevail
without proof of reputational injury. E.g., Benanti v.
Satterfield, No. E2018-01848-COA-R3-CV, 2020 WL
1491374, at *4 (Tenn. Ct. App. Mar. 27, 2020). “[L]ibelproof plaintiffs” cannot maintain defamation claims
because they “by definition suffer minimal (if any)
injury to reputation[.]”) Ibid. (cleaned up). Thus, if the
doctrine—the validity of which federal courts dispute—
is correct as a matter of federal constitutional law, then
reputational injury must be a prerequisite to lawful
defamation liability. Only this Court can resolve the
split of federal authority on the matter.
18
III. The decision below is wrong.
This Court should also review the decision below
because it’s wrong. Absent reputational harm, the
First Amendment prohibits recovery for defamation.
Start with Gertz. There, an attorney sued a
magazine publisher for libel that an Illinois federal
district court found to be libelous per se. After a jury
awarded the lawyer $50,000, the district court
entered judgment for the publisher anyway, believing
that such a result was compelled by an extension of
the “actual malice” requirement in New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), to any public
issue, even if the plaintiff was not a public official or
public figure. The Seventh Circuit affirmed in
reliance on this Court’s intervening decision in
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
This Court reversed. It began with the proposition
that the “legitimate state interest” in compensating
those harmed by defamation must be balanced
against the First Amendment freedoms of speech and
press. Gertz, 418 U.S. at 339–42. Extending the New
York Times rule to private persons would abridge the
state’s legitimate interest. Id. at 342–46.
At the same time, the Court held that the First
Amendment limited a state’s interest in compensating a defamation plaintiff to damages for actual
injury. Id. at 349–50. The Court did not try to define
“actual injury” but left that job to lower courts in the
first instance. Id. at 350. But it made clear that
punitive damages were strictly off limits, since they
bear “no necessary relation to the actual harm
caused[,]” and they exacerbate the danger of selfcensorship. Ibid.
19
Because the Gertz jury was allowed to presume
damages without proof of injury, the Court reversed
and remanded for a new trial. Id. at 352.
Shortly thereafter, the Court was asked to apply
Gertz to a situation like the one presented here—
where the plaintiff had no proof of damages to
reputation. Time, Inc. v. Firestone, 424 U.S. 448, 460
(1976). Yet the Court held that the plaintiff was “not
prevented from obtaining compensation for such
other damages that a defamatory falsehood may have
caused her.” Ibid. For the time being, that left the
question to individual states.
Justice Brennan sharply dissented. “[T]o avoid
the self-censorship that would necessarily accompany
strict or simple fault liability for erroneous statements,” he countered, “rules governing liability for
injury to reputation are required to allow an adequate
margin for error protecting some misstatements so
that the freedoms of expression have the breathing
space that they need to survive.” Id. at 472 (Brennan,
J., dissenting) (cleaned up). “To insure the ascertainment and publication of the truth about public affairs,
it is essential that the First Amendment protect some
erroneous publications as well as true ones.” Ibid.
(cleaned up). To allow defamation damages absent
proof of reputational harm is “to invite ‘gratuitous
awards of money damages far in excess of any actual
injury’ and jury punishment of ‘unpopular opinion
rather than (compensation to) individuals for injury
sustained by the publication of a false act.” Id. at 475
n.3 (quoting Gertz, 418 U.S. at 349).
20
Time and state-court opinions have vindicated
Justice Brennan’s dissent. The result in Firestone
conflicts with the core purposes of the First Amendment and fundamental principles of Article III standing and damages law. State courts have recognized
that reality. Accordingly, Firestone should be overruled or confined to its facts.
1. At common law and under most modern, statelaw decisions, defamation claims are premised on
injury to reputation, i.e., harm to the plaintiff’s
standing in the community. See Counterman, 600
U.S. at 73 (describing defamation as an exception to
First Amendment restrictions, defined as “false
statements of fact harming another’s reputation”
(citing Gertz, 418 U.S. at 340, 342)). When no such
harm is proven, liability rests not on reputational
damage but on offense, embarrassment, or disagreement with speech. Punishing speech on those bases is
inconsistent with the First Amendment.
Outside of Firestone, this Court has repeatedly
recognized that the Constitution does not allow freewheeling damage awards without proof of reputational harm. Indeed, in Gertz, the Court rejected
presumed damages absent actual malice precisely
because such awards chill speech without serving a
legitimate compensatory purpose. Firestone undermines that principle by allowing plaintiffs to avoid
heightened fault standards even when they cannot
demonstrate reputational loss.
2. Allowing defamation recovery without proof of
reputational harm also raises serious structural
concerns.
21
First, a plaintiff who cannot show reputational
injury lacks the kind of concrete, particularized harm
necessary to justify judicial relief. While emotional
distress may be compensable in some contexts, it
cannot serve as a proxy for reputational damage
without collapsing defamation into an all-purpose tort
for offensive speech.
Second, damages untethered from actual injury
create an unacceptable risk of arbitrary or punitive
awards, particularly against media defendants. This
danger is magnified where fault standards are
relaxed, as Firestone permits.
3. As a result, state courts have been critical of the
constitutional result in Firestone. For instance, in
rejecting the Firestone majority’s logic, the New
Mexico Supreme Court echoed Justice Brennan’s
dissent: “allowing recovery for injuries such as mental
anguish before a showing of injury to reputation
subverts the intended ‘protective influence’ of the
actual injury stricture.” Durden, 276 P.3d at 949
(quoting Firestone, 424 U.S. at 475 n.3 (Brennan, J.,
dissenting)). “If the tort of defamation is to retain its
identity at all, proof of actual injury to reputation
would seem to be a prerequisite to any award of outof-pocket loss, and it seems more logical to require
proof in that order, not in the reverse.” Ibid. (citation
modified). Accord Schlegel, 585 N.W.2d at 223
(recognizing Firestone but agreeing with Little Rock’s
reliance on Gertz that the “presumption limitation in
Gertz was imposed to prevent the giving of ‘gratuitous
awards of money damages far in excess of any actual
injury.’” (quoting Gertz, 418 U.S. at 349)).
22
Similarly, in Scranton Times, the Pennsylvania
Supreme Court followed Justice Brennan’s Firestone
dissent rather than the majority’s opinion: “[A]s Justice Brennan articulated in his dissent in Firestone,
permitting the recovery of damages for injuries such
as mental anguish without a showing of injury to
reputation subverts the intended ‘protective influence’ of Gertz’s actual injury stricture.” 129 A.3d at
430 (quoting Firestone, 424 U.S. at 475 n.3 (Brennan,
J., dissenting)).
4. This Court should correct Firestone and either
(a) overturn it, or (b) require defamation plaintiffs
who cannot prove reputational harm to satisfy the
actual malice standard, even if they are nominally
private figures. Either approach would realign defamation doctrine with its constitutional foundations,
preserve meaningful protection for speech on matters
of public interest, and prevent the imposition of
liability where no real-world reputational injury
exists.
***
Firestone rests on a cramped view of the First
Amendment and enables constitutionally suspect
defamation claims untethered from reputational
harm. In cases where a plaintiff cannot demonstrate
actual injury to reputation, the decision allows
punishment of protected speech without sufficient
justification. For that reason, Firestone should be
overruled or limited to ensure that defamation law
remains a remedy for real reputational injury—not a
vehicle for suppressing speech.
23
It is easy to see how the Firestone standard can be
abused, and how limiting it could protect free speech.
Say a parody news website posted a story—with
actual malice—about President Joe Biden:
Assume further that the story is completely false. The
parody news website published the piece merely to
draw political attention to the President’s forgetfulness. If President Biden sued for defamation, the
website would be able to defend on the ground that its
“news story” was mere parody. But if the President
and his legal advisors knew the lawsuit would go
nowhere unless he could prove reputational harm, it
is less likely he would file it in the first instance.
The same would be true in every case. Celebrities,
politicians—and yes, even neighbors—would be less
likely to bring defamation actions if there was a proofof-reputational-harm barrier. That would create substantially more breathing room for free speech.
24
IV. This case presents an important question
and is an ideal vehicle to resolve it.
The underlying dispute here is a disagreement
between neighbors. But its constitutional implications are far greater. What’s more, this is an ideal
vehicle to answer the question presented.
To begin, this appeal is from a final judgment
following a bench trial. Ms. Plese accepts the facts the
trial court found, and the record is clean.
Second, the issue is cleanly presented. The Tennessee Court of Appeals vacated “that portion of the
Trial Court’s judgment awarding Ms. Austin $20,000
for reputational damage as it is unsupported by evidence.” App.39a. Yet the court of appeals affirmed the
trial court’s judgment of $75,100 for other types of
damages based on defamation.1 There is nothing in
the proceedings below that could provide a barrier to
this Court’s resolution of the question presented.
1 Ms. Austin also brought a false-light claim. But the trial court’s
judgment only attributed her damages to her defamation claim,
App.56a–59a, and did not address what damages (if any) are due
to the false-light claim. In addition, Ms. Austin’s consortiumbased damages award is not allowed under a false-light theory.
See, e.g., West v. Media General Convergence, Inc., 53 S.W.3d
640, 648 (Tenn. 2001) (“[T]he right to privacy is a personal right”
and may not “be asserted by a member of the individual’s
family[.] . . . Therefore, only those persons who have been placed
in a false light may recover for invasion of their privacy.”). So if
this Court reverses Mrs. Austin’s defamation judgment, it will
also be necessary—at minimum—to vacate the trial court’s
entire damages award with instructions to enter a new one.
Finally, “false light claims that arise from defamatory speech
raise the same First Amendment concerns as are implicated by
defamation claims.” SIRQ, Inc. v. Layton Cost., 379 P.3d 1237,
1246 (Utah 2016).
25
Finally, the Court should act now because the
Firestone rule undermines—rather than protects—
the First Amendment’s core purposes. The central
constitutional justification for defamation law is the
protection of reputation, not the punishment of
speech qua speech. When a plaintiff cannot demonstrate her reputation was actually harmed, the
imposition of damages becomes untethered from that
legitimate state interest. Allowing recovery without
proof of reputational injury transforms defamation
from a compensatory tort into a speech-penalizing
regime that leads to censorship and chilled speech, as
speakers must fear litigation costs and potential
liability disconnected from reputational harm. Conditioning recovery on proof of such harm provides a
clear, objective limiting principle that protects speech
without immunizing falsehoods that genuinely harm
reputations.
Firestone also encourages speculative and subjective claims that strain judicial resources and distort
jury decision-making. Without a requirement of
reputational harm, juries are left to award damages
based on emotional reaction or moral disapproval of
speech—precisely the dangers the First Amendment
is designed to prevent. A proof-of-reputational-harm
requirement disciplines both pleadings and proof and
serves as a necessary safeguard against viewpoint
discrimination and retaliation through litigation.
Finally, limiting Firestone on this point would
bring doctrinal coherence to modern defamation law.
