       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE


                                          FILED
JAMES C. TOMLINSON and           )        November 7, 1997
CHARLES F. McKELVEY,             )
                                          Cecil W. Crowson
                                 )       Appellate Court Clerk
       Plaintiffs/Appellants,    )
                                 )   Davidson Circuit
                                 )   No. 96C-865
VS.                              )
                                 )   Appeal No.
                                 )   01A01-9608-CV-00378
EDNA J. KELLEY and               )
JEANETTE M. COKE,                )
                                 )
       Defendants/Appellees.     )



      APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

            THE HONORABLE BARBARA N. HAYNES, JUDGE


For the Plaintiffs/Appellants:            For the Defendants/Appellees:

Jimmy A. Duncan                           Lawrence D. Wilson
Nashville, Tennessee                      Nashville, Tennessee

                                           G. Kline Preston, IV
                                           Nashville, Tennessee




                  AFFIRMED AND REMANDED




                                     WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

       This appeal involves a controversy surrounding the appointment of a local city
official. The mayor and the city manager of the City of Berry Hill filed a defamation
action in the Circuit Court for Davidson County against two city residents who
publicly questioned the circumstances surrounding the interim appointment of a
member of the Board of Commissioners. The trial court granted the residents’ motion
for summary judgment and dismissed the city officials’ complaint. On this appeal,
the city officials assert that the trial court should not have granted the summary
judgment because the record contains evidence that the residents knew or should have
known that their critical statements made to a local newspaper were false. We affirm
the trial court.


                                         I.


       The seeds of this dispute were sown during the campaign for a seat on the City
of Berry Hill Board of Commissioners between James C. Tomlinson, the incumbent
mayor who had served on the Board for fourteen years, and Cliff Kelley. Several
months prior to the March 12, 1996 election, Edna Kelley, the challenger’s mother,
and Jeanette Coke received a newsletter dated August 1, 1995, signed by the Board
members, containing information stating that the Board had filled two vacant city
offices. The newsletter reported that Charles F. McKelvey had resigned as Berry
Hill’s mayor on July 10, 1995, and that the Board had hired him as city manager one
week later. It also reported that on July 10, 1995 the Board had appointed Tolby
McPherson as Mr. McKelvey’s interim successor and that Mr. McPherson would be
a candidate for the Board during the March 1996 election.


       The information in the newsletter caught the attention of Mses. Kelley and
Coke because they were under the impression that Mr. McPherson had not been
appointed until August 14, 1995, and that Berry Hill had a “no rehire” policy that
should have prevented the city from hiring Mr. McKelvey as city manager. When
Mses. Kelley and Coke confronted Mr. McKelvey about the “no rehire” policy, Mr.
McKelvey informed them that the policy did not apply to him.


                                         -2-
      Mses. Kelley and Coke decided to look into these issues further, and on
February 12, 1996, they went to city hall to obtain a copy of the minutes of the
Board’s July 10, 1995 meeting. The minutes they examined at that time contained
no reference either to Mr. McKelvey’s resignation or to Mr. McPherson’s selection
as his interim successor. When asked about these omissions, Mr. McKelvey
explained that he had resigned after the July 10, 1995 meeting ended. Mses. Kelley
and Coke requested a copy of the minutes of the July 10, 1995 meeting and were told
that a copy would be made for them.


      Mses. Kelley and Coke continued their quest for additional information
because they were convinced that they had not been told the whole story. At a Board
meeting later on February 12, 1996, the city attorney dismissed their concerns by
observing that the newsletter was not an official document. They also talked with
Berry Hill’s former mayor who told them that the current mayor had told him that the
Board had held an unpublicized meeting in its attorney’s office to discuss Mr.
McKelvey’s resignation and Mr. McPherson’s appointment.


      Mses. Kelley and Coke were denied copies of the minutes of the July 10, 1995
meeting when they returned to city hall on February 19, 1996. When they re-
examined the minutes, they discovered that the minutes had been changed to reflect
Mr. McKelvey’s resignation. This discovery prompted them to exclaim in the
presence of several city employees that “he [Mr. McKelvey] changed the minutes and
held a secret meeting. We’ve got him now, but we’ve got no proof.” When they
questioned Mr. McKelvey again, he warned them that they could get into trouble for
making such claims. Other city employees also informed them that they had already
caused enough trouble. Mses. Kelley and Coke later told a reporter for The
Tennessean that the minutes of the Board’s July 10, 1995 meeting had been changed
and that Mr. Tomlinson had held an unpublicized meeting concerning Mr.
McPherson’s interim appointment.


