                                                                                       04/20/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                        February 5, 2018 Session

         THOMAS NATHAN LOFTIS, SR. V. RANDY RAYBURN

              Appeal from the Circuit Court for Davidson County
                   No. 17C-295     Kelvin D. Jones, Judge


                          No. M2017-01502-COA-R3-CV


The former director of a culinary program filed a complaint alleging defamation by
implication or innuendo and false light invasion of privacy against an individual he
claimed was the source of statements made in a newspaper article. The defendant moved
to dismiss the complaint on the basis that the statements were not actionable as a matter
of law. The trial court dismissed the complaint, and the former director appealed. We
affirm the trial court’s judgment dismissing the complaint and remand the issue of
attorney’s fees to the trial court.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.

William Gary Blackburn and Bryant Beatty Kroll, Nashville, Tennessee, for the
appellant, Thomas Nathan Loftis, Sr.

Daniel Alexander Horwitz and Alan Mark Sowell, Nashville, Tennessee, for the appellee,
Randy Rayburn.

                                      OPINION

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       An article was published in The Tennessean on March 2, 2016, that was titled,
“Tennessee Flavors offers way to eat, drink, aid cooking arts.” Jim Myers was the
author, and he wrote about Tennessee Flavors, which he described as “a food and drink
throwdown with more than 75 vendors from across Middle Tennessee” that served as
“the big kahuna fundraiser that benefits the culinary arts program of Nashville State
Community College.” The relevant portions of the article include the following:

      I’ve written before about the dearth of qualified line cooks in town, from
      our best restaurants to the hotels and convention centers that need to feed
      the burgeoning throngs. If you’re willing to work hard, love food and
      cooking and want a stable job, every kitchen door in Nashville will fling
      open.

      [Randy] Rayburn recognized this need every day in his kitchens at the old
      Sunset Grill, Midtown Cafe and Cabana, so he decided to do something
      about it by dedicating himself to helping build the culinary arts program at
      what used to be called Nashville Tech.

      To honor him, the school named its new facility at the old Hickory Hollow
      mall in Antioch The Randy Rayburn School of Culinary Arts
      (http://www.nscc.edu/programs/c/business-and-applied-arts/culinary-arts/)
      at Nashville State Community College. However, Rayburn will tell you it
      hasn’t been easy. When he enlisted the help of local restaurateurs and chefs
      to offer feedback on the program and the quality of its graduates, the
      reports he got back weren’t flattering. The program was simply turning out
      unqualified students.

      Rayburn didn’t flinch because a career of running successful restaurants
      teaches you how to cut losses and move on quickly. With his name on the
      building, he rolled up his sleeves and decided to get more involved. He
      went back to his dissatisfied cadre of chefs, including OGC (original
      gangsta Chef) Deb Paquette of Etch, City House’s Tandy Wilson, Kim
      Totzka of the Turnip Truck, Edgar Pendley from Urban Grub, barbecue
      honcho Pat Martin, John Stephenson of the Family Wash and Max
      Knoepfel, executive chef of the Music City Center, and asked for more
      help.

      They started by cleaning house from the top by removing director Tom
      Loftis. It was a politically inexpedient move last year since Loftis was the
      brother-in-law of Bill Freeman who was running for mayor at the time. If
      the election had gone a different way, it might have affected funding for the
      school.

      Rayburn’s group knew they needed fresh blood and launched a nationwide
      search, eventually hiring Paul Brennen over more than 50 other candidates.



                                          -2-
      Today, the ship seems to be righted and on a good course. There’s
      scholarship money galore for young, and older, students interested in the
      culinary arts, and the new facility is a showplace.