A clear rule requiring proof of reputational injury
before damages are awarded better balances the
breathing space the First Amendment requires.
26
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
DANIEL A. HORWITZ
SARAH L. MARTIN
Horwitz Law, PLLC
4016 Westlawn Dr.
Nashville, TN 37209
JANUARY 2026
JOHN BURSCH
Counsel of Record
Bursch Law PLLC
9339 Cherry Valley
Ave. SE, #78
Caledonia, MI 49316
(616) 450-4235
jbursch@burschlaw.com
APPENDIX
APPENDIX
Table of Contents
A. Court of Appeals of Tennessee
Case No. E2024-00586-COA-R3-CV
Opinion
Issued March 11, 2025 ................................. 1a
B. Circuit Court for Knox County, Tennessee
Case No. 3-198-20
Final Order
Issued March 22, 2024 ................................ 41a
C. Supreme Court of Tennessee
Case No. E2024-00586-COA-R3-CV
Order Denying Leave to Appeal
Issued August 7, 2025 ................................. 60a
1a
APPENDIX A
FILED
3/11/2025
Clerk of the
Appellate Courts
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 15, 2025 Session
RONALD AUSTIN, ET AL. V. ANGELA KAY
PLESE
Appeal from the Circuit Court for Knox County
No. 3-198-20 Deborah C. Stevens, Judge
___________________________
No. E2024-00586-COA-R3-CV
___________________________
This appeal arises from a lawsuit over defamation
and false light invasion of privacy. Ronald Austin and
Linda Austin (“Mr.” and “Ms. Austin,” respectively)
(“Plaintiffs,” collectively) were neighbors of Angela
Kay Plese (“Defendant”). Plaintiffs and Defendant did
not get along. At one point, Defendant posted certain
statements on Facebook about Ms. Austin, including
that Ms. Austin had been convicted in Texas of deadly
conduct with a gun. While Ms. Austin had pled guilty
many years earlier to a Texas statute called “deadly
conduct,” this was in the context of her reaching a better deal in a DUI case. Ms. Austin’s matter did not
involve a gun. Plaintiffs sued Defendant for defama-
2a
tion and false light in the Circuit Court for Knox
County (“the Trial Court”). After a trial, the Trial
Court found in favor of Plaintiffs, awarding $95,100
in total damages for Ms. Austin’s medical expenses,
damage to reputation, emotional distress, punitive
damages, as well as Mr. Austin’s loss of consortium.1
Defendant appeals. We vacate that portion of the
Trial Court’s award concerning damage to Ms. Austin’s reputation since the record contains no evidence
of such damage. Therefore, we modify the judgment
to $75,100. Otherwise, we affirm.
Tenn R. App. P. 3 Appeal as of Right;
Judgment of the Circuit Court Affirmed as
Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the
court, in which JOHN W. MCCLARTY and KRISTI M. DAVIS, JJ., joined.
Nathaniel Evans, Knoxville, Tennessee, for the appellant, Angela Kay Plese.
Grant E. Mitchell, Knoxville, Tennessee, for the appellees, Ronald Austin and Linda Austin.
Jonathan Skrmetti, Attorney General and Reporter;
J. Matthew Rice, Solicitor General; and Heather C.
Ross, Senior Assistant Attorney General, for the appellee, the State of Tennessee.
The Trial Court appears to have made a mathematical error
and stated the total damages as $101,000.
1
3a
OPINION
Background
Plaintiffs and Defendant were once neighbors in
Knox County. Tensions arose between them when
Plaintiffs built a fence on their property and put up
orange traffic cones in front of their house. Defendant
opposed these measures, and bitter exchanges followed. At an October 2019 homeowners’ association
meeting concerning the fence at issue, Defendant displayed Ms. Austin’s mugshot from an old arrest in
Texas. Ms. Austin was deeply distressed by this. On
June 1, 2020, Defendant posted certain statements
about Plaintiffs, and Ms. Austin in particular, on her
Facebook page. The relevant statements are as follows:
When servicemen or guest parked in that area
they would often get cussed out by Ron [Austin].
I finally did a background check hoping I was
just overreacting. The criminal check revealed that Linda Austin has a criminal record in Texas. [Plaintiffs] moved to Knoxville
from Texas after she was arrested for “Deadly
Conduct” with use of gun. I realized my instincts were correct and I needed to protect
myself from the Austin family.
Linda Austin pleaded guilty to the charges of
Deadly Conduct in Texas. This explained my
experience of being attacked in the cul de sac
by the Austin family.
As Defendant now acknowledges, her statement
that Ms. Austin had been arrested for a gun-related
4a
offense was false. In truth, Ms. Austin had been
charged with a DUI in Texas some 15 years before.
For insurance purposes, Ms. Austin pled guilty to a
misdemeanor under a Texas statute called “Deadly
Conduct.”2 Although the Texas statute contemplates
some offenses in which a firearm is used, Ms. Austin’s
offense did not involve a firearm. On June 4, 2020,
Plaintiffs sent Defendant a cease-and-desist letter
through counsel demanding an apology and retraction. Defendant declined to apologize or retract at
that time. Defendant would offer to retract only
around a year later.
In June 2020, Plaintiffs sued Defendant for defamation and false light invasion of privacy. Plaintiffs
also sought punitive damages. In December 2020,
Plaintiffs filed an amended complaint, narrowing the
statements sued upon. Defendant answered in opposition. Defendant did not request a jury trial, nor did
2
The Texas statute, TEX. PENAL CODE § 22.05, provides:
§ 22.05. Deadly Conduct
(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily
injury.
(b) A person commits an offense if he knowingly discharges a
firearm at or in the direction of:
(1) one or more individuals; or
(2) a habitation, building, or vehicle and is reckless as to whether
the habitation, building, or vehicle is occupied.
(c) Recklessness and danger are presumed if the actor knowingly
pointed a firearm at or in the direction of another whether or not
the actor believed the firearm to be loaded.
(d) For purposes of this section, “building,” “habitation,” and “vehicle” have the meanings assigned those terms by Section 30.01.
(e) An offense under Subsection (a) is a Class A misdemeanor.
An offense under Subsection (b) is a felony of the third degree.
5a
she request bifurcation of the proceedings for punitive
damages. In September 2023, the Trial Court conducted a bench trial. Plaintiffs and Defendant testified. Ms. Austin’s psychiatrist, Dr. Allen Rigell (“Dr.
Rigell”), testified also.
Ms. Austin testified first. Ms. Austin had previously sought mental health treatment before the underlying events of this case. According to Ms. Austin,
her DUI incident was “the biggest mistake” of her life.
Ms. Austin said that her criminal record in Texas was
subject to an “order of nondisclosure,” and she had not
expected to hear about it again. Shortly after Defendant posted her statements on Facebook, Mr. Austin
showed Ms. Austin the statements on his phone,
where one of the neighbors had forwarded it. Ms. Austin testified to her reaction to the statements:
Q. And so being portrayed that way and having those statements made that you say are
false, how did that impact your family?
A. It devastated my family. We -- we were humiliated. We were frightened of what -- you
know, if someone is thinking that I was arrested with a gun and was attacking one of my
neighbors. I knew that people must – might
appear to them as somebody to be fearful of.
It was just -- I don’t think I have words for
it. It was just an unbelievable situation where
we were -- just couldn’t make sense of it. We
could not make sense of it.
***
Q. You talked earlier about some of the hobbies or organizations you had in the
6a
community. How did this impact your involvement with those?
A. I had become very involved with my
women’s group Akima, which is a group that
does work in the area. Raises money for charities. I immediately felt like I needed to step
down so that I would not sully their good
name with this horrific, you know, lie going
around. I stopped seeing my friends. I stopped
keeping -- I stopped doing things I normally
did. I didn’t go to the food bank anymore. I
stopped seeing clients. I couldn’t leave the
house.
Q. What about your visits to Dr. Rigell and
Dr. Brown? How were those impacted by the
June 1, 2020, post?
A. After that happened, that was what consumed our discussions. The impact of this person putting this lie out there about me. You
know, I couldn’t – I couldn’t understand why
it was happening. I just -- that’s the thing that
was hardest. It’s just why would someone do
something like that.
Q. Were there any changes in frequency, medications, anything like that?
A. Yeah. Unfortunately, yeah, I was given
quite a few new medications at that time to
sleep. Try to bring the anxiety down. To be
able to eat, take a shower, get up out of bed.
Those things.
Q. I’ll -A. And you asked -- excuse me. You asked
about the frequency. And the frequency
7a
increased from maybe, you know, three times
a year with Dr. Rigell to weekly.
Dr. Brown was my psychotherapist that I
did talk therapy with, and that increased to
two to three times a week.
Dr. Rigell, an outpatient adult psychiatrist who
treated Ms. Austin, testified next. Dr. Rigell characterized Ms. Austin’s trauma as “severe” in the wake
of Defendant’s June 2020 Facebook posts. He said
that her resulting treatment was “necessary.” On
cross-examination, Dr. Rigell stated:
Q. But reliving the old DUI was a trigger, if
you will?
A. In this circumstance, the reactivation of
the re-traumatization in my estimation was
the loss of control. The feeling that power had
been taken from her without stimulus. So the
event in my mind wasn’t necessarily the reminder of the DUI. It was that moment where
there was that threat that power and control
had been taken away.
Now, what can happen when somebody
has experienced a previous trauma is that
those same symptoms can, like you said, be
re-triggered. And so the symptom that she experienced related to that DUI, I would assume
are related to her previous treatment of the
trauma versus talking about the DUI itself.
Mr. Austin testified as well. Regarding the effect
that Defendant’s statements had on his family, Mr.
Austin stated:
Q. Okay. As a result of these things, what
happened to your family at that time?
8a
A. We were devastated. We were back to -- I
think, as Dr. Rigell said, back to a traumatic
event.
***
Q. We’ve talked with Mrs. Austin’s psychiatrist this morning and discussed specific conditions. Can you tell me whether these comments had an impact on you personally?
A. Yes, they did.
Q. In what way?
A. I -- I can remember myself, kind of like my
wife explained, just not knowing. I mean, feeling that black. And my number-one concern
was whether my wife was going to make it
through this because it was such a hard experience when she got the DUI fifteen or sixteen
years earlier. And I thought -- honestly, because I travel with my business quite often,
my big concern was is [sic] that she was going
to hurt herself while I was away on a trip.
Asked what harm Defendant’s Facebook statements
had caused him, Mr. Austin stated: “The harm that I
had was my reputation being broadcast that I had attacked the defendant, and the harm of watching my
wife suffer.”
Last to testify was Defendant. Asked whether she
believed that her Facebook post about Ms. Austin was
true at the time it was made, Defendant testified:
Q. So when you – when you made that post,
or not – when you put the message on the post
about that particular conviction of Mrs. Austin, did you believe that to be true?
9a
A. I did. I had no reason not to believe that it
was true.