      On March 7, 1996, The Tennessean ran a story headlined “Berry Hill election
heats up with a meeting controversy” containing assertions by Mses. Kelley and Coke
that Mr. Tomlinson had conducted a secret meeting to discuss Mr. McPherson’s
appointment and that someone had changed the minutes of the Board’s July 10, 1995

                                        -3-
meeting. Mr. Tomlinson acknowledged in the story that there had been a meeting
before Mr. McPherson’s formal appointment, but he denied that the meeting violated
the Sunshine Law.1 The story also quoted Mr. McKelvey’s denial that he had
changed the minutes of the July 10, 1995 meeting.


       Messrs. McKelvey and Tomlinson filed a defamation action against Mses.
Kelley and Coke the day after The Tennessean article appeared. They alleged that
Mses. Kelley and Coke had “deliberately and intentionally published false and
defamatory allegations” about them with regard to altering the minutes of the Board’s
July 10, 1995 meeting and to holding a secret meeting to appoint Mr. McPherson to
replace Mr. McKelvey on the Board. Mses. Kelley and Coke filed a motion for
summary judgment asserting (1) that their comments were protected speech, (2) that
they had not acted maliciously, and (3) that their comments were not defamatory. On
June 18, 1996, the trial court filed an order granting the summary judgment and
dismissing all claims against Mses. Kelley and Coke.


                                                 II.


       The outcome of this appeal hinges on a single issue. Since there can be no real
dispute about Messrs. Tomlinson’s and McKelvey’s status as public figures,2 the
controlling question is whether Messrs. Tomlinson and McKelvey have come forward
with clear and convincing proof that Mses. Kelley and Coke acted with actual malice
when they told the reporter for The Tennessean that Mr. Tomlinson had held a secret
meeting to discuss Mr. McPherson’s appointment as Mr. McKelvey’s successor or
when they stated that the minutes of the Board’s July 10, 1995 meeting had been
altered. Like the trial court, we have concluded that Messrs. Tomlinson and
McKelvey have not carried their burden.
                                                 A.




       1
        The election in Berry Hill took place five days after The Tennessean story, and Mr. Kelley
defeated Mr. Tomlinson by fourteen votes.
       2
         Determining whether a person is a public figure is a question of law. See Ferguson v. Union
City Daily Messenger, Inc., 845 S.W.2d 162, 166 (Tenn. 1992). Any governmental official whose
duties affect the lives or peace and tranquility of citizens or their families is a public figure. See
Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978). The members of Berry Hill’s Board of
Commissioners are clearly public figures.

                                                 -4-
      The standards for reviewing a decision granting a summary judgment are now
well-known.    Appellate courts review the record to determine whether the
requirements of Tenn. R. Civ. P. 56 have been met. See Hembree v. State, 925
S.W.2d 513, 515 (Tenn. 1996); Payne v. Breuer, 891 S.W.2d 200, 201 (Tenn. 1994).
These requirements, as reflected in Tenn. R. Civ. P. 56.03, are first that the record
cannot contain any genuine factual dispute concerning the claim or defense asserted
in the motion, see Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn. 1995); Byrd v.
Hall, 847 S.W.2d 208, 210 (Tenn. 1993), and second that the moving party be
entitled to a judgment as a matter of law. See Anderson v. Standard Register Co., 857
S.W.2d 555, 559 (Tenn. 1993).


      Decisions granting a summary judgment are not entitled to a presumption of
correctness on appeal. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Carvell
v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Appellate courts must view the
evidence in the light most favorable to the nonmoving party, see Haynes v. Hamilton
County, 883 S.W.2d 606, 613 (Tenn. 1994), and must draw all reasonable inferences
in the nonmoving party’s favor. See Mike v. Po Group, Inc., 937 S.W.2d 790, 792
(Tenn. 1996); Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994). A
summary judgment should be affirmed only if the undisputed facts and the
conclusions reasonably drawn therefrom support the conclusion that the moving party
is entitled to a judgment as a matter of law. See McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d at 26.


      Summary judgments are proper in virtually any civil case that can be resolved
on legal issues alone. See Byrd v. Hall, 847 S.W.2d at 210. They are particularly
well-suited for defamation cases because the determination concerning whether the
plaintiff is a public figure is a question of law, see McDowell v. Moore, 863 S.W.2d
418, 420 (Tenn. Ct. App. 1992), as is the determination concerning whether a public
figure has come forward with clear and convincing evidence that the defendant was
acting with actual malice. See Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69, 74
(Tenn. Ct. App. 1986).


                                         B.



                                        -5-
       Public figures who desire to pursue defamation actions bear a heavy burden of
proof because of our society’s commitment to the principle that “debate on public
issues should be uninhibited, robust, and wide-open.” New York Times Co. v.
Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721 (1964). In order to recover damages,
they must prove with convincing clarity3 that the defendant acted with actual malice.
See Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978); Moore v. Bailey, 628
S.W.2d 431, 433 (Tenn. Ct. App. 1981).