       The plaintiff Thomas Nathan Loftis, Sr., is the “Tom Loftis” referenced in Mr.
Myers’ article. Mr. Loftis filed a complaint against Randy Rayburn on February 3, 2017,
asserting that Mr. Rayburn was liable to him for false light invasion of privacy and
defamation by implication or innuendo. Mr. Rayburn filed a motion to dismiss the
complaint on February 24, and Mr. Loftis responded by moving to file an amended
complaint, which the trial court allowed. In his amended complaint, Mr. Loftis alleged
that the information in the article came from Mr. Rayburn and constituted his spoken
words. Mr. Loftis claimed that Mr. Rayburn’s “words of self-aggrandizement portray
Rayburn as the savior of culinary arts from the incompetence of Plaintiff.” Mr. Loftis
asserted that Mr. Rayburn’s “boastful and unseemly comments were reckless and made
with a conscience [sic] indifference to the truth.” He further asserted that Mr. Rayburn
“intentionally and recklessly impugned the competence and maligned the reputation of
the Plaintiff in order to embellish his own role in the Nashville culinary community.”
According to Mr. Loftis, Mr. Rayburn’s words and conduct “caused Plaintiff great
embarrassment, humiliation and emotional distress. As a direct consequence, Plaintiff
has been unable to find comparable work in Nashville, Tennessee.”

      Mr. Loftis described his false light cause of action as follows:

      Pursuant to an interview with Mr. Jim Myers of The Tennessean, the
      Defendant Randy Rayburn spoke words that were of and concerning the
      Plaintiff. The words spoken by Rayburn were thereafter published by Mr.
      Myers in The Tennessean article dated March 2, 2016. Mr. Rayburn placed
      the Plaintiff before the public in a false light and is therefore liable to the
      Plaintiff for invasion of his privacy. The false light in which Plaintiff was
      placed would be highly offensive to a reasonable person, in this instance
      accusing the Plaintiff of incompetence and personally responsible for
      alleged and unsubstantiated deficiencies of unnamed persons. The tenor of
      the article and of Mr. Rayburn’s comments suggested that a list of well-
      known local chefs unanimously agreed with this proposition, but that was
      not true. The Defendant had actual knowledge of or acted with reckless
      disregard to the falsity of the matters asserted and the false light in which
      the Plaintiff was placed.

Mr. Loftis described his claim for defamation by implication or innuendo as follows:

      The publication complained of and the words of Rayburn therein plainly
      implied that the lack of proper performance by unidentified employees of
      unnamed chefs in restaurants or as [sic] a consequence of the incompetence

                                           -3-
      of the Plaintiff, even though that statement was not literally made. When
      read and construed in the sense in which a reader would ordinarily
      understand it, the clear implication was that any failure of a restaurant
      employee who had attended the school was the fault of the Plaintiff.

Mr. Loftis sought compensatory damages in the amount of $500,000 and punitive
damages in an amount up to $1,000,000.

       Mr. Rayburn moved to dismiss Mr. Loftis’s amended complaint asserting, inter
alia, that the statements complained of were not capable of defamatory meaning or
inference as a matter of law. The trial court held a hearing on July 10, 2017, and it
entered an order dismissing the amended complaint on July 19, 2017, ruling that the
statements complained of were not defamatory and failed to create liability as a matter of
law. The court wrote:

      1. The Plaintiff has filed claims for false light invasion of privacy and
      defamation by implication or innuendo based on statements contained in a
      newspaper article attached to his Amended Complaint that was written by
      Jim Myers and published by The Tennessean. The Plaintiff has alleged that
      the statements contained in the article were spoken by the Defendant.

      2. Under Tenn. R. Civ. P. 12.02(6), the Court construes the Plaintiff’s
      Amended Complaint liberally in favor of the Plaintiff, taking all allegations
      of fact as true, and will deny the Defendant’s Motion to Dismiss unless it
      appears that the Plaintiff can prove no set of facts in support of his claims
      that would entitle him to relief.

      3. Under applicable law, the statements contained in the article must be
      read as a person of ordinary intelligence would understand them in light of
      the surrounding circumstances; the Court is not bound by the Plaintiff’s
      interpretations of the statements contained in the article; there is significant
      and substantial overlap between false light and defamation; and whether
      any statement contained in the article is capable of being understood as
      defamatory is a question of law to be determined by the Court.

      4. Applying these standards to the instant case, the Court is of the opinion
      that the statements contained in The Tennessean article are not capable of
      conveying a defamatory meaning and that they do not give rise to liability
      as a matter of law.

      5. THEREFORE, the Defendant’s Motion to Dismiss the Plaintiff’s
      Amended Complaint is GRANTED. The Plaintiff’s Amended Complaint,


                                           -4-
        and each cause of action therein, is hereby DISMISSED with prejudice for
        failure to state a claim upon which relief can be granted.