Q. Did you understand – had you ever heard
of this statute before?
A. No, I hadn’t. So I didn’t know about the
statute.
Q. You had said that – you said in that message that it involved a gun.
A. Exactly.
Q. Why did you say that?
A. Well, I went online to -- and I pulled up the
statute in Texas and it explained what that
particular charge was. And in the description,
they said that it always involved a gun. It was
a misdemeanor if you didn’t discharge the
gun, and it was a felony if you discharge the
gun. And so that’s why I thought a gun was
involved in that deadly conduct.
Q. And how long did it take you to realize that
the deadly conduct statute might include a vehicle? It was any weapon. It didn’t have to be
a gun.
A. It was a long time after. It was after my
initial attorneys got involved and they were
able to get more information.
Q. So when you -- when they had first given
you that cease and desist letter, did you still
think that you were correct?
A. I did. I hadn’t -- you know, I had no reason
to believe that I was in error at that point.
Q. Right. Did they tell you specifically how
you were wrong?
A. No. No.
10a
On cross-examination, Defendant testified that she
did not understand that her Facebook messages
would be public. Defendant also testified that she did
not know whether Ms. Austin was upset by her actions at the homeowners’ association meeting. However, Defendant had testified at her deposition that
she was able to observe that Plaintiffs were visibly
upset.
At the close of trial, the Trial Court found certain
of Defendant’s statements tortious. The Trial Court
then asked the parties to submit briefs on the recoverability of Mr. Austin’s damages and whether a “failure to investigate” holding in McCluen v. Roane
County Times, Inc., 936 S.W.2d 936 (Tenn. Ct. App.
1996) impacted the recoverability of punitive damages. Along with their post-trial brief, Plaintiffs submitted a portion of Mr. Austin’s deposition in support
of an argument for loss of consortium,3 which they
had not pled.
In March 2024, the Trial Court entered its final
order. The Trial Court found in Plaintiffs’ favor, stating in significant part:
3
Mr. Austin testified in his deposition as follows:
Q. Okay. Back to we originated this discussion talking
about your damages, okay, and talking about you said the
reputation was number one. You said there was a second
one. The suffering, the pain and suffering.
A. The pain and suffering, yes.
Q. Discuss that, please.
A. I had to somehow help my wife through a time that was
unimaginable and unbearable. I cried. I didn’t know what
to do. I wanted to help her and she was devastated. She was
in bed. The things that she had been doing in the community and the jobs that she was doing were vaporized.
11a
The tort of defamation includes libel and
slander. Slander is the speaking of defamatory words and libel is the publishing of defamatory words. To establish a prima facie
case of defamation, a plaintiff must prove
that: (1) a party published a statement;
(2) with knowledge that the statement was
false and defaming to the other; or (3) with
reckless disregard for the truth of the statement or with negligence in failing to ascertain
the truth of the statement. Hibdon v.
Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App.
2005) (citations omitted). There was no testimony that either Mr. or Mrs. Austin were
public figures, therefore this Court finds that
this is a claim for defamation to a “private figure” case and did not involve speech of public
concern. T.P.I.—Civil 7.02, see comments regarding ordinary, nonprivileged defamation.
In this case, it is acknowledged that the
statements at issue were published by Mrs.
Plese to her Facebook account. There was undisputed testimony that Mrs. Plese has more
than 2000 followers on Facebook. Mrs. Plese
was an active participant on Facebook. The
Court finds that the statements were published to third parties. Brown v. Christian
Bros. Univ., 428 S.W.3d 38, 50-52 (Tenn. Ct.
App. 2013).
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
12a
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.
Stones River Motors, Inc. v. Mid-South Publ’g
Co., 651 S.W.2d 713, 719 (Tenn. Ct. App 1983)
(citations omitted). See also, T.P.I.—Civil 7.01
“Defamation” Defined. (22nd edition, Sept.
2022).
Damages from false and misleading statements cannot be presumed; actual damages
must be sustained and proved. Davis v. Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App.
2001). The Court must determine whether the
record contains any material evidence of impairment of reputation and standing in the
community, personal humiliation, or mental
anguish and suffering. Murray v. Lineberry,
69 S.W.3d 560, 564 (Tenn. Ct. App. 2001).
Truth is a defense to a defamation claim.
The tort of false light was recognized as a
separate tort by the Tennessee Supreme
Court in the case of West v. Media General
Convergence, Inc., 53 S.W.3d 640 (Tenn.
2001). One who gives publicity to a matter
concerning another that places the other before the public in a false light is subject to liability if the false light would be highly offensive to a reasonable person and the actor had
knowledge or acted in reckless disregard as to
the falsity of the publicized matter. Id. at 643644. See also, Lee v. Mitchell, 2023 WL
5286117 (Tenn. Ct. App., Aug. 17, 2023). In a
false light claim, the facts may be true, but
13a
the angle from which the facts are presented,
or the omission of certain material facts resulting in placing the plaintiff in a false light.
Id. at 646. The Court chose not to adopt actual
malice as the appropriate standard for false
light claims when asserted against a private
individual about matters of private concern.
In addition, our Supreme Court recognized
that the right to privacy is a personal right.
As such, it may not be asserted by a member
of the individuals family. Id. at 648 (citing
Section 6521 of the Restatement (Second) of
Torts (1977)). Damages for false light must be
specifically plead and proven. There must be
actual damages, but the plaintiff need not
prove special or out-of-pocket damages, as evidence of injury to standing in the community,
humiliation, or emotional distress is sufficient. West, 53 S.W.3d at 648. Finally, the
Court noted that the plaintiff may proceed under the alternative theories of libel or false
light, or both although he or she can have but
one recovery for a single instance of publicity.
West, 53 S.W.3d at 647.
As a matter of law, the Court finds that
the statement that “when servicemen or guest
parked in the cul de sac, they were cussed out
by Ron Austin” to not be defamatory and it did
not meet the criteria to place the Plaintiff Ron
Austin in a fault light. They may have been
rude or disagreeable statements, but they did
not rise to the level of defamation and did not
cause a serious threat to Mr. Austin’s reputation.
14a
As to the statement, “Linda Austin
pleaded guilty to the charge of Deadly Conduct in Texas. This explained my experience
of being attacked in the cul de sac by the Austin family”, the Court finds that the first part
of the statement is not defamatory because it
is true. However, since Mrs. Plese admitted in
her deposition that she knew that Mrs. Austin
was upset by the disclosure of her criminal
charges to the HOA board, her further publication of the statement was intended to paint
the Plaintiff Linda Austin in a false light. As
to the second part, the Court finds that it is
neither defamatory nor place the Plaintiffs in
false light because it is admitted that Mr.
Austin called Mrs. Plese white trash and
cursed at her in the cul de sac which would be
a verbal attack. There is no statement that
Mrs. Plese states that she was physically attacked by Mr. Austin and the Court declines
to read the word physical into the statement
based upon the testimony of the parties and
the postings in Facebook.
As to the statement that “The criminal
check revealed that Linda Austin has a criminal record in Texas. They moved to Knoxville
from Texas after she was arrested for Deadly
Conduct with use of a gun”, the Court finds
the statement to be defamatory and to place
Linda Austin in false light. The statement
was defamatory because it was made with
reckless disregard of the truth because Mrs.
Plese admitted that she was not a lawyer and
not capable of understanding the nuances of a
15a
criminal statute and she made no effort to
confirm the truthfulness of her statement.
She did however know from her background
report that Mrs. Austin pled to a misdemeanor charge and not a felony charge.
The Court does not find the testimony of
Mrs. Plese to be credible that she did not understand who could see her posts on Facebook.
The Court does not find the testimony of
Mrs. Plese to be credible when she testified
that it did not cross her mind that her post
might harm someone in the Austin family.
This is particularly true in light of the known
reaction of Mrs. Austin to the mug shot display by Mrs. Plese at the HOA meeting and
then choosing to post to social media alleging
a type of conviction without confirming the accuracy of the statement.
Damages
a. Damages for Linda Austin
The Court finds that Mrs. Plese defamed
Mrs. Austin based upon the statements that
were posted on Facebook. The Court finds
that Mrs. Austin proved $5100 in medical expenses.
The Court finds that Ms. Plese’s post on
Facebook was distributed to all of her
“friends” on Facebook and that Mr. Austin
testified that based upon his review of her account she had at least 2000 friends who would
have had access to the posting.
16a
In addition, the Court finds that Mrs.
Austin’s testimony about the impact of the defamatory statements to be credible. Her testimony was supported by the testimony of her
husband and her treating doctor and photographs that were used to illustrate her life before the posting of statements by Mrs. Plese
and her life after the posting. She testified
that the actions of Mrs. Plese triggered events
from Mrs. Austin’s past. She testified that after the posting, she was embarrassed and
withdrawn and did not want to participate in
daily life. Her husband testified that when he
would leave to go out of town for business, he
constantly worried that his wife was in such a
dark place that she might be tempted to take
her own life. For a significant period of time,
her doctor testified that she had difficulty
managing stress, suffered insomnia, and suffered from moments of despair and hopelessness. Although the Austins are not seeking
any economic damage from the sale of their
house in Knoxville and their subsequent move
to Florida, it was clear that the move was connected to Mrs. Austin’s relationship with her
neighbor and the impact on Mrs. Austin’s
well-being. The Court recognizes that Mrs.
Austin had preexisting mental health issues
requiring therapy visits, the visits increased,
and the emotions were more intensified during a period of time after the Facebook posting. Dr. Rigell testified that she was “isolating, experiencing nightmares and dissociative
17a
experiences” based on the trauma caused by
her neighbor.
Considering the notes provided by Dr. Rigell, the testimony of Mrs. Austin and in consideration of her pre-existing and continuing
mental health issues, the Court finds that the
charges for Dr. Brown between June of 2020
and December of 2021 and the treatment
charges of Dr. Rigell from June 2020 through
February 2020 to be treatment causally related to the actions of Mrs. Plese. Those medical expenses total $5100.00[.]
Based upon an evaluation of the credibility [of] the witnesses presented and the medical records, the Court finds that Mrs. Austin
is entitled to damages for injury to her reputation and for emotional distress that were
caused by the defamation of the Defendant.
The Court awards damages to Mrs. Austin in
the amount of $5100.00 in medical expenses,
$20,000.00 in damages to her reputation and
$25,000.00 for emotional distress for a total
compensatory award to Linda Austin in the
amount of $51,000.00.
In addition, the Court finds that Mrs.
Austin has presented clear and convincing evidence of the malicious and reckless behavior
of the Defendant in making the Facebook
post. Mrs. Plese was aware of the emotional
distress caused by the display of Mrs. Austin’s
mugshot at the HOA meeting in August of
2019, and without confirming the accuracy of
a statement, she chose on June 1, 2020 to post
to Facebook that Mrs. Austin had been
18a
convicted of Dangerous Conduct with a gun
even though the report she received indicated
a conviction of Dangerous Conduct with an
unidentified weapon. The Court finds that
Mrs. Austin is entitled to an award of punitive
damages in the amount of $25,000.00.
b. Damages for Ronald Austin
As previously, indicated the Court does
not find that Mr. Austin proved a defamatory
statement was made about him.
