               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               February 3, 2014 Session

      CHARLES NARDONE v. LOUIS A. CARTWRIGHT, JR., ET AL.

                   Appeal from the Circuit Court for Knox County
                      No. 1-664-11     Dale Workman, Judge


              No. E2013-00522-COA-R3-CV-FILED-MARCH 17, 2014


Charles Nardone (“Plaintiff”) sued Louis A. Cartwright, Jr. and Cartwright Communication
Technology, Inc. (“CCT”) alleging, among other things, slander and libel. During trial,
defendants moved for a directed verdict, which the Trial Court granted by order entered
December 6, 2012. Plaintiff appeals the dismissal of his claim for libel. We find and hold
that Plaintiff failed to prove libel, and we affirm.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Eric C. Vinsant, Knoxville, Tennessee, for the appellant, Charles Nardone.

R. Deno Cole, Knoxville, Tennessee, for the appellees, Louis A. Cartwright, Jr. and
Cartwright Communication Technology, Inc.
                                             OPINION

                                            Background

               In August of 2008, Plaintiff accepted employment with CCT, a company which
“sells, leases, installs, and repairs communication devices for 911 centers, ambulances,
polices [sic] vehicles, rescue squads, etc.”1 During Plaintiff’s employment with CCT,
Plaintiff was required to wear uniforms provided by an outside uniform company. A contract
between CCT and the uniform company provided that the uniforms supplied to CCT’s
employees remained the property of the uniform company.

             Plaintiff tendered to CCT a written resignation of his employment on March
24, 2011. Plaintiff requested his final paycheck and was told he would not receive the
paycheck until it was prepared on the Monday following the end of the pay period, which
would have been Monday, March 28, 2011. Plaintiff went to CCT’s offices on Monday,
March 28, 2011, and Plaintiff was informed by the office manager that he would not receive
his paycheck until he turned in his uniforms.

               On March 28, 2011 at 7:33 p.m. Plaintiff sent Mr. Cartwright an email
requesting his final paycheck and amounts that had been withheld from his paychecks for
uniform deductions. On March 29, 2011 Plaintiff went to CCT’s offices to exchange his
uniforms for his paycheck and was told by the office manager that Mr. Cartwright had
Plaintiff’s paycheck and that Mr. Cartwright was not in the office. Plaintiff planned to return
to CCT’s offices at a later time to exchange the uniforms for his paycheck.

              On March 29, 2011, CCT’s office manager contacted the Tennessee
Department of Labor and was told that CCT had to issue Plaintiff his final paycheck within
21 days of Plaintiff’s last day of employment, and that CCT could not withhold the paycheck
pending Plaintiff’s return of the uniforms. The office manager was advised to contact the
police to seek assistance in getting Plaintiff to return the uniforms. CCT’s office manager
informed Mr. Cartwright about her conversation with the Tennessee Department of Labor
employee. Mr. Cartwright then called the Knox County Sheriff’s Office (“Sheriff’s Office”)
on March 30, 2011 to seek assistance in getting the uniforms.

              Cathy Norris, an officer with the Sheriff’s Office, took Mr. Cartwright’s
telephone call. Officer Norris then keyed in the data to create a report (“the Report”). The


       1
        The record on appeal does not contain a transcript, but does contain a Statement of the Evidence
approved by the Trial Court. The facts discussed in this Opinion are taken from the Statement of the
Evidence.

                                                  -2-
evidence shows that people who call the Sheriff’s Office are not made aware that reports are
made electronically or in writing and that these reports may be accessible to the public. The
Report created states on page one in the section labeled “Primary Offense” that the offense
was “THEFT FROM BUSINESS BY EMPLOYEE.” The language “THEFT FROM
BUSINESS BY EMPLOYEE” was not language used by Mr. Cartwright, but was based
upon a code selected by Officer Norris.

             After the Report was keyed in, Detective Shipley was assigned to the case.
Detective Shipley contacted Plaintiff on March 31, 2011 and requested Plaintiff to return the
uniforms to CCT. Plaintiff agreed to do so. Plaintiff admitted that Detective Shipley never
told him he was being arrested or prosecuted or that a criminal warrant had been sworn out
against him by anyone. After speaking with Plaintiff, Detective Shipley spoke with Mr.
Cartwright on March 31, 2011 and told him that Plaintiff intended to return the uniforms.