       Mr. Loftis filed a notice of appeal followed by a notice that no transcript or
statement of evidence would be filed. Mr. Rayburn then filed a notice that a transcript or
statement of the proceedings would be filed as part of the appellate record pursuant to
Tenn. R. App. P. 24(d). Mr. Rayburn asked the trial court to assess Mr. Loftis for the
cost of preparing the transcript of the proceedings if the court deemed a full transcript to
be necessary. The trial court issued an order on August 8, 2017, stating that “the
transcript of proceedings is necessary to convey a complete account of what transpired at
the hearing” and directing Mr. Loftis to assume the expense of preparing the transcript.
Mr. Loftis filed a motion to alter, amend, and to set aside the August 8 order regarding
the transcript, which the trial court denied.

       On appeal, Mr. Loftis raises the following arguments: (1) whether Mr. Rayburn’s
public comments placed Mr. Loftis in a negative and unfair light; (2) whether Mr.
Rayburn should have known that Mr. Loftis, as a reasonable man, would be seriously
aggrieved and offended by publicity suggesting that pervasive incompetence among line
cooks in Nashville was directly attributable to him; (3) whether the trial court’s order
dismissing the amended complaint should be set aside for failure to rule upon the theories
Mr. Loftis advanced; (4) whether the order requiring Mr. Loftis to bear the cost of the
transcript should be reversed; and (5) whether Mr. Rayburn should be sanctioned for
characterizing Mr. Loftis’s attorney’s statement at the hearing as a judicial admission.

        Mr. Rayburn raises the following additional issues on appeal: (1) whether he is
entitled to attorney’s fees pursuant to Tenn. Code Ann. § 29-20-113; (2) whether he is
entitled to attorney’s fees for defending against a meritless claim for sanctions; and (3)
whether Mr. Loftis’s appeal is frivolous within the meaning of Tenn. Code Ann. § 27-1-
122.

                                            II. ANALYSIS

       The trial court dismissed Mr. Loftis’s complaint for failing to state a claim for
which relief could be granted. See TENN. R. CIV. P. 12.02(6). A motion to dismiss is
resolved “by an examination of the pleadings alone.” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).1 A defendant filing a motion to
dismiss “‘admits the truth of all of the relevant and material allegations contained in the
complaint, but . . . asserts that the allegations fail to establish a cause of action.’” Id.
1
 Mr. Loftis attached a copy of The Tennessean article to his amended complaint, rendering it a part of the
pleadings and appropriate for consideration by the court ruling on a motion to dismiss. See Belton v. City
of Memphis, No. W2015-01785-COA-R3-CV, 2016 WL 2754407, at *4 (Tenn. Ct. App. May 10, 2016); McGhee
v. Shelby Cnty. Gov’t, No. W2012-00185-COA-R3-CV, 2012 WL 2087188, at *1 n.2 (Tenn. Ct. App.
June 11, 2012).
                                                  -5-
(quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010)). When
ruling on a motion to dismiss, courts are required to ‘“construe the complaint liberally,
presuming all factual allegations to be true and giving the plaintiff the benefit of all
reasonable inferences.”’ Id. (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32
(Tenn. 2007)). “A trial court should grant a motion to dismiss ‘only when it appears that
the plaintiff can prove no set of facts in support of the claim that would entitle the
plaintiff to relief.”’ Id. (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857
(Tenn. 2002)). We review the trial court’s decision to grant a defendant’s motion to
dismiss de novo. Id. (citing Brown, 328 S.W.3d at 855, and Stein v. Davidson Hotel Co.,
945 S.W.2d 714, 716 (Tenn. 1997)).

        We begin with Mr. Loftis’s argument about why he believes The Tennessean
article gives rise to a claim against Mr. Rayburn for false light invasion of privacy or
defamation by implication or innuendo. The portions of the article that Mr. Loftis
focuses on include the following:

           Mr. Rayburn’s concern over “the dearth of qualified line cooks in
            town, from our best restaurants to the hotels and convention centers.
            [Mr.] Rayburn recognized this need every day in his kitchen . . . so
            he decided to do something about it by dedicating himself to helping
            build a Culinary Arts program at what used to be called Nashville
            Tech.”

           Mr. Rayburn’s perspective that “it hasn’t been easy.” “When he
            supposedly sought the help [from] an unnamed and unnumbered set
            of local restauranteurs for feedback, ‘the reports he got back weren’t
            flattering. The program was simply turning out unqualified
            students.’”

