                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     May 23, 2007 Session

                       CHARLES FARMER v. DAVID HERSH

                    An Appeal from the Circuit Court for Madison County
                          No. C-04-508     J. S. Daniel, Sr. Judge



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


This is a defamation case. The defendant owned a minor league baseball team which played for the
City of Jackson, Tennessee. In 2002, the plaintiff, the mayor of Jackson, was negotiating with the
defendant team owners to purchase the baseball team on behalf of the city. Soon the plaintiff mayor
and the defendant owner became embroiled in a lawsuit related to the sale of the team. Two years
later, the plaintiff mayor filed the instant lawsuit, alleging that the defendant team owner had
defamed him by telling the media that the mayor was attempting to “steal” the team. After some
discovery, the defendant team owner filed a motion to dismiss for failure to state a claim. At the
hearing on the motion, the trial court noted that matters outside the complaint had been submitted
to the court, and it therefore treated the motion as one for summary judgment. The trial court granted
the motion, concluding that the statement allegedly made by the defendant team owner was not
defamatory, and that the plaintiff mayor had not presented sufficient proof of damages. The plaintiff
mayor now appeals. We affirm, concluding that the statement allegedly made is mere hyperbole and
not defamatory as a matter of law.

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

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

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

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

        Plaintiff/Appellant Charles Farmer (“Farmer”) has served as the Mayor of Jackson,
Tennessee, at all times relevant to this dispute.1 Defendant/Appellee David Hersh is the President
and principal shareholder of Professional Sports and Entertainment Association of Tennessee, Inc.
This corporation is the general partner of Professional Sports and Entertainment Association of
Tennessee, L.P. (“PSET”). Between 1996 and 2002, PSET was the owner of the West Tennessee
Diamond Jaxx, a Class “AA” minor league baseball team (“the Team”) affiliated with the Southern
League of Professional Baseball Clubs, Inc. Both Hersh and Farmer played integral roles in
relocating the Team from Memphis to Jackson in 1996. Hersh and Farmer worked together closely
while Hersh and/or PSET operated the Team in Jackson until PSET sold the Team in 2002.

        Apparently the contracts between the City of Jackson (“City”) and the Team’s owners
address the City’s option to purchase the Team from PSET under certain circumstances. In
connection with these agreements, in September 2002, the City and Farmer, in his official capacity
as Mayor, filed a lawsuit against Hersh and PSET in the Madison County Chancery Court, docket
number 60282 (“chancery court lawsuit”), alleging breach of contract and other theories of recovery
in connection with the ownership of the Team. Hersh and PSET filed counterclaims and third-party
complaints against the City. The substance of the chancery court lawsuit is not relevant to the issues
in this appeal. Suffice it to say, the proceedings in the chancery court lawsuit were highly
contentious.

      On December 7, 2004, Farmer, acting pro se, filed this defamation lawsuit against Hersh.
The complaint alleged that Hersh falsely accused Farmer of trying to “steal” the Team from its
owners:

         10. Within six (6) months of the filing of this Complaint, Hersh knowingly and
         repeatedly made false representations about Farmer’s intentions with respect to the
         Team. Specifically, Hersh represented to the media and others that Farmer attempted
         to ‘steal’ the Team from Hersh and/or PSET, L.P.

Farmer’s complaint asserted that Hersh knew of the falsity of his statement or acted with reckless
disregard for its falsity, and that he made the statement with the intent to harm Farmer’s reputation.
Hersh answered, denying the allegations, and filed a counterclaim and third-party complaint against
Farmer, individually and in his official capacity as the mayor of Jackson. Farmer answered Hersh’s
counterclaim and third-party complaint, filed a motion to dismiss the third-party complaint, and filed
a motion to strike the counterclaim and third-party complaint.




         1
           Farmer is a licensed attorney, and he represented himself during most of the proceedings below. The record
indicates that Farmer retained counsel for certain matters, but eventually took over the case and represented himself
through the grant of Hersh’s motion to dismiss.

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        Later, on May 2, 2005, Hersh filed a motion to dismiss for failure to state a claim upon which
relief could be granted, pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure.
Among other things, Hersh argued that, even if he had made the statement as alleged in Farmer’s
complaint, the statement was not defamatory as a matter of law. After that, both parties engaged in
discovery. The discovery included Farmer’s video deposition on August 11, 2005, and Hersh’s
deposition the next day. Hersh’s deposition was truncated; counsel for Hersh suspended the
deposition after two and a half hours of questioning by Farmer on the basis that Farmer’s questions
of Hersh were related only to the chancery court lawsuit, not the instant defamation lawsuit. Farmer
filed a motion to compel and for sanctions related to the suspension of Hersh’s deposition. On
August 26, 2005, Farmer filed another motion for sanctions against Hersh pursuant to Rule 11 of the
Tennessee Rules of Civil Procedure; this second motion for sanctions related to Hersh’s
counterclaim and third-party complaint.2