However, Mr. Austin testified at length
about the significant impact of Mrs. Plese’s
defamatory Facebook post about his wife. Although a claim for consortium was not specifically pled, the Court notes that in discovery
and in deposition he testified that an element
of his damages was his consortium claim. He
also testified at trial about the impact of his
wife’s depression and anxiety on his life, including his fear of leaving her alone because
of her depression.
The Court finds that the pleadings should
be amended to conform to the evidence and include Mr. Austin’s claim for a loss of consortium. The Court finds that Mr. Austin is entitled to loss of consortium damages in the
amount of $20,000.00.
IT IS THEREFORE ORDERED, for all
the reasons set forth above, that Ronald and
Linda Austin are entitled to an award of Compensatory Damages against the Defendant
Angela Kay Plese in the amount of SEVENTY-SIX
THOUSAND
DOLLARS
19a
($76,000.00) and to an award of Punitive
Damages in favor of Linda Austin against Angela Plese in the amount of TWENTY-FIVE
THOUSAND DOLLARS ($25,000.00); for a
total judgment in the amount of ONE HUNDRED
ONE
THOUSAND
DOLLARS
($101,000) plus, statutory post-judgment interest. Costs are taxed to the Defendant for
which execution may issue.
Defendant timely appealed to this Court.
Discussion
We restate and consolidate Defendant’s issues as
follows: 1) whether the Trial Court erred in finding
Defendant liable for defamation and false light; 2)
whether the Trial Court erred in awarding punitive
damages against Defendant, including by failing to
hold a separate proceeding pursuant to Tenn. Code
Ann. § 29-39-104(a)(2) or clearly setting out sufficient
reasoning to support punitive damages pursuant to
Tenn. Code Ann. § 29-39-104(a)(4); 3) if Defendant is
liable for defamation or false light, whether the Trial
Court erred in its award of compensatory damages because Plaintiffs’ damages were not caused by Defendant’s defamation or false light; and 4) with regard to
Mr. Austin, whether the Trial Court erred in awarding damages for loss of consortium, whether Defendant lacked sufficient notice of the claim prior to trial,
and whether the Trial Court erred in amending the
pleadings.
Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of
fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan
20a
v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial
court’s conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001). With respect to credibility determinations, the Tennessee Supreme Court has instructed:
When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues
that hinge on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). “[A]ppellate courts will not reevaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Wells v. Tennessee Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); see
also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn.
2011). In order for evidence to be clear and
convincing, it must eliminate any “serious or
substantial doubt about the correctness of the
conclusions drawn from the evidence.” State
v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012)
(quoting Grindstaff v. State, 297 S.W.3d 208,
221 (Tenn. 2009)). Whether the evidence is
clear and convincing is a question of law that
appellate courts review de novo without a presumption of correctness. Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn.
2013), (citing In re Bernard T., 319 S.W.3d
21a
586, 596-97 (Tenn. 2010)), cert. denied, --- U.S.
----, 134 S.Ct. 224, 187 L.Ed.2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014).
We first address whether the Trial Court erred in
finding Defendant liable for defamation and false
light. We have articulated what constitutes a prima
facie claim of defamation in Tennessee as follows:
The elements of a prima facie case of defamation in Tennessee are: (1) the defendant published a statement with (2) “knowledge that
the statement is false and defaming” to the
plaintiff, or with “reckless disregard for the
truth of the statement,” or “negligence in failing to ascertain the truth of the statement.”
Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d
569, 571 (Tenn. 1999) (citing RESTATEMENT (SECOND) OF TORTS § 580 B (1977),
and Press, Inc. v. Verran, 569 S.W.2d 435, 442
(Tenn. 1978)). In this context, “ ‘[p]ublication’
is a term of art meaning the communication
of defamatory matter to a third person.” Quality Auto Parts Co., Inc. v. Bluff City Buick Co.,
Inc., 876 S.W.2d 818, 821 (Tenn. 1994); Brown
v. Christian Bros. Univ., 428 S.W.3d 38, 50
(Tenn. Ct. App. 2013). With slander, “ ‘publication’ occurs when the defamatory matter is
spoken.” Brown, 428 S.W.3d at 50.
This court has previously held:
“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
22a
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.’ ”
McWhorter v. Barre, 132 S.W.3d 354, 364
(Tenn. Ct. App. 2003) (quoting Stones River
Motors, Inc. v. Mid-South Publ’g Co., Inc., 651
S.W.2d 713, 719 (Tenn. Ct. App. 1983)). Moreover, the damaging words must be false; “[i]f
[the words] are true, or essentially true, they
are not actionable, even though the published
statement contains other inaccuracies which
are not damaging.” Stones River, 651 S.W.2d
at 719; see also Brown, 428 S.W.3d at 50. The
determination of “[w]hether a communication
is capable of conveying a defamatory meaning” presents a question of law and is, thus,
reviewed de novo. Revis v. McClean, 31
S.W.3d 250, 253 (Tenn. Ct. App. 2000).
***
To make out a claim for defamation, a plaintiff must prove that “the defamation resulted
in injury to the person’s character and reputation.” Brown, 428 S.W.3d at 50. In a defamation suit, damages cannot be presumed; rather, a plaintiff must sustain and prove actual
damages. Id. at 51 (citing Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App.
2001)). As to damages, “ ‘the issue is whether
the record contains any material evidence of
23a
impairment of reputation and standing in the
community, personal humiliation, or mental
anguish and suffering.’ ” Id. (quoting Murray
v. Lineberry, 69 S.W.3d 560, 564 (Tenn. Ct.
App. 2001)).
McGuffey v. Belmont Weekday Sch., No. M201901413-COA-R3-CV, 2020 WL 2754896, at *14, 17
(Tenn. Ct. App. May 27, 2020), perm. app. denied
Sept. 16, 2020.
With respect to the separate tort of false light invasion of privacy, this Court has discussed as follows:
Our Supreme Court has adopted the following definition of the tort of false light invasion of privacy:
“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.”
West v. Media Gen. Convergence, Inc., 53
S.W.3d 640, 644 (Tenn. 2001) (quoting RESTATEMENT (SECOND) OF TORTS § 652E
(1977)). In West, the Court “departed from the
Restatement by stating that Tennessee does
24a
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.” Loftis v. Rayburn, No. M2017-01502COA-R3-CV, 2018 WL 1895842, at *7 (Tenn.
Ct. App. Apr. 20, 2018). A private plaintiff
must also show actual malice when asserting
a claim concerning “a matter of public concern.” West, 53 S.W.3d at 647; Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 303
(Tenn. Ct. App. 2007).
***
Ms. McGuffey has failed to establish the element of damages necessary for a claim of false
light invasion of privacy. For such a claim, she
was required to show evidence of “injury to
standing in the community, humiliation, or
emotional distress.” West, 53 S.W.3d at 648.
In her argument regarding her false light
claim, Ms. McGuffey asserts that the statements at issue “would make it difficult for her
to secure employment in her field.” Although
she presented evidence of her earnings after
her termination from employment at BWS,
she did not substantiate a loss of standing in
the community, humiliation, or emotional distress.
McGuffey, 2020 WL 2754896, at *17-18 (footnote
omitted).
As to the Trial Court’s false light findings, Defendant argues that her statement concerning Ms.
Austin’s conviction for deadly conduct was true and
its implications were true. Defendant contends that
25a
the Trial Court wrongly considered her motivation in
publishing the statement in determining whether it
cast Ms. Austin in a false light. She argues further
that her statement about a gun having been used
stemmed from a layperson’s misunderstanding of the
Texas statute. Defendant asserts that she did not act
with reckless disregard as to the falsity of the publicized matter at issue. With respect to defamation, Defendant acknowledges having published a false statement about Ms. Austin but argues that she made a
good faith effort to ascertain the truth. Defendant
states further that Ms. Austin failed to show any damage to her reputation.
While Ms. Austin pled guilty to deadly conduct in
Texas, Defendant’s statements on Facebook omitted
crucial context about her conviction. Namely, Ms.
Austin pled guilty to deadly conduct to obtain a more
favorable result for insurance purposes in her DUI
case. While a DUI charge is a serious matter, Defendant’s statements fundamentally distorted the truth
about Ms. Austin’s conviction in a manner highly offensive to a reasonable person. The import, or thrust,
of Defendant’s statements about deadly conduct and
use of a gun was that Ms. Austin was violent or aggressive based on her conviction in Texas many years
earlier. That is materially different from the truth,
which is that Ms. Austin reached a plea deal in a DUI
case and no gun was involved at all.
We are unpersuaded by Defendant’s contention
that she acted in good faith to ascertain the truth
about Ms. Austin’s conviction. We understand that
Defendant is not a lawyer, and that the Texas statute
is perhaps unfortunately named. Nevertheless, that
Defendant is not a lawyer does not somehow shield
26a
her from a false light claim. Acting on minimal information, Defendant published statements about Ms.
Austin that, while true so far as the reference to the
deadly conduct statute goes, badly warped the reality
of Ms. Austin’s Texas arrest. In so doing, Defendant
acted with reckless disregard. Insofar as Defendant
argues that Ms. Austin failed to allege or prove damages, we note the ample evidence from trial concerning Ms. Austin’s medical bills, personal humiliation,
and mental anguish and suffering. We conclude that
Ms. Austin adequately alleged and proved damages.
The evidence does not preponderate against the Trial
Court’s findings relative to false light.
Regarding defamation, Defendant’s false assertion that Ms. Austin’s offense involved the use of a
gun was defamatory as it held Ms. Austin up to public
hatred, contempt, or ridicule. While obviously there is
nothing defamatory per se about the use of a gun,
“deadly conduct with use of gun” changes the picture
completely. That introduces an element of disgrace as
there is broad societal hostility to gun crime. Defendant charged ahead and made her false statement
about Ms. Austin on a slapdash and flimsy basis. Defendant acted with a reckless disregard for the truth,
and Ms. Austin consequently incurred medical bills,
personal humiliation, and emotional distress. See Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 164 (Tenn.
Ct. App. 1997) (“The issue is whether the record contains any material evidence of impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering.”). The evidence does not preponderate against the Trial Court’s
factual findings relative to defamation.
27a
Defendant argues overall that finding her conduct
tortious would have a chilling effect on speech, and
that courts would have to patrol the internet. We disagree. This case involves the application of well-established Tennessee law on defamation and false light.
That Defendant’s tortious remarks about Ms. Austin
were put on the internet as opposed to a bulletin
board in a city square, for example, is not a defense.
The same elements apply. We affirm the Trial Court
in its finding Defendant liable for defamation and
false light invasion of privacy.