           Mr. Rayburn’s decision to “apply his experience ‘in how to cut
            losses and move on quickly.’ He ‘decided to get more involved.’”

           “Mr. Rayburn’s management involvement began ‘by cleaning house
            from the top by removing director Tom Loftis.’”

      According to Mr. Loftis,

      The unmistakable suggestion of [Mr. Rayburn’s] remarks was that: (1) line
      cooks in Nashville were unqualified; (2) all of these persons graduated
      from Nashville State; (3) all of them were unqualified because of some
      implied incompetence on the part of Mr. Loftis; (4) [Mr.] Rayburn’s
      reputation in the culinary community was at risk; and (5) therefore, it was

                                          -6-
      necessary to “clean house” by removing the man depicted as personally
      responsible for the perceived deficiencies.

      A. Defamation by Implication

       The basis of a defamation action is that the “allegedly defamatory statement has
injured the plaintiff’s character and reputation.” Aegis Scis. Corp. v. Zelenik, No.
M2012-00898-COA-R3-CV, 2013 WL 175807, at *5 (Tenn. Ct. App. Jan. 16, 2013)
(citing Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 820
(Tenn. 1994)). To prevail on a claim for defamation, a plaintiff must establish that (1)
the defendant published a statement, (2) the defendant knew the statement was false and
defamatory to the plaintiff, and (3) the defendant acted ‘“with reckless disregard for the
truth of the statement or with negligence in failing to ascertain the truth of the
statement.”’ Id. (quoting Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn.
1999)). As we have explained in earlier defamation cases,

      “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.’”

Revis v. McClean, 31 S.W.3d 250, 252-53 (Tenn. Ct. App. 2000) (quoting Stones River
Motors, Inc. v. Mid-South Publ’g Co., Inc., 651 S.W.2d 713, 719 (Tenn. Ct. App. 1983)
(citations omitted)); see also Isbell v. Travis Electric Co., No. M1999-00052-COA-R3-
CV, 2000 WL 1817252, at *5 (Tenn. Ct. App. Dec. 13, 2000) (stating libel is type of
defamation). A statement is defamatory ‘“if it tends so to harm the reputation of another
as to lower him [or her] in the estimation of the community or to deter third persons from
associating or dealing with him [or her].’” Biltcliffe v. Hailey’s Harbor, Inc., No.
M2003-02408-COA-R3-CV, 2005 WL 2860164, at *4 (Tenn. Ct. App. Oct. 27, 2005)
(quoting RESTATEMENT (SECOND) OF TORTS § 559 (1977)).

       Tennessee courts first recognized the tort of defamation by implication or
innuendo in Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978). In that
case, a newspaper published a story about a wife who shot her husband and another
woman after the wife found her husband at the other woman’s house. Nichols, 569
S.W.2d at 414. The woman who was shot sued the newspaper for defamation, asserting
that the newspaper falsely implied that she was having an affair with the assailant’s
husband and that the assailant caught them together when she fired the shots. Id. The
undisputed evidence showed, however, that several people were at the plaintiff’s house
when the assailant found her husband, and they were all just sitting around the living
room talking. Id. The newspaper defended the defamation action by emphasizing that

                                          -7-
everything it printed in the article was true. The Nichols Court wrote that the truth of the
statements did not relieve the newspaper of liability if “the meaning reasonably conveyed
by the published words is defamatory.” Id. at 420. The Court explained that “[t]he
published statement . . . so distorted the truth as to make the entire article false and
defamatory. It is no defense whatever that individual statements within the article were
literally true. Truth is available as an absolute defense only when the defamatory
meaning conveyed by the words is true.” Id.

