                                                                                          07/23/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 April 13, 2017 Session

         JEFFERY TODD BURKE v. SPARTA NEWSPAPERS, INC.

                   Appeal from the Circuit Court for White County
                     No. CC-2605        Amy V. Hollars, Judge
                      ___________________________________

                           No. M2016-01065-COA-R3-CV
                       ___________________________________


The trial court granted summary judgment to defendant publisher of an allegedly
defamatory newspaper article concerning plaintiff. The article was based upon a one-on-
one, private interview between the public information officer for the White County
Sheriff’s Office and a newspaper reporter. The court determined that the interview given
by the public information officer constituted an “official action” of government that the
article fairly and accurately reported. As such, the court concluded that any alleged
defamatory statements included in the article were privileged under the common-law
“fair report privilege.” Plaintiff appealed, arguing in part, that the fair report privilege
does not apply. Because we conclude that the interview did not constitute an official act
of government, we reverse the grant of summary judgment.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

W. I. Howell Acuff, Cookeville, Tennessee, for the appellant, Jeffery Todd Burke.

Philip M. Kirkpatrick, Lucian T. Pera, and J. Bennett Fox, Jr., Nashville, Tennessee, for
the appellee, Sparta Newspapers, Inc.
                                                OPINION

                                                     I.

       On January 30, 2014, The Expositor published an article in its online and print
editions written by Pamela Claytor. The article reported on the indictment and arrest of
Jeffery Todd Burke.

       According to Ms. Claytor’s article,1 Mr. Burke acted as the middleman between a
local youth football league and a fundraising company, which provided cookie dough for
use in fundraising. The article reported that, after the football league gave him
approximately $16,000 from pre-sales of cookie dough, Mr. Burke failed to turn the
funds over to the fundraising company. And the football league never received the
cookie dough. The article also reported that Mr. Burke was arrested in White County on

      1
          The article read in full:

                               Man indicted for theft of money from fundraiser

               A man who had been indicted in Smith County for allegedly stealing $11,000 in
      fundraising collections from a youth football league last fall has now been indicted in
      White County on similar allegations.
               According to the case’s lead investigator, Detective Chris Isom of the White
      County Sheriff Department, in August 2013, Jeffery Todd Burke, of Cookeville, who
      served as a middleman between the Warrior Football League and a fundraiser company,
      took a large sum of money, reportedly more than $16,000 from the league that was
      supposed to be turned over to the fundraiser company for cookie dough the football
      players sold to raise money for the team.
               The league, however, never received the cookie dough they had sold and
      collected money for.
               In October, around the same time that Burke was indicted in Smith County, Det.
      Isom, along with Det. John Meadows and Deputy Will Whitson, began investigating the
      case for White County.
               In the course of the investigation, Det. Isom says the officers discovered Burke
      had misappropriated more than $16,000 that had been given to him to pay for the cookie
      dough, and never turned that money over to the fundraiser company.
               At the January meeting of the Grand Jury, Burke was indicted for theft over
      $10,000.
               He was arrested on Jan. 24, 2014, and booked into the White County jail. He
      was released on $10,000 bond.
               Det. Isom says the Warrior Football League has been very cooperative with the
      investigation.
               “We are happy with the case,” Det. Isom said. “We are trying to get justice for
      these kids. It’s a shame that kids have to learn a lesson like this so early.”


                                                     2
January 24, 2014, and then released on bond. The article further noted that Mr. Burke
had previously been indicted on similar charges in Smith County, Tennessee.

      Ms. Claytor’s sole source for the article was Chris Isom, a detective and the public
information officer for the White County Sheriff’s Office. Ms. Claytor conducted a one-
on-one telephone interview with Detective Isom just prior to the article’s publication.

       Mr. Burke’s counsel contacted the newspaper reporter shortly after the article was
published, informing Ms. Claytor that the football league “did, in fact, receive everything
that was ordered.” In response to communications from the attorney, the editor of the
paper acknowledged that the article incorrectly reported the amount of the money
involved and stated that the newspaper would “print a clarification noting that
correction.” But, because Detective Isom verified that the other information reported was
accurate, the newspaper stood by the remainder of the story.