         On September 19, 2005, Farmer filed a motion for leave to file an amended complaint to
clarify certain allegations that were addressed in Hersh’s motion to dismiss. The complaint, as
Farmer sought to amend it, repeated the key allegation in the original complaint, that Hersh falsely
represented to the media and others that Farmer attempted to “steal” the Team from Hersh and/or
PSET, but added other explanatory statements.3 On November 7, 2005, Farmer filed a
“Memorandum Concerning All Motions Before the Court.” Farmer’s memorandum cited eight
motions that the parties had filed which had not yet been adjudicated, including Farmer’s motion to
compel discovery, Farmer’s motion for Rule 11 sanctions, Farmer’s motion for leave to file the
amended complaint, and Hersh’s motion to dismiss. Among other things, Farmer’s memorandum
asserted that the motions he had filed were ripe for adjudication, but that Hersh’s motion to dismiss
was not ripe because Farmer had sufficiently pled his allegations but had been denied discovery. He
claimed that “[q]uestions of damages and the meaning to be imputed from [Hersh’s] use of the word
‘steal’ are jury questions.” (Emphasis in original.)

       On January 18, 2006, Judge Donald H. Allen entered an order of recusal, determining that
no Jackson judge should hear the case. On February 9, 2006, the Honorable J. S. Daniel, Senior
Judge, was appointed to hear the case.

         On March 8, 2006, the trial court conducted a hearing on Hersh’s motion to dismiss for
failure to state a claim. The record on appeal does not include a transcript of that hearing. On April
13, 2006, the trial court entered an order on Hersh’s motion. The trial court explained in its order
that, because Hersh’s motion to dismiss was supplemented by memoranda, exhibits, and depositions
by the consent of both parties, the court had decided to treat Hersh’s Rule 12 motion as a Rule 56
motion for summary judgment. Considering the entire file as supplemented, the trial court found that
“the statement allegedly made by [Hersh] is not a defamatory statement in accordance with Kelly v.

         2
             In August 2005, Hersh filed a voluntary nonsuit as to his counterclaim and third-party complaint.

         3
          The amended complaint acknowledged that any defamatory remarks made during the course of legal
proceedings would not be actionable, asserting that “repeated libelous and slanderous allegations against [Farmer] which,
except for judicial immunity, would be actionable.”

                                                           -3-
Tomlinson . . . and McCluen v. Roane County Times, Inc., 936 S.W.2d 936 (Tenn. Ct. App. 1996).”
The trial court also found that Farmer had failed to submit any evidence of damages resulting from
the allegedly defamatory statement. Based on these findings and its determination that no issues of
material fact existed for the jury’s consideration, the trial court granted summary judgment in favor
of Hersh. Farmer filed a motion to alter or amend the trial court’s decision claiming, among other
things, that he was not given proper notice that Hersh’s motion to dismiss would be considered as
a summary judgment motion. On August 8, 2006, the trial court entered an order denying Farmer’s
motion to alter or amend. Farmer now appeals.

       On appeal, Farmer argues that the trial court erred in permitting Hersh to convert his motion
to dismiss into one for summary judgment without enforcing the procedural requirements set out in
Rule 56. He claimed that, at the time Hersh’s motion was heard, he had not yet completed discovery,
and that he should have had the opportunity to do so before consideration of a summary judgment
motion. Farmer further argues that, even if the trial court’s consideration of Hersh’s motion as one
for summary judgment was proper, the trial court erred in granting summary judgment in favor of
Hersh.

        Whether the trial court erred in treating Hersh’s motion to dismiss as one for summary
judgment is a question of law subject to de novo review with no presumption of correctness in the
trial court’s decision. The trial court’s grant of summary judgment is also reviewed de novo with
no presumption of correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ.
P. 56.04. We must view the evidence in a light most favorable to the nonmoving party, giving that
party the benefit of all reasonable inferences. Warren, 954 S.W.2d at 723 (quoting Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). Once the moving party demonstrates that no genuine issues of
material fact exist, the non-moving party must demonstrate, by affidavits or otherwise, that a
disputed issue of material fact exists for trial. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993).

         Farmer first argues that the trial court erred in treating Hersh’s motion to dismiss as a motion
for summary judgment without giving him fair notice that the motion would be treated as such. In
its final order, the trial court explained its reason for treating Hersh’s motion as one for summary
judgment, noting that the motion to dismiss had “been supplemented by memorandums, exhibits and
depositions by consent of both parties such that it should be disposed of as a Rule 56 Motion for
Summary Judgment, Tenn. R. Civ. P.”