We next address whether the Trial Court erred in
awarding punitive damages against Defendant, including by failing to hold a separate proceeding pursuant to Tenn. Code Ann. § 29-39-104(a)(2)4 or clearly
setting out sufficient reasoning to support punitive
damages pursuant to Tenn. Code Ann. § 29-39104(a)(4).5 This Court has discussed punitive damages as follows:
Tenn. Code Ann. § 29-39-104(a)(2) (West eff. July 1, 2013) provides:
4
In an action in which the claimant seeks an award of
punitive damages, the trier of fact in a bifurcated proceeding shall first determine whether compensatory
damages are to be awarded and in what amount and by
special verdict whether each defendant’s conduct was
malicious, intentional, fraudulent or reckless and
whether subdivision (a)(7) applies[.]
Tenn. Code Ann. § 29-39-104(a)(4) (West eff. July 1, 2013) provides:
5
In all cases involving an award of punitive damages,
the trier of fact, in determining the amount of punitive
damages, shall consider, to the extent relevant, the
28a
To be entitled to punitive damages, a
plaintiff must prove by clear and convincing
evidence that the defendant “acted either
(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 901 (Tenn. 1992). To
meet the clear and convincing evidence standard, evidence must “leave[ ] ‘no serious or substantial doubt about the correctness of the
conclusions drawn.’ ” Goff v. Elmo Greer &
Sons Constr. Co., Inc., 297 S.W.3d 175, 187
following: the defendant’s financial condition and net
worth; the nature and reprehensibility of the
defendant’s wrongdoing; the impact of the defendant’s
conduct on the plaintiff; the relationship of the defendant to the plaintiff; the defendant’s awareness of the
amount of harm being caused and the defendant’s motivation in causing such harm; the duration of the defendant’s misconduct and whether the defendant attempted to conceal such misconduct; the expense plaintiff has borne in attempts to recover the losses; whether
the defendant profited from the activity, and if defendant did profit, whether the punitive award should be in
excess of the profit in order to deter similar future behavior; whether, and the extent to which, defendant
has been subjected to previous punitive damage
awards based upon the same wrongful act; whether,
once the misconduct became known to defendant, defendant took remedial action or attempted to make
amends by offering a prompt and fair settlement for actual harm caused; and any other circumstances shown
by the evidence that bear on determining a proper
amount of punitive damages. The trier of fact shall be
instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while
the purpose of compensatory damages is to make the
plaintiff whole[.]
29a
(Tenn. 2009) (quoting Hodges, 833 S.W.2d at
901 n.3). Punitive damages are intended to
punish and deter similar future wrongs and
“are available in ‘cases involving only the
most egregious of wrongs.’ ” Sanford v. Waugh
& Co., Inc., 328 S.W.3d 836, 849 (Tenn. 2010)
(quoting Hodges, 833 S.W.2d at 901).
McGuffey, 2020 WL 2754896, at *19.
Defendant argues that the punitive damages
award must be reversed because the Trial Court
failed to bifurcate the proceedings as required by Tennessee law. Notably, Defendant did not request bifurcation in the Trial Court. Even still, we recognize a
2020 opinion by this Court in which we determined
that bifurcation in punitive damage proceedings is
mandatory pursuant to Tenn. Code Ann. § 29-39104(a)(2), even in bench trials and whether requested
or not. We stated:
Despite the lack of caselaw addressing the
issue, several authors have opined that bifurcation is now mandatory pursuant to the statute. See, e.g., Gary A. Cooper, Tennessee
Handbook Series, Tennessee Forms for Trial
Practice – Damages § 2:1 (2019) (“The Hodges
decision provided that if a defendant moved
for bifurcation, trial involving a claim for punitive damages would be bifurcated. The Tennessee Civil Justice Act of 2011 requires bifurcation of compensatory and punitive damages, without mention of any requirement
that a defendant must move for such bifurcation.”); Id. at § 2:2 (“Effective October 1, 2011,
a motion for bifurcation of trial involving a
30a
claim for punitive damages is no longer required. The Act provides for bifurcation, without mention of the necessity of a motion.”);
Robert E. Burch, Tennessee Handbook Series,
Trial Handbook for Tennessee Lawyers § 33:7
(2019) (“A trial in which punitive damages are
sought shall be a bifurcated proceeding. . . .”);
8 Tennessee Practice Series Pattern Jury Instructions Civil 14.55A (2019 ed.) (“The statute requires bifurcation in Tenn. Code Ann. §
29-39-104(a)(2).”).
***
Returning to the language of the statute,
it unequivocally states, “In an action in which
the claimant seeks an award of punitive damages, the trier of fact in a bifurcated proceeding shall first determine whether compensatory damages are to be awarded and in what
amount and by special verdict whether each
defendant’s conduct was malicious, intentional, fraudulent or reckless. . . .” Tenn. Code
Ann. § 29-39-104(a)(2) (emphasis added). We
conclude that this language is mandatory and
that it applies to both jury trials and bench
trials. Courts “presume that the General Assembly used every word deliberately and that
each word has a specific meaning and purpose.” Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 527 (Tenn. 2010). Based on the plain language of the statute, we decline the invitation
to read the statute as mandating bifurcation
only in a jury trial and not in a bench trial.
***
31a
Because of the host of problems with the
procedure employed and the lack of necessary
findings, we deem it appropriate to vacate the
award of punitive damages entirely. On remand, the proceedings should be conducted in
two phases. First, the trial court should enter
a revised order regarding its initial decision to
impose punitive damages based on the evidence already presented at trial, clarifying
whether it finds by clear and convincing evidence that Defendant acted intentionally,
fraudulently, maliciously, or recklessly. If it
does, the court must hold an additional hearing regarding the amount of punitive damages to be awarded, if any. Any additional order awarding punitive damages must address
the statutory factors listed in Tennessee Code
Annotated section 29-39-104.
Hudson, Holeyfield & Banks, G.P. v. MNR Hospitality,
LLC, No. W2019-00123-COA-R3-CV, 2020 WL
4577483, at *10-11 (Tenn. Ct. App. Aug. 7, 2020), no
appl. perm. appeal filed (emphases in original); see also
Hogue v. P&C Invs., Inc., No. M2021-01335-COAR3CV, 2022 WL 17175608 , at *13 (Tenn. Ct. App. Nov.
23, 2022), no appl. perm. appeal filed (“In trials where
punitive damages are sought, the proceedings must be
bifurcated.”).
For their part, Plaintiffs acknowledge the caselaw
but argue that interpreting Tenn. Code Ann. § 29-39104(a)(2) to require bifurcation even when no one requests it violates the separation of powers doctrine in
that it unduly interferes with the judiciary’s control
of its own procedure. The State, in turn, filed a brief
defending the constitutionality of Tenn. Code Ann.
32a
§ 29-39-104(a)(2). However, we need not reach the
constitutional question. Not all errors by trial courts
rise to the level of reversible error. Rule 36 of the Tennessee Rules of Appellate Procedure provides that a
final judgment “shall not be set aside unless, considering the whole record, error involving a substantial
right more probably than not affected the judgment or
would result in prejudice to the judicial process.”
Tenn. R. App. P. 36(b). Even granting that Defendant
is correct and the Trial Court erred in failing to bifurcate, Defendant does not articulate how she was prejudiced. It is wholly unclear how the result of this
bench trial would have been more favorable to Defendant had the Trial Court conducted a separate
hearing for punitive damages. That being so, any error by the Trial Court in failing to bifurcate proceedings for punitive damages was harmless in that it did
not more probably than not affect the judgment or result in prejudice to the judicial process.
Next on this issue, Defendant argues that the
Trial Court failed to sufficiently review the factors for
an award of punitive damages under Tenn. Code Ann.
§ 29-39-104(a)(4). The Trial Court did not explicitly
set out and discuss each factor. However, the statute
provides for consideration of the listed factors “to the
extent relevant.” Tenn. Code Ann. § 29-39-104(a)(4)
(West eff. July 1, 2013). Not every factor will prove
relevant to every case. It is clear from the Trial
Court’s order what it found relevant based on the evidence, and that related to the evidence showing the
maliciousness of Defendant’s act. The Trial Court
found that “Mrs. Austin has presented clear and convincing evidence of the malicious and reckless behavior of the Defendant in making the Facebook post.”
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The Trial Court found further that “Mrs. Plese was
aware of the emotional distress caused by the display
of Mrs. Austin’s mugshot at the HOA meeting in August of 2019,” and that “without confirming the accuracy of a statement, she chose on June 1, 2020 to post
to Facebook that Mrs. Austin had been convicted of
Dangerous Conduct with a gun even though the report she received indicated a conviction of Dangerous
Conduct with an unidentified weapon.” These findings, which the evidence does not preponderate
against, fit with certain of the statute’s factors, such
as “the nature and reprehensibility of the defendant’s
wrongdoing; the impact of the defendant’s conduct on
the plaintiff; the relationship of the defendant to the
plaintiff; the defendant’s awareness of the amount of
harm being caused and the defendant’s motivation in
causing such harm[.]” Tenn. Code Ann. § 29-39104(a)(4) (West eff. July 1, 2013). We find that the
Trial Court adequately considered the factors for an
award of punitive damages under Tenn. Code Ann.
§ 29-39-104(a)(4).
Lastly, Defendant argues that her conduct “did
not rise to the level of reckless conduct as is required
under the statute to permit the trial court to award
punitive damages.” The Trial Court found clear and
convincing evidence “of the malicious and reckless behavior of the Defendant in making the Facebook
post.” The Trial Court found further that Defendant
was aware of how upset Ms. Austin was at having her
mugshot shown at the homeowner’s association meeting. Defendant’s actions toward Ms. Austin, her erstwhile neighbor, showed maliciousness. In addition,
Defendant declined to timely retract her statements,
only offering to do so a year later. Like the Trial
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Court, we find that Defendant’s conduct was sufficiently egregious to support an award of punitive
damages by the standard of clear and convincing evidence. We affirm the Trial Court’s award to Ms. Austin of punitive damages.
We next address whether the Trial Court erred in
its award of compensatory damages because Plaintiffs’ damages were not caused by Defendant’s defamation or false light. On this issue, Defendant argues
that there was no causal connection between the
harm Ms. Austin suffered and the defamatory statements. As relevant to this issue, the Trial Court
found:
[T]he Court finds that Mrs. Austin’s testimony about the impact of the defamatory
statements to be credible. Her testimony was
supported by the testimony of her husband
and her treating doctor and photographs that
were used to illustrate her life before the posting of statements by Mrs. Plese and her life
after the posting. She testified that the actions of Mrs. Plese triggered events from Mrs.
Austin’s past. She testified that after the posting, she was embarrassed and withdrawn and
did not want to participate in daily life. Her
husband testified that when he would leave to
go out of town for business, he constantly worried that his wife was in such a dark place
that she might be tempted to take her own
life. For a significant period of time, her doctor
testified that she had difficulty managing
stress, suffered insomnia, and suffered from
moments of despair and hopelessness. Although the Austins are not seeking any
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economic damage from the sale of their house
in Knoxville and their subsequent move to
Florida, it was clear that the move was connected to Mrs. Austin’s relationship with her
neighbor and the impact on Mrs. Austin’s
well-being. The Court recognizes that Mrs.