               On April 1, 2011 Plaintiff’s attorney returned the uniforms to the uniform
company, rather than to CCT. Mr. Cartwright called the Sheriff’s Office on April 1, 2011
to report that Plaintiff had returned the uniforms to CCT’s satisfaction. Detective Shipley
updated the Report on April 1, 2011 to reflect that the uniforms had been returned, at which
point Detective Shipley considered the case resolved and closed.

                Detective Shipley testified at trial that Mr. Cartwright never requested that
Plaintiff be prosecuted and never specifically stated that Plaintiff was guilty of theft. The
narrative contained in the Report contains no indication that Mr. Cartwright accused Plaintiff
of any crime. Plaintiff admitted that nothing in the narrative of the Report was untrue. No
proof was produced that Mr. Cartwright knew that an electronic or written report was being
made when he spoke with the officers from the Sheriff’s Office. There was no proof
presented at trial that the copy of the Report entered as an exhibit at trial, which was obtained
by Plaintiff, represented a copy of what another member of the public could obtain if seeking
a report from the Sheriff’s Office.

              Plaintiff testified that he has maintained his employment with his current
employer since he left CCT’s employ and further testified that his current income is greater
than when he worked for CCT. Plaintiff admitted that he has sought no psychological or
medical treatment as a result of the defendants’ actions. Plaintiff offered no proof at trial that
his reputation was damaged. Plaintiff admitted that he was not a member of any church,
civic organization, non-profit board, or a volunteer for any organization, and admitted that
he could not name one person other than his wife and CCT’s employees who even were
aware of the Report. Plaintiff admitted that he has a good marriage and that his reputation
with his wife was not harmed by the Report. Plaintiff could not name one person who
thought less of him as a result of this case.

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              During trial, defendants moved for a directed verdict, which the Trial Court
granted by order entered December 6, 2012. In its December 6, 2012 Order and Final
Judgment, the Trial Court specifically found and held, inter alia, “there is no material
evidence in the record to prove a case of libel and any evidence to prove a case for slander
would be barred by the six (6) month statute of limitations.” Plaintiff appeals to this Court
the dismissal of his claim for libel.

                                                 Discussion

               Although not stated exactly as such, Plaintiff raises one issue on appeal:
whether the Trial Court erred in granting defendants’ motion for directed verdict on
Plaintiff’s claim for libel.2

            Our Supreme Court discussed the standard under which an appellate court must
review a motion for a directed verdict in Johnson v. Tennessee Farmers Mut. Ins. Co.,
stating:

              In reviewing the trial court’s decision to deny a motion for a directed
       verdict, an appellate court must take the strongest legitimate view of the
       evidence in favor of the non-moving party, construing all evidence in that
       party’s favor and disregarding all countervailing evidence. Gaston v. Tenn.
       Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). A motion for a
       directed verdict should not be granted unless reasonable minds could reach
       only one conclusion from the evidence. Id. The standard of review applicable
       to a motion for a directed verdict does not permit an appellate court to weigh
       the evidence. Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978). Moreover,
       in reviewing the trial court’s denial of a motion for a directed verdict, an
       appellate court must not evaluate the credibility of witnesses. Benson v. Tenn.
       Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993).
       Accordingly, if material evidence is in dispute or doubt exists as to the
       conclusions to be drawn from that evidence, the motion must be denied.
       Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn. Ct. App.
       1995).

Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn. 2006).

            “A libel action involves written defamation and a slander action involves
spoken defamation. The basis for an action for defamation, whether it be slander or libel, is

       2
           Plaintiff raised no issues on appeal regarding his other claims, including his claim for slander.

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that the defamation has resulted in an injury to the person’s character and reputation.”
Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994).
In Sullivan v. Baptist Mem. Hosp., our Supreme Court explained:

               To establish a prima facie case of defamation in Tennessee, the plaintiff
       must establish that: 1) a party published a statement; 2) with knowledge that
       the statement is 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. See Restatement (Second) of Torts § 580 B (1977); Press,
       Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978). “Publication” is a term of
       art meaning the communication of defamatory matter to a third person.
       Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn.
       1994).

Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569, 571-72 (Tenn. 1999).

              In Davis v. The Tennesseean, this Court discussed damages in a defamation
case as follows:

       “[T]he basis for an action for defamation, whether it be slander or libel, is that
       the defamation has resulted in an injury to the person’s character and
       reputation.” Quality Auto Parts, 876 S.W.2d at 820. To be actionable, the
       allegedly defamatory statement must “constitute a serious threat to the
       plaintiff’s reputation.” Stones River Motors, Inc. v. Mid-South Publ’g Co., 651
       S.W.2d 713, 719 (Tenn. Ct. App. 1983). Damages from false or inaccurate
       statements cannot be presumed; actual damage must be sustained and proved.
       Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 416, 419 (Tenn. 1978).

Davis v. The Tennesseean, 83 S.W.3d 125, 128 (Tenn. Ct App. 2001)(emphasis added).

               Similarly, in McLeay v. Huddleston, this Court affirmed the granting of
summary judgment to the defendants because the plaintiff failed to establish any injury as a
result of the defamatory statements. In reaching this conclusion, we noted that:

       [T]his Court has held that the plaintiff must show that her standing in the
       community and her public reputation for character has been injured by the
       alleged defamatory statement and that as a result she suffered real or actual
       damages due to that loss of standing or reputation.




                                               -5-
McLeay v. Huddleston, No. M2005-02118-COA-R3-CV, 2006 Tenn. App. LEXIS 655, at
*26 (Tenn. Ct. App. Oct. 6, 2006), Rule 11 perm. app. denied Feb. 26, 2007.

              The statement that Plaintiff claimed was defamatory was the Report. To
continue our analysis, we again note that the record on appeal contains no transcript of the
trial. Furthermore, we note that the record shows that Plaintiff submitted a proposed
statement of the evidence, which the Trial Court specifically rejected. Instead, the Trial
Court modified a statement of the evidence prepared by defendants and then approved and
adopted defendants’ statement of the evidence. In his brief on appeal, Plaintiff argues facts
which do not appear within the Statement of the Evidence approved and adopted by the Trial
Court. As there is no transcript in the record on appeal, we are constrained by the evidence
contained within the Statement of the Evidence as approved and adopted by the Trial Court.

               Even assuming solely for purposes of this appeal that the narrative of the report
qualified as a written statement by Mr. Cartwright, taking the strongest legitimate view of
the evidence in favor of Plaintiff, construing all evidence in Plaintiff’s favor and disregarding
all countervailing evidence, as we must, we still find that Plaintiff failed to produce any
evidence that Mr. Cartwright published any untrue statement about Plaintiff with knowledge
that the statement was false and defaming to Plaintiff, or with reckless disregard for the truth
of the statement, or with negligence in failing to ascertain the truth of the statement. Plaintiff
himself admitted that the statements Mr. Cartwright made, which were reflected in the
narrative of the Report, were true. The evidence shows that the portion of the Report which
states “THEFT FROM BUSINESS BY EMPLOYEE” was not language used by Mr.
Cartwright or a statement made by Mr. Cartwright, but was based upon a code selected by
Officer Norris.

                Furthermore, the evidence in the record on appeal shows that Plaintiff suffered
no damages as a result of the statements made in the Report. Plaintiff testified that he has
maintained his current employment since he left CCT and further testified that his income
now is more than when he worked at CCT. Plaintiff admitted that he has sought no
psychological or medical treatment as a result of the defendants’ actions. He offered no
proof at trial that his reputation was damaged. Plaintiff admitted that he was not a member
of any church, civic organization, non-profit board, or a volunteer for any organization, and
admitted that he could not name one person other than his wife and CCT’s employees who
were aware of the Report. Plaintiff admitted that he has a good marriage and that his
reputation with his wife was not harmed by the Report. Plaintiff could not name one person
who thought less of him as a result of the Report. The record on appeal simply is devoid of
any evidence of damages.




                                               -6-
                                        Conclusion

              Given all of the above, we find no error in the Trial Court’s December 6, 2012
order granting defendants’ motion for directed verdict. The judgment of the Trial Court is
affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The
costs on appeal are assessed against the appellant, Charles Nardone, and his surety.


                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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