       Treating a Rule 12 motion to dismiss as a Rule 56 motion for summary judgment under these
circumstances is authorized by Rule 12.02, which provides in pertinent part:

        If, on a motion . . . to dismiss for failure to state a claim upon which relief can be
        granted, matters outside the pleading are presented to and not excluded by the court,
        the motion shall be treated as one for summary judgment and disposed of as provided


                                                  -4-
        in Rule 56, and all parties shall be given reasonable opportunity to present all
        material made pertinent to such a motion by Rule 56.

Tenn. R. Civ. P. 12.02 (emphasis added). Thus, under the rule, a motion to dismiss must be treated
as a motion for summary judgment when matters outside the complaint are submitted and are not
excluded by the court, provided that all parties are given a “reasonable opportunity” to present all
relevant material. The failure to comply with the specifics of Rule 56, such as the requirement of
filing a statement of undisputed facts, is rendered harmless if the record shows that the nonmoving
party could not have remedied a defect that is fatal to his cause of action. See Brick Church
Transmission v. S. Pilot Ins. Co., 140 S.W.3d 324, 329 (Tenn. Ct. App. 2003).

        On appeal, Farmer argues that he was “ambushed” at the hearing on Hersh’s motion to
dismiss because he was given no advance notice that the motion would be treated as one for
summary judgment. He claims that he was not given a “reasonable opportunity” to present all
material relevant to the motion for summary judgment, as mandated under Rule 12.02. Farmer notes
specifically that he had filed a motion to compel the continuation of Hersh’s deposition, but his
motion had not yet been resolved by the trial court. The evidence obtained from Hersh’s deposition,
he argues, would have been sufficient to create a genuine issue of material fact regarding his
defamation claim. Farmer also claims that he had not completed his discovery on the issue of
damages, and that the premature grant of summary judgment in favor of Hersh deprived him of the
opportunity to do so.

         In this case, it is undisputed that both parties submitted matters outside the complaint for the
trial court’s consideration in deciding Hersh’s motion to dismiss. The items submitted by the parties
were not excluded by the trial court. Under these circumstances, the trial court was not only
authorized to treat the motion as one for summary judgment, it was required to do so under Rule
12.02. Nevertheless, Farmer contends on appeal that he was given no notice of the trial court’s
decision to treat Hersh’s motion as one for summary judgment, and that he was precluded from
gathering additional evidence through discovery. Had he been permitted to do so, he contends, the
trial court would not have granted Hersh’s motion. Thus, he contends, the trial court erred in not
giving him a “reasonable opportunity to present all material made pertinent to [Hersh’s] motion by
Rule 56,” as required under Rule 12.02.

        As noted above, the failure to permit further discovery is rendered harmless if the fatal defect
could not have been remedied by permitting further discovery. See Brick Church, 140 S.W.3d at
329. In this case, the trial court’s grant of summary judgment was based on its determination that
the statement allegedly made by Hersh was not a defamatory statement, and that Farmer failed to
submit evidence of any damages. Putting aside for the time being the issue of damages, no amount
of discovery would have shed any light on whether the alleged statement that Farmer attempted to
“steal” the Team from Hersh was defamatory. That decision must be made from examining the
statement itself, without anything more. Consequently, we examine first the trial court’s finding that
the allegedly defamatory statement was not defamatory as a matter of law.



                                                  -5-
        In order to establish defamation, Farmer must show that Hersh published a false statement
that defamed Farmer. Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).4
In any defamation case, the statement at issue must be injurious to the plaintiff’s character or
reputation. Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). “The words must
reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule.” Stones
River Motors, Inc. v. Mid-South Publishing Co., 651 S.W.2d 713, 720 (Tenn. Ct. App. 1983).
Mere hyperbole or exaggerated statements intended to make a point are not actionable defamatory
statements. See McCluen, 936 S.W.2d at 941-42.

         In McCluen, cited by the trial court, the plaintiff was the county attorney. He sued the
defendants, a local publication and its owner/publisher, for defamation based on two published
editorial comments. The two comments, in essence, criticized the plaintiff and the other county
commissioners for entering into a “sweet-heart deal” with a local business; the defendants apparently
felt that the “deal” was not in the best interest of the county. See id. at 938-39. The defendants’
articles also asserted that the plaintiff and the county commissioners, rather than addressing the
public’s concerns at their budget meeting, entered into “a harangue attacking [the defendant] for
telling the truth about them and their deal” with the local business. Id. at 938. The articles stated
that the plaintiff had engaged in “braggadocio swagger and bluster” about suing the defendants, and
referred to the defendant and commissioners as a “gang of six” whose activities were reminiscent
of “the days of the Nixon White House.” Id. The case went to trial before a jury. At the conclusion
of the plaintiff’s proof, the trial court directed a verdict in favor of the defendants, finding that the
statements in the articles were not defamatory. The plaintiff county attorney appealed. The appellate
court affirmed the trial court’s decision. The McCluen court determined that the defendants’
characterizations of the plaintiff and the county commissioners were permissible hyperbole, such as
those documented in Stones River Motors, supra. It cited the holding in Stones River Motors that
comments that someone committed “pure highway robbery” or “ripped-off” another did not
constitute actionable defamation, but were mere hyperbole. The McCluen court also cited numerous
illustrative cases from other jurisdictions:

       The comments and characterizations involved here, such as “pure highway robbery”
       and “rip-off,” fit precisely the rationale of [Greenbelt Cooperative Publishing Ass’n,
       Inc. v. Bresler, 398 U.S. 6 (1970)], [Old Dominion Branch No. 496 v. Austin, 418
       U.S. 264 (1974)] and § 566 of the Restatement. These are clearly characterizations
       of the facts set forth in the letter, and do not imply the existence of undisclosed
       defamatory facts. Thus, these authorities are controlling. See also Orr v. Argus-Press
       Co., 586 F.2d 1108 (6th Cir. 1978) (use of the word “swindle” to characterize the
       plaintiff's violation of Michigan's Blue Sky law, while “ill chosen” held not
actionable); Fram v. Yellow Cab Co. of Pittsburgh, 380 F. Supp. 1314, 1329 (W.D. Pa. 1974)
(statement that the plaintiff’s previous statements reflect “the sort of paranoid thinking that you get


         4
           Because Farmer, as the City’s Mayor, is a public figure, he was also required to prove that Hersh acted with
malice, i.e., that he knew the statement to be false or acted with reckless disregard for its falsity. See Press, Inc. v.
Verran, 569 S.W .2d 435, 441 (Tenn. 1978).

                                                          -6-
from a schizophrenic” held not actionable, because it would be understood as mere “rhetorical
hyperbole”); Reoux v. Glenn [Glens] Falls Post Co., 18 Misc.2d 1097, 190 N.Y.S.2d 598, 600-01
(N.Y. Sup. Ct. 1959) (statement that plaintiff's refusal to tell a court the whereabouts of certain
money was “contumacious conduct” was not actionable, because it simply expressed an opinion that
the plaintiff was “stubborn or contrary or obstinate or disobedient”); Schy v. Hearst Pub. Co., 205
F.2d 750 (7th Cir. 1953) (charging the plaintiffs with “gestapo-like” tactics not actionable, because
it was merely “a somewhat rhetorical way of saying that their conduct was dictatorial”); Bleecker v.
Drury, 149 F.2d 770 (2nd Cir. 1945) (statement that a lawyer had committed “a fraud upon the
court” was merely a “bombastic characterization of the plaintiff’s maneuvers” in representing his
client, and was not actionable as libel); Williams v. Rutherford Freight Lines, Inc., 10 N.C. App. 384,
179 S.E.2d 319, 323 (N.C. App. 1971) (statement in the course of a labor dispute that the plaintiffs
were “gangsters” is “nothing more than vituperation or name calling” and is not actionable); Heft
v. Burk, 302 So.2d 59, 60 (La. App. 1974) (statement that the plaintiff was “pirating” employees
away from the defendant and that his actions were “totally unethical” merely expressed the
defendant’s strong opinion concerning the plaintiff’s attempts to hire employees away from him, and
were not actionable); Brown v. Newman, 224 Tenn. (2 Pack.) 297, 454 S.W.2d 120 (1970) (statement
“have the skids been greased at city council?” not actionable).

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

        In this case, Farmer’s complaint asserts that Hersh defamed him by saying that “Farmer
attempted to ‘steal’ the Team from Hersh.” This is an obvious exaggeration intended to emphasize
that Farmer wanted to purchase the team for far less than what Hersh considered to be fair market
value. This statement is similar to an assertion that Farmer was “swindling,” “ripping-off,” or
“pirating” the Team from Hersh. In this context, such terminology can only be characterized as
“mere hyperbole”or a figure of speech used to make a point. Therefore, assuming the truth of
Farmer’s allegation that Hersh “represented to the media and others that Farmer attempted to ‘steal’
the team from Hersh,” we find that such a statement constituted non-actionable, permissible
hyperbole and was not defamatory as a matter of law. See McCluen, 936 S.W.2d at 941. This
holding pretermits all other issues raised in this appeal, and we conclude that the trial court did not
err in granting summary judgment in favor of Hersh.

      The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant Charles
Farmer and his surety, for which execution may issue, if necessary.



                                                       ___________________________________
                                                       HOLLY M. KIRBY, JUDGE




                                                 -7-