       The concept of actual malice in defamation cases connotes more than personal
ill will, hatred, spite, or desire to injure. See Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 510, 111 S. Ct. 2419, 2429 (1991); McCluen v. Roane County Times,
Inc., 936 S.W.2d at 939; Windsor v. Tennessean, 654 S.W.2d 680, 688 (Tenn. Ct.
App. 1983). Rather, it is limited to statements made with knowledge that they are
false or with reckless disregard to their truth or falsity. See Press, Inc. v. Verran, 569
S.W.2d at 441; Cloyd v. Press, Inc., 629 S.W.2d 24, 27 (Tenn. Ct. App. 1981);
Restatement (Second) of Torts § 580A (1977). Determining whether a defendant
acted with reckless disregard requires the finder of fact to determine whether the
defendant “in fact entertained serious doubts as to the truth of his [or her]
publication.” Trigg v. Lakeway Publishers, Inc., 720 S.W.2d at 75 (quoting St. Amant
v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968)).


                                            C.


       Even though Mses. Kelley’s and Coke’s accusations were made during a
political campaign, Messrs. Tomlinson and McKelvey have failed to come forward
with clear and convincing evidence that Mses. Kelley and Coke knew that their
statements were false or that they entertained serious doubts that their statements
were true. Taken in the light most favorable to Messrs. Tomlinson and McKelvey,
the evidence both in support of and in opposition to the summary judgment motion
demonstrates that Mses. Kelley and Coke believed that their statements were true but
were frustrated because they believed that the documentary evidence proving their
charges had disappeared.

       3
         See McCluen v. Roane County Times, Inc., 936 S.W.2d 936, 939 (Tenn. Ct. App. 1996);
Trigg v. Lakeway Publishers, Inc., 720 S.W.2d at 75.

                                            -6-
       By the time Mses. Kelley and Coke spoke to the reporter for The Tennessean,
they had reasonable grounds to believe that the incumbent city officials had not been
completely candid about the circumstances surrounding Mr. McPherson’s
appointment. They had discovered a discrepancy between the Board’s August 1, 1995
newsletter and its minutes concerning the date of Mr. McPherson’s appointment.4
They had also examined a version of the minutes of the Board’s July 10, 1995
meeting which made no mention of either Mr. McKelvey’s resignation from the
Board or Mr. McPherson’s appointment to take his place.


       When Mses. Kelley and Coke questioned the city officials about these issues,
Mr. McKelvey, Mr. Tomlinson, and the city attorney dismissed their concerns, and
Mr. McKelvey even warned Ms. Coke that “you better watch what you’re saying,
you’re going to be in big trouble.” Thereafter, the city employees refused to
cooperate with Mses. Kelley and Coke and declined to provide them with copies of
the public records they had been promised earlier. Despite the lack of official
cooperation, Mses. Kelley and Coke later discovered that the minutes of the Board’s
July 10, 1995 meeting had been changed and that Mr. Tomlinson had told Berry
Hill’s former mayor that the Board had held a special, unpublicized meeting in the
city attorney’s office to discuss Mr. McPherson’s appointment.


       All these circumstances indicate that Mses. Kelley and Coke had grounds to
believe that their statements concerning the unpublicized meeting and the alteration
of the Board’s minutes were true. They were clearly frustrated because they had been
unable to obtain the version of the minutes they had originally read on February 12,
1996, but their statement that “we’ve got him now, but we’ve got no proof” is not
evidence of actual malice. Citizens are not required to have documentary proof in
order to criticize elected officials. Accordingly, we concur with the trial court’s
conclusion that Messrs. Tomlinson and McKelvey failed to demonstrate by clear and
convincing evidence that Mses. Kelley and Coke were acting with actual malice when
they informed the reporter for The Tennessean of the discrepancy concerning Mr.
McPherson’s appointment and the later alteration of the Board’s minutes.


       4
        The newsletter stated that Mr. McPherson’s appointment to the Board was announced on
July 11, 1995; while the Board’s minutes reflected that he was actually appointed on August 14,
1995.

                                             -7-
                                         III.


      We affirm the summary judgment dismissing the complaint and remand the
case to the trial court for whatever additional proceedings may be required. We also
tax the costs of this appeal, jointly and severally, to James C. Tomlinson and Charles
F. McKelvey and their surety for which execution, if necessary, may issue.




                                                ____________________________
                                                WILLIAM C. KOCH, JR., JUDGE

CONCUR:


___________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION


___________________________________
SAMUEL L. LEWIS, JUDGE




                                         -8-