       On January 30, 2015, Mr. Burke filed suit against Sparta Newspapers, Inc., the
publisher of The Expositor, in the Circuit Court for White County, Tennessee. Mr. Burke
complained that both the print and online editions of the article contained three “errors of
fact that cast Plaintiff in a false light and are damaging to his personal and vocational
reputation”: (1) the amount of money involved; (2) the fact that the cookie dough was
never delivered; and (3) the fact that Mr. Burke never delivered the collected funds to the
fundraising company. According to Mr. Burke, his performance under the contract “was
delayed,” but the cookie dough was ultimately delivered more than two months before
the case against him was presented to the grand jury.

       Sparta Newspapers moved for summary judgment.                 As grounds, Sparta
Newspapers asserted that it was immune from liability because the article was a fair and
accurate report of official statements made by Detective Isom in his capacity as the public
information officer for the Sheriff’s Office. As an additional ground for summary
judgment, Sparta Newspapers argued that Mr. Burke was a limited-purpose public figure
and that he had not pled nor could he prove actual malice.

       In response to the motion for summary judgment, Mr. Burke argued that the article
contained more information than Ms. Claytor would have received from the publicly
available grand jury bill. Mr. Burke also argued that the newspaper’s failure to “make
further inquiry . . . in the face of multiple emails from counsel” constituted actual malice.

       On April 19, 2016, the trial court entered a written order granting Sparta
Newspapers summary judgment and dismissing the case. The court concluded that a
conditional privilege applied as the article represented a report of an official act of
government, the official act being the one-on-one interview given by Detective Isom to
Ms. Claytor. The court further concluded that Mr. Burke failed to set forth facts

                                             3
demonstrating actual malice on the part of Sparta Newspapers.           Mr. Burke timely
appealed.

                                            II.

                                            A.

        Summary judgment may be granted only “if 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. The party moving for summary
judgment has “the burden of persuading the court that no genuine and material factual
issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v.
Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, “the
nonmoving party must then demonstrate, by affidavits or discovery materials, that there is
a genuine, material fact dispute to warrant a trial.” Id.

        In this case, the party moving for summary judgment does not bear the burden of
proof at trial. Consequently, “the moving party may satisfy its burden of production
either (1) by affirmatively negating an essential element of the nonmoving party’s claim
or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the nonmoving party’s claim or defense.” Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015), cert.
denied, 136 S. Ct. 2452 (2016). Satisfying this burden requires more than a “conclusory
assertion that summary judgment is appropriate,” rather the movant must set forth
specific material facts as to which the movant contends there is no dispute. Id.

       If a motion for summary judgment is properly supported, the nonmoving party
must then come forward with something more than the allegations or denials of its
pleadings. Id. at 265. The nonmoving party must “by affidavits or one of the other
means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment
stage ‘showing that there is a genuine issue for trial.’” Id. (quoting Tenn. R. Civ. P.
56.06).

        A trial court’s decision on a motion for summary judgment enjoys no presumption
of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary
judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at
763. Accordingly, we must review the record de novo and make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been met. Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d
at 763.

                                             4
                                                  B.

        Our review requires us to determine whether, based on the undisputed facts, the
fair report privilege applies to shield Sparta Newspapers from Mr. Burke’s claims.
Technically, the “privilege is an exception to the normal common-law rule rendering a
speaker liable for republication of another’s defamatory statement.”2 2 RODNEY A.
SMOLLA, LAW OF DEFAMATION § 8:3 Westlaw (database updated May 2018). It has
traditionally protected news media that “make reports of judicial proceedings to the
public, in order that members of the public may be apprised of what takes place in the
proceedings without having been present.” Smith v. Reed, 944 S.W.2d 623, 625 (Tenn.
Ct. App. 1996) (emphasis added).