Austin had preexisting mental health issues
requiring therapy visits, the visits increased,
and the emotions were more intensified during a period of time after the Facebook posting. Dr. Rigell testified that she was “isolating, experiencing nightmares and dissociative
experiences” based on the trauma caused by
her neighbor.
There is no clear and convincing evidence that would
serve to overturn the Trial Court’s favorable assessment of Ms. Austin’s credibility and her explanation
of how Defendant’s statements impacted her. Dr. Rigell’s testimony further supports this causal connection. In short, Ms. Austin suffered personal humiliation, emotional distress, and incurred medical bills as
a direct result of Defendant’s tortious statements on
Facebook. Defendant’s attempt to argue that the actual cause was something other than the June 2020
Facebook posts is unavailing.
While there is evidentiary support for the Trial
Court’s findings with respect to medical bills, personal humiliation, and emotional distress, the same
cannot be said for the Trial Court’s $20,000 award to
Ms. Austin for reputational damage. The record contains no evidence of reputational damage incurred by
Ms. Austin. Plaintiffs argue that the evidence is circumstantial in nature. We disagree. The evidence
shows that Ms. Austin suffered mentally and
36a
emotionally, became withdrawn, and required additional medical treatment, but none of the evidence
goes toward her external standing in the community—her reputation. We therefore vacate that portion of the Trial Court’s judgment granting Ms. Austin $20,000 in reputational damage as there is simply
no evidence in the record to support it. We affirm the
remainder of the compensatory damages.
The final issue we address is whether, regarding
Mr. Austin, the Trial Court erred in awarding damages for loss of consortium, whether Defendant lacked
sufficient notice of the claim prior to trial, and
whether the Trial Court erred in amending the pleadings. Plaintiffs did not assert loss of consortium in
their complaint, but the Trial Court found that the
pleadings should be amended to conform to the evidence and include a loss of consortium claim. Defendant states that she lacked sufficient notice of the
claim. In response, Plaintiffs say that the claim was
tried by implied consent. With respect to implied consent, this Court has stated:
Tennessee Rule of Civil Procedure 15.02 creates an exception to the general rule that
“[j]udgments awarded beyond the scope of the
pleadings are void.” See Randolph v. Meduri,
416 S.W.3d 378, 384 (Tenn. Ct. App. 2011)
(footnote omitted). Rule 15.02 provides in pertinent part:
Amendments to Conform to the Evidence.—When issues not raised by
the pleadings are tried by express or
implied consent of the parties, they
shall be treated in all respects as if
37a
they had been raised in the pleadings.
Such amendment of the pleadings as
may be necessary to cause them to
conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend
does not affect the result of the trial of
these issues.
“Generally speaking, trial by implied consent
will be found where the party opposed to the
amendment knew or should reasonably have
known of the evidence relating to the new issue, did not object to this evidence, and was
not prejudiced thereby.” Hiller v. Hailey, 915
S.W.2d 800, 804 (Tenn. Ct. App. 1995) (quoting Zack Cheek Builders, Inc. v. McLeod, 597
S.W.2d 888, 890 (Tenn. 1980)). As this Court
has explained, “[t]rial by implied consent is
not shown by the presentation of evidence
that is relevant to an unestablished issue
when that evidence is also relevant to the established issue.” Christmas Lumber Co. v.
Valiga, 99 S.W.3d 585, 593 (Tenn. Ct. App.
2002) (quoting McLemore v. Powell, 968
S.W.2d 799, 803 (Tenn. Ct. App. 1997)). “The
determination of whether there was implied
consent rests in the discretion of the trial
judge, whose determination can be reversed
only upon a finding of abuse.” Zack Cheek
Builders, Inc. v. McLeod, 597 S.W.2d 888, 891
(Tenn. 1980).
Jones v. Unrefined Oil Co., Inc., No. E2023-00272COA-R3-CV, 2024 WL 2797073, at *8 (Tenn. Ct. App.
38a
May 31, 2024), no appl. perm. appeal filed. Concerning the deferential abuse of discretion standard, our
Supreme Court has stated that “[a]n abuse of discretion occurs when the trial court causes an injustice by
applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that
causes an injustice.” Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011). Our Supreme Court has
explained that “the basis for recovery of loss of consortium is an ‘interference with the continuance of a
healthy and happy marital life and injury to the conjugal relation[.]’” Yebuah v. Ctr. for Urological Treatment, PLC, 624 S.W.3d 481, 489 (Tenn. 2021) (quoting
Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105,
109 (Tenn. 1996)).
As relevant to this issue, the Trial Court found
that “Mr. Austin testified at length about the significant impact of Mrs. Plese’s defamatory Facebook post
about his wife,” and that “in discovery and in deposition he testified that an element of his damages was
his consortium claim. He also testified at trial about
the impact of his wife’s depression and anxiety on his
life, including his fear of leaving her alone because of
her depression.” Defendant argues on appeal that “a
stressful, even painful, experience in a marriage is not
sufficient to prove a loss of consortium claim,” and further that “[Mr. Austin] did not testify or prove their
communication, cooperation, or quality time suffered
as a result of these events.” We disagree with Defendant. Mr. Austin’s testimony about the impact of Defendant’s statements on his family life went squarely
to the health and happiness of his marriage. It is evident from Mr. Austin’s testimony that his marital life
39a
suffered as a result of Defendant’s defamatory statements, including to the point where he feared Ms.
Austin might engage in self-harm. Mr. Austin’s testimony about the impact of Defendant’s statements on
his married life did not relate to the other established
claims at trial, yet there was no objection. We conclude that Defendant was put on sufficient notice of
Mr. Austin’s loss of consortium claim. Further, the evidence does not preponderate against the Trial
Court’s findings regarding damages for Mr. Austin’s
loss of consortium. We find no abuse of discretion in
the Trial Court’s determination that Mr. Austin’s loss
of consortium claim was tried by implied consent and
that the pleadings should be amended to conform to
the evidence.
As a final point on damages, the parties agree
that the Trial Court made a mathematical error in its
order. The Trial Court awarded Ms. Austin $20,000
for reputation damage, $25,000 for emotional distress, and $5,100 for medical expenses; punitive damages totaling $25,000; and $20,000 for Mr. Austin’s
loss of consortium claim. The Trial Court stated total
damages as $101,000. However, the damages instead
add up to $95,100. Because we vacate the Trial
Court’s award of $20,000 to Ms. Austin for reputation
damage, this leaves a total of $75,100. We therefore
modify the judgment to $75,100.
In sum, we vacate that portion of the Trial Court’s
judgment awarding Ms. Austin $20,000 for reputational damage as it is unsupported by evidence. We
modify the Trial Court’s judgment to $75,100. Otherwise, we affirm.
40a
Conclusion
The judgment of the Trial Court is affirmed as
modified, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on
appeal are assessed equally against the Appellant,
Angela Kay Plese, and her surety, if any, and the Appellees, Ronald Austin and Linda Austin.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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APPENDIX B
IN THE CIRCUIT COURT FOR KNOX
COUNTY, TENNESSEE
FILED
CHARLES D. SUSANO III
CLERK
2024MAR22 AM11:44
KNOX COUNTY CIRCUIT,
CIVIL SESSIONS
AND JUVENILLE COURTS
RONALD AUSTIN and
LINDA AUSTIN,
v.
Plaintiffs
ANGELA KAY PLESE
Defendant
)
)
)
)
)
)
)
)
)
No. 3-198-20
FINAL ORDER
This matter was heard as a non-jury trial on September 21, 2023. After hearing the testimony of witnesses, the documentary and video evidence admitted
at trial, the written stipulation of the parties and the
agreement of the parties at the beginning of trial as
to the statements at issue and after receiving supplemental briefs to address questions from the Court, the
Court makes the following findings based on the evidence presented at trial.
Findings of Fact
42a
The Plaintiffs and the Defendant were next door
neighbors in the Lakecove subdivision in Knox
County, Tennessee. The Defendant moved into her
home in 2008. Plaintiffs moved into their home in
2016. A year later, the Plaintiffs purchased the vacant
lot between them with an agreement that a house
would not be built on the vacant lot.
Both parties have a driveway exiting into a cul de
sac, as defined by the Merriam Webster Dictionary as
“a street or passage closed at one end.” In this case
the end of the street is shaped like a “T”. Plaintiffs
have one driveway on Lot 10 of the subdivision, where
their residence is located, and a second driveway on
Lot 11, the vacant lot.
Plaintiffs installed a fence on their property that
became a source of contention between Plaintiffs and
Defendant.
At some point, the Plaintiffs also placed orange
traffic cones that sat in the street in front of the Plaintiffs’ driveway on the vacant lot. The cones became a
source of contention between the parties.
In October of 2019, the HOA conducted a grievance hearing, challenging the location of the Plaintiffs’ fence. At the conclusion of the hearing, the HOA
determined that the fence was properly located and
as approved by the HOA.
In response to things said at the hearing, Defendant showed members of the HOA information about a
criminal conviction against Linda Austin. When
Linda Austin saw her mug shot being shown to members of the HOA board, she was flooded with emotions
and had to run out of the meeting. She testified that
43a
the stress of the mugshot was so significant that she
had no recollection of anything else other than fleeing
the meeting to their car.
Mr. Austin testified and confirmed that his wife
ran out of the meeting. He found her standing near
their truck and she was wailing in a manner that he
has never seen in their entire marriage.
On June 1, 2020, the Defendant placed a post on
her Facebook page. The post contained a reference to
the fact that she was a member of the Lakecove Subdivision and that she had attempted to make a post
on their Neighborhood Facebook page for Memorial
Day. The post had a picture of the American Flag,
with an eagle and a link to Celine Dion singing God
Bless America. The words “God Bless America” are in
large text in the middle of the page. Her personal post
states that the HOA blocked her post because of the
HOA rule against religious posts.
Plaintiffs testified that the Defendant has more
than 2000 Facebook Friends. Ron Austin testified
that by his review, the Plaintiff posts 30-40 times a
day. Defendant could not state how many Facebook
Friends she has.1
After Defendant’s post about her attempt to post
a Memorial Day tribute, there were numerous comments, including comments from Defendant Angela
The Court is aware that there is a technical difference between a post and the comments made to a post. However, for
purposes of simplicity in this Order, the Court will use the term
"post" to refer to statements made by Ms. Plese on Facebook
whether generated as an original post or as a comment to a
post.
1
44a
Stroud Plese and comments on her comments. (See
Trial Exhibit 13)
At the beginning of the trial the parties agreed
that they were alleging the following statements
found in the comments of Angela Plese’s Facebook
post, and stipulated to have been made by Angela
Plese, (Trial Exhibit 13) were at issue:
1. When servicemen or guest parked in that area
[the cul de sac where Ron Austin placed orange cones] they would often get cussed out
by Ron [Austin].