        The fair report privilege allows the news media “to be the eyes and ears of the
members of the public who would have been able to witness the proceeding or obtain the
information had they been present to see or hear for themselves.” Lewis v. NewsChannel
5 Network, L.P., 238 S.W.3d 270, 285 (Tenn. Ct. App. 2007) (citing W. PAGE KEETON,
PROSSER AND KEETON ON THE LAW OF TORTS § 115, at 836 (5th ed. 1984)). It does not
exist merely to satisfy the public’s curiosity about what brings parties to court. Rather,
the privilege serves a supervisory function “to the end that the public may have the means
of knowing how the duties of their officers are performed, whether faithfully and
intelligently or otherwise.” Am. Publ’g Co. v. Gamble, 90 S.W. 1005, 1008 (Tenn.
1906); see also SMOLLA, supra, § 8:67 (“The reporter is a surrogate for the public,
permitting it to observe through the reporter’s eyes how the business of government is
being conducted.”).

       The privilege is qualified rather than absolute. Langford v. Vanderbilt Univ., 318
S.W.2d 568, 574 (Tenn. Ct. App. 1958). For the privilege to apply, the report must be “a
fair and accurate summation of the proceeding.” Smith, 944 S.W.2d at 625. The report
must be “fair” in the sense that it exhibits “balance and neutrality.” Id. The report should
not be “slanted or spun to convey an impression materially different from what took
place,” SMOLLA, supra, § 8:75, or include “defamatory observations or comments” by the
reporter. Lewis, 238 S.W.3d at 284.

      A report is “accurate” in the absence of “any false statement of fact regarding what
occurred during the proceeding.” Id. We have previously held that “[t]he report need not
be a verbatim” or “technically accurate account in every detail,” but the report must
“convey[ ] a correct and just impression of what took place.” Id.



        2
          The common law treats a republisher of defamatory words as a partner in crime with the
original defamer. See Saunders v. Baxter, 53 Tenn. 369, 381 (1871) (“The publisher of libelous words, in
the contemplation of law, is particeps criminis with the utterer.”).
                                                   5
        In Tennessee, the scope of the fair report privilege originally extended only as far
as “report[s] of the proceedings in a court of justice.” Saunders v. Baxter, 53 Tenn. 369,
381 (1871). Over the years, the scope has expanded to include reports of other matters.
We have applied the fair report privilege to reports of the “mere contents of pleadings
filed in Court,” Langford v. Vanderbilt Univ., 287 S.W.2d 32, 37 (Tenn. 1956), “public
meetings of local governmental bodies,” Evans v. Nashville Banner Pub. Co., No. 87-
164-II, 1988 WL 105718, at *5 (Tenn. Ct. App. Oct. 12, 1988), the “issuance of arrest
warrants,” Duncan v. Knoxville Journal Corp., No. 03A01-9202CV00059, 1992 WL
136172, at *1 (Tenn. Ct. App. June 19, 1992), the content of a deposition, Eisenstein v.
WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 323-24 (Tenn. Ct. App.
2012), and the content of a press release issued by a chief of police, Lewis, 238 S.W.3d at
286. Thus, our case law makes the scope of the privilege nearly coextensive with that
found in the Restatement (Second) of Torts, which extends the privilege to “report[s] of
an official action or proceeding or of a meeting open to the public that deals with a matter
of public concern.” RESTATEMENT (SECOND) OF TORTS § 611 (AM. LAW INST. 1977);
see also Lewis, 238 S.W.3d at 285.3

        But the privilege has not been extended “so far as to provide protection from
liability for fair and accurate reports of statements made by any governmental employee
in any circumstance.” Lewis, 238 S.W.3d at 285. Rather, it is applicable only “to
circumstances involving . . . proceedings or official actions of government that have been
made public.” Id. (emphasis added); see Grant v. Commercial Appeal, No. W2015-
00208-COA-R3-CV, 2015 WL 5772524, at *7 (Tenn. Ct. App. Sept. 18, 2015) (holding
that “the inclusion of certain investigatory interviews and descriptions clearly falls
outside of the scope of the fair report privilege because their ties to any official
proceedings are tenuous at best”).

       Here, the pivotal question is whether all or any portion of the newspaper article
reported information from an official action, an official proceeding, or a meeting open to
the public that dealt with a matter of public concern. Sparta Newspapers insists that the
privilege applies to Ms. Claytor’s entire story because the article was a fair and accurate
report of the statements Detective Isom made in his official capacity during a private,
one-on-one telephone interview. In an affidavit supporting Sparta Newspapers’ motion
for summary judgment, Detective Isom expounded on this point, stating that “[t]he article
accurately attributes to me the statements I made in my official capacity as a Detective
and Public Information Officer of the White County Sheriff’s Office.”




       3
          Unlike in Tennessee, the Restatement would not extend the fair report privilege to pleadings
before the court had taken some action on them. RESTATEMENT (SECOND) OF TORTS § 611 cmt. e (AM.
LAW INST. 1977).

                                                  6
       The trial court concluded that Detective Isom’s interview was an official action of
government. In doing so, the court analogized an interview given by a public information
officer to a press release, which we have previously held to be within the scope of the
privilege, or a press conference.

        The court also cited to several federal cases, some of which involved interviews,
addressing the fair report privilege. For example, in a 2003 case, Yohe v. Nugent, the
United States Court of Appeals for the First Circuit, applying Massachusetts law,
affirmed the grant of summary judgment to two newspapers based on the fair report
privilege. 321 F.3d 35, 44 (1st. Cir. 2003). The newspapers asserted the privilege
applied to articles based on interviews given by a chief of police. Id. at 42. Without
analysis, the court held that the newspaper articles squarely fell within the privilege
because the report of the police chief “was clearly an ‘official statement.’” Id. at 43.
And in a strikingly similar case to the one here, applying Connecticut law, a federal
district court held that an article based on an interview of a public information officer was
protected by the privilege. Bailey v. Corbett, No. 3:11-CV-1553, 2013 WL 994466, at
*2, *4 (D. Conn. Mar. 13, 2013). In that case, the public information officer was “the
designated police spokesperson” and “communicate[d] with members of the media to
provide public information about arrests and criminal investigations.” Id. at *2.

        Of the cases cited by the trial court, only one, Hudak v. Times Publishing Co. Inc.,
provided any detailed analysis of whether the printing of a comment, “not made in open
court or in a filed court paper,” was protected by the fair report privilege. 534 F. Supp.
2d 546, 568 (W.D. Penn. 2008). The comment in question was made by a prosecuting
district attorney during an interview with the defendant newspaper. Id.

        Relying on the “somewhat broad interpretation to the concept of ‘reports of an
official action or proceeding’” given by Pennsylvania courts, the court concluded that the
reported remarks of the district attorney should “be viewed as a ‘report’ of ‘official
action’ giving rise to a privileged occasion.” Id. at 572. The court found its conclusion
in keeping with the public supervision rationale behind the fair report privilege. The
district attorney was “an important elected public official” with “an indisputable
obligation to inform the public as to matters occurring within his office.” Id. So by
obtaining “an official comment on a pending criminal matter for the express purpose of
public dissemination and then publishing that information, [the newspaper reporter] was
furthering the public interest in ensuring ‘that those who administer justice should always
act under the sense of public responsibility and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which a public duty is performed.’” Id.
(quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)).

       The court rejected the plaintiff’s argument that the interview was too casual for the
privilege to apply. In doing so, it explained that “[t]he touchstone of the fair report
privilege seems to be whether there exist sufficient indicia of ‘officialdom’ in the
                                              7
reported communication.” Id. The court found the statements in the interview contained
such indicia; “though [the district attorney’s] remarks to [the newspaper reporter]
occurred in a casual setting, they constituted an official, on-the-record report concerning
governmental action undertaken within the scope of [the district attorney’s] office.” Id.

        In our view, the interview given by Detective Isom was not itself an official
action, official proceeding, or public meeting within the scope of the fair report privilege.
Our courts have not extended the fair report privilege so far as to include a private, one-
on-one interview as an official action. The requirement that official actions or
proceedings be open to the public serves the underlying rationale behind the privilege,
allowing the press to be “the eyes and ears of the members of the public who would have
been able to witness the proceeding or obtain the information.” Lewis, 238 S.W.3d at
285 (emphasis added); see also Gertz v. Robert Welch, Inc., 680 F.2d 527, 535 n.12 (7th
Cir. 1982) (“The interest served by the [fair report] privilege is the public’s right to know
and be informed of public proceedings.”) (emphasis added); David A. Elder, Truth,
Accuracy & Neutral Reportage: Beheading the Media Jabberwock’s Attempts to
Circumvent New York Times v. Sullivan, 9 VAND. J. ENT. & TECH. L. 551, 763-64 (2007)
(noting the nearly unanimous requirement under the common law for the proceeding or
report to be public or available to the public). We also find the cases relied upon by the
trial court unpersuasive.