2. I [Angela Plese] finally did a background check
hoping I was just overreacting. The criminal
check revealed that Linda Austin has a criminal record in Texas. They [Austins] moved to
Knoxville from Texas after she was arrested
for “Deadly Conduct” with use of gun. I [Angela Plese] realized my instincts were correct
and I needed to protect myself from the Austin family.
3. Linda Austin pleaded guilty to the charges of
Deadly Conduct in Texas. This explained my
[Angela Plese] experience of being attacked in
the cul de sac by the Austin family.
Ms. Plese alleges truth as a defense to statements
1 and 3. Ms. Plese acknowledges that the “use of gun”
portion of the statement 2 was not true but that she
has an explanation for her statement.
Mrs. Austin’s family had lived in Knoxville but
then moved to Texas and she and her family lived in
Texas for 15 years. They moved from Texas to Ohio
where they lived for two years. Mrs. Austin’s sister
45a
lived in Knoxville and was dying. Mr. Austin could
work remotely so they decided to move back to Knoxville. They lived in Knoxville from 2016 to 2021. They
currently reside in Florida.
Mrs. Austin enjoyed her life in Knoxville. She became active in the community including her work
with Akima, a non-profit group. Photographic evidence was provided of her active involvement with her
friends in Akima and her participation in fundraising
events for charities. She also obtained her insurance
license to work in Medicare insurance.
Mrs. Austin had a difficult childhood. Her father
was an alcoholic and she had a strained relationship
with her mother. She started counseling in her early
20s. When life got difficult, she would seek help. She
was diagnosed with depression in her mid-30s and
had been taking some form of medication for depression and/or anxiety since that time.
When she initially moved back to Knoxville, she
saw psychiatrist, Dr. Jobson for her medication management. Shortly thereafter, Dr. Jobson retired, and
her care was transferred to Dr. Rigell, a board-certified psychiatrist. She first saw Dr. Rigell in February
of 2019. At that time, she was doing fairly well but
had stress issues related to her sister’s death and as
a result of her husband’s pulmonary embolism. She
testified that she saw Dr. Rigell approximately 3
times per year and that she also saw Dr. Brown, a
clinical psychologist on a regular basis. Dr. Rigell’s
notes state that prior to June 1, 2020, Ms. Austin was
making progress and facing stress without much issue. There are no notes regarding the October 2019
46a
HOA meeting, or any stress noted as a result of the
mug shot display to the HOA board members.
Ms. Austin testified that she was arrested and
charged with DUI after an accident in Texas. No one
was injured in the accident. She testified that it was
recommended that she enter a plea to a “deadly conduct” charge to avoid having the DUI charge impact
her insurance. She testified that she was represented
by an attorney, and he explained the deadly conduct
charge to her. She testified that she was humiliated
by the DUI arrest and that it was particularly disturbing to her considering her family’s history with
alcohol. She took her punishment and sought additional mental health treatment.
Ms. Austin testified that she learned of the June
1, 2020 post made by Ms. Plese from her husband who
had received a screenshot of the post from a neighbor.
She said that she and her family were devastated by
the posts. She was humiliated. She thought people
would be fearful of her. She was flooded with memories of the trauma of the DUI arrest. She began to isolate and stay in the house and did not go to any events
with Akima because of the fear that people would
think she had engaged in violence with a gun and did
not want the attack on her reputation to impact the
reputation of Akima.
She immediately contacted Dr. Rigell about the
incident and the shame and stress she felt regarding
the disclosure of her history by her neighbor. Instead
of the normal three times a year visit with Dr. Rigell,
she had two telephone visits in June of 2020 and then
monthly visits from July to December of 2020. (Most
of the early visits were telephone visits due to
47a
COVID.) She also increased her visits with Dr.
Brown. She said that things began to normalize for
her by December of 2020, although she still had some
anxiety and fears regarding her neighbor.
Ms. Austin stated that the posts made by Ms.
Plese were humiliating because of what people would
think of someone charged with a crime involving a
gun.
Ms. Austin stated that they did not move from
Texas to Knoxville. She stated that she was not arrested for deadly conduct with use of a gun. She admits she was arrested for a DUI in Texas and that she
entered a plea to misdemeanor deadly conduct.
Dr. Rigell testified live at trial and confirmed his
notes, diagnosis, and treatment of Ms. Austin. On
June 4, 2020, Dr. Rigell notes that “Linda was blindsided by a neighbor. She is struggling with the impact
of her neighbor’s choice to post on Facebook about a
DUI she had 16 years ago. It is impacting her selfworth and has been a horrible reminder of a difficult
chapter. Sleep is stable”. He recommended a followup with him in one week. On June 12, he reports that
her sleep is stabilizing, and her mood is improving.
He notes that she states that her neighbor’s actions
have impacted her standing at work. He also notes
that she is concerned that this might impact her relationship with her insurance companies and impact
credentialing at the end of the month. On June 18, she
reports to Dr. Rigell that she is not doing as well as
she thought. She reports that the actions of her neighbor have caused her to relive previous traumas and
that she is having nightmares. On July 8, Dr. Rigell
notes that she is making slow progress and is battling
48a
real physical fatigue and sleep disruption because of
the neighbor’s actions. Mrs. Austin advised Dr. Rigell
that they were taking legal action against Ms. Austin
and that responding to legal events takes her back to
the underlying event and notes she is worried about
her safety. His December notes indicate that she was
doing much better, and that Ms. Austin was excited
about her future and moving forward. In February his
notes reflect that she was returning to a every three
months schedule of visits. By September she notes
that they had sold their house and that they are generally doing okay with the transition. Their house in
Lakecove sold in two weeks. In November of 2021, Dr.
Rigell reports that she is doing much better. Sleep,
mood, and outlook have all improved. (Notes of Dr. Rigell, Trial Exhibit 3). Dr. Rigell testified that the incident involving the posts by Ms. Austin was the cause
of the increased frequency of visits with Dr. Rigell. He
also testified that the medical bills of both Dr. Rigell
and Dr. Brown were reasonable and necessary and
were causally related to the actions of Ms. Plese in
making the posts in June of 2020. Dr. Rigell also admitted that it is likely Mrs. Austin would have continued to be his patient, treated for depression and anxiety, without the June 2020 Facebook posting incident.
Dr. Rigell’s initial notes indicate that Ms. Austin
was seeing Dr. Brown every other week. Mrs. Austin
testified, prior to any incident with Mrs. Plese, she
was seeing Dr. Brown 2-3 times per month. No notes
or records for the visits with Dr. Brown were introduced.
Medical bills were provided for the period of June
2020 through October of 2021 for Dr. Brown and June
49a
2020 through August of 2022 for Dr. Rigell. (Trial Exhibit 5).
The written stipulation entered by the parties, entered as Trial Exhibit 8, indicate that no claim is being made for any economic damages from their move
from Knoxville to Florida.
Mr. Austin confirmed that there had been animosity between his family and the neighbor, Ms.
Plese for some time. He stated that the problems began when Ms. Plese removed survey stakes from his
property. There were additional issues in August of
2019 involving parking in the cul de sac and cones
that Mr. Austin placed in the cul de sac. He admits
that he called Mrs. Plese white trash and cussed at
her on one occasion.
Mr. Austin was present at the October 2019 HOA
board meeting where Mrs. Plese disclosed the picture
of Mrs. Austin’s mug shot from her arrest in Texas.
He said that his wife ran from the meeting, and he
found her standing beside his truck. He stated that he
never before had seen his wife crying so hard.
After the June 1, 2020 Facebook incident, Mr.
Austin reviewed Mrs. Plese’s Facebook posting and,
by his count, she posted 30 or more posts per day. He
also testified that her Facebook page indicated that
Mrs. Plese had more than 2000 Facebook friends.
Mr. Austin testified that after the June 1, 2020
post, his family was devastated. His wife was back to
facing a prior traumatic event. He testified that when
he travelled for business that he was worried about
leaving his wife alone because he was concerned that
she would hurt herself. He testified that they left
50a
Knoxville because of the damage the Defendant’s behavior was causing to his family.
Neither Mrs. Austin nor Mr. Austin provided any
testimony as to any specific economic loss, other than
the evidence of the medical expenses placed in the record. No other witnesses testified as to any damage to
reputation of Mr. Austin or Mrs. Austin.
Mrs. Plese is a cul de sac neighbor of the Austins.
She and her family have resided in Lakecove subdivision since 2008 when there were no other neighbors.
The Austins moved to Lakecove in 2016 and initially
they had a good relationship. She would talk with
Linda Austin and when Ms. Austin’s husband was out
of town for work, they visited each other’s homes and
went on kayak trips together. She agrees that the relationship between the two families has significantly
deteriorated, and she eventually requested a meeting
with the HOA board regarding the fence that the Austins built. She was unaware that Mr. Austin had received HOA permission for the fence as she had never
been notified of the request.
A few days prior to the HOA meeting, Mrs. Plese
visited a website that she identified as www.mylife.com. She paid a fee for a background check on the
Austins. The website provided information that Linda
Austin had a criminal record in Red River County,
Texas. The date of the offense was listed as 08-052006 and the offense is listed as Deadly Conduct. The
level is identified as “misdemeanor” and the disposition is identified as “sentenced”.
Ms. Plese admits that she took information of the
arrest to the October board meeting and showed the
information to the HOA board. While at trial, Mrs.
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Plese denied any knowledge that her conduct upset
Mrs. Austin. In her deposition, she testified that she
was aware the Austins were unhappy. She further
testified that she could tell they were not happy right
after Mrs. Plese tried to discuss the results of the
background check report. (Exhibit 7, Plese Deposition
designation, page 121).
At some point, Mrs. Plese took it upon herself to
look up the statute in Texas for deadly conduct. She
testified that she thought the statute indicated that
the offense involved the use of a gun based on her review of the statute but admitted that she is not a lawyer and did not consult a lawyer for an interpretation
of the statute. The Court takes judicial notice of the
Texas statute at issue. Deadly conduct with a gun is
a felony. Deadly conduct with an instrumentality, in
Mrs. Austin’s case, a vehicle, can be a misdemeanor
offense. The “mylife” search by Mrs. Plese indicated
that Ms. Austin plead guilty to a misdemeanor charge
of deadly conduct.
Mrs. Plese admits that she made the June 1, 2020
posts on Facebook regarding the Austins.
Mrs. Plese testified that on several occasions before the June 1, 2020, the police were called. At one
point, after she had called the police, she testified that
Mr. Austin had prevented workman from parking in
the cul de sac and was cursing the workers. Mrs. Austin affirmed a video of what has been designated by
the parties as the boat incident. Someone was backing
a trailer with a boat out of her driveway and was not
doing so very successfully. Mrs. Plese moved some of
the cones that had been placed in the cul de sac by Mr.