1.     Report/Source Distinction

        The cases cited by the trial court overlook the distinction between reports of
official actions or proceedings on the one hand and sources within the government on the
other. See SMOLLA, supra, § 8:67 (“In both policy and doctrine a key distinction exists
between reports of official government action and reports of information provided by
official government actors.”). The public supervision rationale behind the privilege, “that
the reporter acts as the ‘eyes and ears’ of the public in reporting on a proceeding or
summarizing a public document,” has no application “when a reporter merely publishes a
story based in whole or in part on government sources.” Id. As one commentator
explained, “[r]eporting what the prosecutor or law enforcement officer said to a reporter
outside the courtroom during an interview is simply the routine use of a source.” Id.

       Certainly, reporters use sources for information on an official action, official
proceeding, or official meeting. See DAVID A. ELDER, DEFAMATION: A LAWYER’S
GUIDE § 3.2 Westlaw, (database updated July 2018) (referring to secondary or indirect
sources as an “accepted and justified custom and usage of the mass media”). And the fair
report privilege may still apply “where a reporter who purports to report on an official
proceeding does not have personal knowledge of the proceeding but instead relies on an
intermediary who does.” Bufalino v. Associated Press, 692 F.2d 266, 271 (2d Cir. 1982).
But where reliance was placed on a responsible, trustworthy, and knowledgeable source,

                                             8
the privilege extends only to the source’s account of the official action, official
proceeding, or official meeting.

        Applying this principle to the article concerning Mr. Burke, the fair report
privilege would extend to information provided by Detective Isom that was public and
involved official actions or proceedings, e.g., the fact of Mr. Burke’s arrest and the
details of the grand jury indictment. See Duncan, 1992 WL 136172, at *1; Tenn. Code
Ann. § 40-13-111 (2012); RESTATEMENT (SECOND) OF TORTS § 611 cmt. h (“An arrest
by an officer is an official action, and a report of the fact of the arrest or of the charge of
crime made by the officer in making or returning the arrest is . . . within the conditional
privilege . . . .”). But the article went beyond official actions and proceedings. It
included information about whether the cookie dough ordered through Mr. Burke was
ever delivered and about whether the fundraising company received any funds. The
article also included informal remarks on the strength of the case and what “lessons”
might have been learned from the incident by the participants in the youth football
program. Such details fall outside the scope of the privilege. See Lewis, 238 S.W.3d at
286 (concluding that the fair report privilege did not apply because defendant’s story
“contained [both information gathered from a press release and] other information
regarding . . . details . . . that did not come from the press release”); RESTATEMENT
(SECOND) OF TORTS § 611 cmt. h (“[S]tatements made by the police or by the
complainant or other witnesses or by the prosecuting attorney as to the facts of the case or
the evidence expected to be given are not yet part of the judicial proceeding or of the
arrest itself and are not privileged under [the fair report privilege].”).

2.     Attribution

        Even if we were inclined to extend the scope of the fair report privilege to all
communications, formal or informal, public or private, of police public information
officers or spokespersons, we conclude that the fair report privilege should not apply
here. To rely on the fair report privilege, the article should be written in such a manner
that an average reader can “understand the article (or the pertinent section thereof) to be a
report on or summary of an official document or proceeding.” Dameron v. Washington
Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985). To accomplish this, “[i]t must be
apparent either from specific attribution or from the overall context that the article is
quoting, paraphrasing, or otherwise drawing upon official documents or proceedings.” Id
at 739; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 254 (4th Cir.
1988) (liability avoidance requires proper attribution of the report to the original source);
ELDER, supra, § 3.3 (reasonable identification of source is a precondition to reliance on
the fair report privilege).