Austin. She states that she was verbally attacked by
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Ron Austin who called her white trash and cussed at
her. There was no physical assault by Mr. Austin.
Mrs. Plese also acknowledges that she was aware
of the issues Mrs. Austin had with anxiety and stress
and even indicated that at some point she was concerned enough about Mrs. Austin that she contacted
a friend to keep an eye on her because she was concerned Mrs. Austin might be suicidal.
Legal Analysis and Conclusions
The tort of defamation includes libel and slander.
Slander is the speaking of defamatory words and libel
is the publishing of defamatory words. To establish a
prima facie case of defamation, a plaintiff must prove
that: (1) a party published a statement; (2) with
knowledge that the statement was false and defaming
to the other; or (3) with reckless disregard for the
truth of the statement or with negligence in failing to
ascertain the truth of the statement. Hibdon v.
Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005)
(citations omitted). There was no testimony that either Mr. or Mrs. Austin were public figures, therefore
this Court finds that this is a claim for defamation to
a “private figure” case and did not involve speech of
public concern. T.P.I.—Civil 7.02, see comments regarding ordinary, non-privileged defamation.
In this case, it is acknowledged that the statements at issue were published by Mrs. Plese to her
Facebook account. There was undisputed testimony
that Mrs. Plese has more than 2000 followers on Facebook. Mrs. Plese was an active participant on Facebook. The Court finds that the statements were published to third parties. Brown v. Christian Bros.
Univ., 428 S.W.3d 38, 50-52 (Tenn. Ct. App. 2013).
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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. Stones River Motors, Inc. v. MidSouth Publ’g Co., 651 S.W.2d 713, 719 (Tenn. Ct. App
1983) (citations omitted). See also, T.P.I.--Civil 7.01
“Defamation” Defined. (22nd edition, Sept. 2022).
Damages from false and misleading statements
cannot be presumed; actual damages must be sustained and proved. Davis v. Tennessean, 83 S.W.3d
125, 128 (Tenn. Ct. App. 2001). The Court must determine whether the record contains any material evidence of impairment of reputation and standing in the
community, personal humiliation, or mental anguish
and suffering. Murray v. Lineberry, 69 S.W.3d 560,
564 (Tenn. Ct. App. 2001).
Truth is a defense to a defamation claim.
The tort of false light was recognized as a separate tort by the Tennessee Supreme Court in the case
of West. v. Media General Convergence, Inc., 53
S.W.3d 640 (Tenn. 2001). One who gives publicity to
a matter concerning another that places the other before the public in a false light is subject to liability if
the false light would be highly offensive to a reasonable person and the actor had knowledge or acted in
reckless disregard as to the falsity of the publicized
matter. Id. at 643-644. See also, Lee v. Mitchell, 2023
WL 5286117 (Tenn. Ct. App., Aug. 17, 2023). In a false
light claim, the facts may be true, but the angle from
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which the facts are presented, or the omission of certain material facts resulting in placing the plaintiff in
a false light. Id. at 646. The Court chose not to adopt
actual malice as the appropriate standard for false
light claims when asserted against a private individual about matters of private concern. In addition, our
Supreme Court recognized that the right to privacy is
a personal right. As such, it may not be asserted by a
member of the individuals family. Id. at 648 (citing
Section 6521 of the Restatement (Second) of Torts
(1977)). Damages for false light must be specifically
plead and proven. There must be actual damages, but
the plaintiff need not prove special or out-of-pocket
damages, as evidence of injury to standing in the community, humiliation, or emotional distress is sufficient. West, 53 S.W.3d at 648. Finally, the Court noted
that the plaintiff may proceed under the alternative
theories of libel or false light, or both although he or
she can have but one recovery for a single instance of
publicity. West, 53 S.W.3d at 647.
As a matter of law, the Court finds that the statement that “when servicemen or guest parked in the
cul de sac, they were cussed out by Ron Austin” to not
be defamatory and it did not meet the criteria to place
the Plaintiff Ron Austin in a fault light. They may
have been rude or disagreeable statements, but they
did not rise to the level of defamation and did not
cause a serious threat to Mr. Austin’s reputation.
As to the statement, “Linda Austin pleaded guilty
to the charge of Deadly Conduct in Texas. This explained my experience of being attacked in the cul de
sac by the Austin family”, the Court finds that the
first part of the statement is not defamatory because
it is true. However, since Mrs. Plese admitted in her
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deposition that she knew that Mrs. Austin was upset
by the disclosure of her criminal charges to the HOA
board, her further publication of the statement was
intended to paint the Plaintiff Linda Austin in a false
light. As to the second part, the Court finds that it is
neither defamatory nor place the Plaintiffs in false
light because it is admitted that Mr. Austin called
Mrs. Plese white trash and cursed at her in the cul de
sac which would be a verbal attack. There is no statement that Mrs. Plese states that she was physically
attacked by Mr. Austin and the Court declines to read
the word physical into the statement based upon the
testimony of the parties and the postings in Facebook.
As to the statement that “The criminal check revealed that Linda Austin has a criminal record in
Texas. They moved to Knoxville from Texas after she
was arrested for Deadly Conduct with use of a gun”,
the Court finds the statement to be defamatory and to
place Linda Austin in false light. The statement was
defamatory because it was made with reckless disregard of the truth because Mrs. Plese admitted that
she was not a lawyer and not capable of understanding the nuances of a criminal statute and she made no
effort to confirm the truthfulness of her statement.
She did however know from her background report
that Mrs. Austin pled to a misdemeanor charge and
not a felony charge.
The Court does not find the testimony of Mrs.
Plese to be credible that she did not understand who
could see her posts on Facebook.
The Court does not find the testimony of Mrs.
Plese to be credible when she testified that it did not
cross her mind that her post might harm someone in
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the Austin family. This is particularly true in light of
the known reaction of Mrs. Austin to the mug shot
display by Mrs. Plese at the HOA meeting and then
choosing to post to social media alleging a type of conviction without confirming the accuracy of the statement.
Damages
a. Damages for Linda Austin
The Court finds that Mrs. Plese defamed Mrs.
Austin based upon the statements that were
posted on Facebook. The Court finds that Mrs.
Austin proved $5100 in medical expenses.
The Court finds that Ms. Plese’s post on Facebook was distributed to all of her “friends” on Facebook and that Mr. Austin testified that based
upon his review of her account she had at least
2000 friends who would have had access to the
posting.
In addition, the Court finds that Mrs. Austin’s
testimony about the impact of the defamatory
statements to be credible. Her testimony was supported by the testimony of her husband and her
treating doctor and photographs that were used
to illustrate her life before the posting of statements by Mrs. Plese and her life after the posting.
She testified that the actions of Mrs. Plese triggered events from Mrs. Austin’s past. She testified that after the posting, she was embarrassed
and withdrawn and did not want to participate in
daily life. Her husband testified that when he
would leave to go out of town for business, he constantly worried that his wife was in such a dark
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place that she might be tempted to take her own
life. For a significant period of time, her doctor
testified that she had difficulty managing stress,
suffered insomnia, and suffered from moments of
despair and hopelessness. Although the Austins
are not seeking any economic damage from the
sale of their house in Knoxville and their subsequent move to Florida, it was clear that the move
was connected to Mrs. Austin’s relationship with
her neighbor and the impact on Mrs. Austin’s
well-being. The Court recognizes that Mrs. Austin
had preexisting mental health issues requiring
therapy visits, the visits increased, and the emotions were more intensified during a period of
time after the Facebook posting. Dr. Rigell testified that she was “isolating, experiencing nightmares and dissociative experiences” based on the
trauma caused by her neighbor.
Considering the notes provided by Dr. Rigell,
the testimony of Mrs. Austin and in consideration
of her pre-existing and continuing mental health
issues, the Court finds that the charges for Dr.
Brown between June of 2020 and December of
2021 and the treatment charges of Dr. Rigell from
June 2020 through February 2020 to be treatment causally related to the actions of Mrs. Plese.
Those medical expenses total $5100.00
Based upon an evaluation of the credibility or
the witnesses presented and the medical records,
the Court finds that Mrs. Austin is entitled to
damages for injury to her reputation and for emotional distress that were caused by the defamation of the Defendant. The Court awards damages
to Mrs. Austin in the amount of $5100.00 in
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medical expenses, $20,000.00 in damages to her
reputation and $25,000.00 for emotional distress
for a total compensatory award to Linda Austin in
the amount of $51,000.00.
In addition, the Court finds that Mrs. Austin
has presented clear and convincing evidence of
the malicious and reckless behavior of the Defendant in making the Facebook post. Mrs. Plese
was aware of the emotional distress caused by the
display of Mrs. Austin’s mugshot at the HOA
meeting in August of 2019, and without confirming the accuracy of a statement, she chose on June
1, 2020 to post to Facebook that Mrs. Austin had
been convicted of Dangerous Conduct with a gun
even though the report she received indicated a
conviction of Dangerous Conduct with an unidentified weapon. The Court finds that Mrs. Austin is
entitled to an award of punitive damages in the
amount of $25,000.00.
b. Damages for Ronald Austin
As previously, indicated the Court does not
find that Mr. Austin proved a defamatory statement was made about him.
However, Mr. Austin testified at length about
the significant impact of Mrs. Plese’s defamatory
Facebook post about his wife. Although a claim for
consortium was not specifically pled, the Court
notes that in discovery and in deposition he testified that an element of his damages was his consortium claim. He also testified at trial about the
impact of his wife’s depression and anxiety on his
life, including his fear of leaving her alone because of her depression.
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The Court finds that the pleadings should be
amended to conform to the evidence and include
Mr. Austin’s claim for a loss of consortium. The
Court finds that Mr. Austin is entitled to loss of
consortium damages in the amount of $20,000.00.
IT IS THEREFORE ORDERED, for all the
reasons set forth above, that Ronald and Linda
Austin are entitled to an award of Compensatory
Damages against the Defendant Angela Kay
Plese in the amount of SEVENTY-SIX THOUSAND DOLLARS ($76,000.00) and to an award of
Punitive Damages in favor of Linda Austin
against Angela Plese in the amount of TWENTYFIVE THOUSAND DOLLARS ($25,000.00); for a
total judgment in the amount of ONE HUNDRED
ONE THOUSAND DOLLARS ($101,000) plus,
statutory post-judgment interest. Costs are taxed
to the Defendant for which execution may issue.
Enter this 22 day of March, 2024
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APPENDIX C
FILED
08/07/2025
Clerk of the
Appellate Courts
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
RONALD AUSTIN ET AL. V. ANGELA KAY
PLESE
Circuit Court for Knox County
No. 3-198-20
_______________________________
No. E2024-00586-SC-R11-CV
_______________________________
ORDER
Upon consideration of the application for permission to appeal of Angela Kay Plese and the record before us, the application is denied.
PER CURIAM
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.