        Here, Ms. Claytor’s article did properly attribute the information included in the
article to Detective Isom. But Detective Isom was only referred to in the article as the
“case’s lead investigator.” The article never described the detective as being the public
                                            9
information officer for the White County Sheriff’s Office. So even if all communications
of a public information officer are official actions within the scope of the fair report
privilege, the average reader would not have understood Ms. Claytor’s article, either from
its context or specific attribution, to have been based upon an official act of government.

        Thus, we conclude that summary judgment was not appropriate based on the fair
report privilege. The privilege has not been extended “so far as to provide protection
from liability for fair and accurate reports of statements made by any governmental
employee in any circumstance.” Lewis, 238 S.W.3d at 285. And we decline to include
within the scope of the privilege informal communications, such as a private, one-on-one
interview given by a public information officer. But even if we were so inclined, the
article failed to properly attribute the comments of Detective Isom as those of a public
information officer.

                                                    C.

       As noted above, in determining whether the fair report privilege applied, the trial
court also found “no evidence of actual malice” on the part of Sparta Newspapers in
publishing the article. In its brief, Sparta Newspapers argues the lack of evidence of
actual malice entitles it summary judgment on an alternative basis.

        Under Tennessee law, a prima facie case for defamation requires proof “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.” Sullivan v. Baptist Mem’l Hosp., 995
S.W.2d 569, 571 (Tenn. 1999). “Actual malice”4 rather than mere negligence in failing
to ascertain the truth of the allegedly defamatory statement must be shown when the
statement “involve[s] public controversy or a matter of public or general concern” and
the plaintiff is “either a public official or public figure.” Lewis, 238 S.W.3d at 296.
Where actual malice is required to be shown, the plaintiff must meet its burden by clear
and convincing evidence. Trigg v. Lateway Publishers, Inc., 720 S.W.2d 69, 75 (Tenn.
Ct. App. 1986).

      No one claims that Mr. Burke is a public official, and the trial court made no such
determination. See Ferguson v. Union City Daily Messenger, Inc., 845 S.W.2d 162, 166
(Tenn. 1992) (determination of whether a plaintiff is a public official is a question of

        4
          The United States Supreme Court first applied the “actual malice” standard to “libel actions
brought by public officials” in New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964). The Court
defined actual malice as publication of a statement “with knowledge that it was false or with reckless
disregard of whether it was false or not.” Id. at 280. The Court subsequently clarified that application of
the actual malice standard also required the existence of “particular public controversies.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 345 (1974).

                                                    10
law); Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978) (defining a “public office”
as “[a]ny position of employment that carries with it duties and responsibilities affecting
the lives, liberty, money or property of a citizen or that may enhance or disrupt his
enjoyment of life, his peace and tranquility, or that of his family”). Sparta Newspapers
submits that the actual malice standard applies because Mr. Burke “is clearly at least a
limited purpose public figure.” In light of the trial court’s finding that “there is no
evidence of actual malice and certainly not clear and convincing evidence of actual
malice,” Sparta Newspapers claims that it “demonstrate[ed] that [Mr. Burke]’s evidence
at the summary judgment stage [wa]s insufficient to establish the nonmoving party’s
claim.” See Rye, 477 S.W.3d at 264.

       Because it concluded that the entire article was privileged under the fair report
privilege, the trial court never reached the issue of whether a heightened burden of proof
applied to Mr. Burke’s claims. The court only addressed the issue of actual malice in the
context of whether it could defeat the privilege. See Gertz, 680 F.2d at 535 (“The
privilege may be overcome, however, by a showing that the publication was motivated by
actual malice.”). Although it argues that summary judgment was appropriate on an
alternative ground, Sparta Newspapers did not designate the alternative ground for
summary judgment in its statement of issues on appeal. So we consider the issue waived.
See Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002).

                                           III.

      Based on the foregoing, we reverse the trial court’s grant of summary judgment in
favor of Sparta Newspapers on the basis of the fair report privilege. This matter is
remanded for further proceedings consistent with this opinion.


                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




                                            11