       The Nichols Court did not describe the type of defamation at issue in the case as
“defamation by implication,” or “defamation by innuendo,” but later courts
acknowledged that Nichols was the first Tennessee case to recognize the doctrine of
defamation by innuendo or implication. Isbell, 2000 WL 1817252, at *6; see also
Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 318 n.5 (Tenn.
Ct. App. 2012). The Court of Appeals has explained that “a statement may be capable of
defamatory meaning even if the words do not appear defamatory on their face, but
instead imply or suggest a defamatory meaning.” Grant v. Commercial Appeal, No.
W2015-00208-COA-R3-CV, 2015 WL 5772524, at *11 (Tenn. Ct. App. Sept. 18, 2015).
In other words, even if a defendant’s statements are true, the defendant may be liable if
the statements “imply facts that are not true.” Id. at *12 (citing Zelenik, 2013 WL
175807, at *11). ‘“The rationale behind this rule is that, when truthful statements carry a
defamatory innuendo, the factual implication should also be true to justify the
implication.”’ Isbell, 2000 WL 1817252, at *6 (quoting Fitzgerald v. Tucker, 737 So. 2d
706, 717 (La. 1999)).

       “Whether a communication is capable of conveying a defamatory meaning is a
question of law.” Revis, 31 S.W.3d at 253 (citing Pate v. Serv. Merch. Co., Inc., 959
S.W.2d 569 (Tenn. Ct. App. 1996)); see also Nichols, 569 S.W.2d at 419. According to
the Grant court:

       A trial court may determine that a statement is not defamatory as a matter
       of law only when “the statement is not reasonably capable of any
       defamatory meaning and cannot be reasonably understood in any
       defamatory sense.” Aegis Sciences Corp., 2013 WL 175807, at *6 (citing
       Biltcliffe v. Hailey’s Harbor, Inc., No. M2003-02408-COA-R3-CV, 2005
       WL 2860164, at *4 (Tenn. Ct. App. Oct. 27, 2005)). When considering
       whether a statement is capable of being defamatory, it must be judged
       within the context it is made. Revis, 31 S.W.3d [at] 253. Additionally, it
       “should be read as a person of ordinary intelligence would understand [it]
       in light of the surrounding circumstances.” Id. (citations omitted). To this
       end, courts are not bound to the plaintiff’s interpretation of the allegedly
       defamatory material, and if the words “do not reasonably have the meaning
       plaintiff ascribes to them, the court must disregard” plaintiff’s
       interpretation. Stones River Motors, Inc. v. Mid-South Publ’g Co., 651

                                           -8-
       S.W.2d 713[, 719] (Tenn. Ct. App. 1983) (citing Dupont Eng’g Co. v.
       Nashville Banner Publ’g Co., 13 F.2d 186 (M.D. Tenn. 1925)).

Grant, 2015 WL 5772524, at *10.

       To prevail on his defamation by implication or innuendo claim, Mr. Loftis must
establish in his complaint that Mr. Rayburn published the statements and that the
meaning reasonably conveyed by the statements was defamatory. Nichols, 569 S.W.2d at
420. As Grant instructs, if the statements at issue are true but they imply facts that are
not true, a defendant who made the statements may be liable for defamation by
implication or innuendo. Grant, 2015 WL 5772524, at *12.

        Mr. Rayburn is not the author of the article, and he is not quoted anywhere in the
article. However, Mr. Loftis asserted in his amended complaint that during an interview
with Mr. Myers, Mr. Rayburn spoke the words that Mr. Myers printed. For purposes of
ruling on Mr. Rayburn’s motion to dismiss, we construe the complaint liberally and
presume all factual allegations are true. Webb, 346 S.W.3d at 426. Thus, we find that
Mr. Loftis has asserted that Mr. Rayburn made the statements that Mr. Loftis finds
objectionable.

        Mr. Loftis does not question the literal truth of the statements in the article, but he
argues they imply that he personally was to blame for the unqualified line cooks in
Nashville. We do not agree. Mr. Myers’ statement that the school’s culinary program
was not turning out qualified students appears to have been based on the feedback Mr.
Rayburn got from other chefs in the area. The article does not suggest that all of the
unqualified line cooks in the area received training at the culinary program at Nashville
Tech or that Mr. Loftis was to blame for the dearth of qualified line cooks, as Mr. Loftis
argues. Mr. Loftis is not mentioned at all until the second page, toward the end of the
article, when Mr. Myers wrote: “They started by cleaning house from the top by
removing director Tom Loftis.” Mr. Myers does not clarify who “they” were, and the
article does not impugn Mr. Loftis personally. Contrary to Mr. Loftis’s argument, we do
not believe the article can reasonably be interpreted as depicting Mr. Loftis as “personally
responsible for the perceived deficiencies of the culinary program.”

       The only other time Mr. Loftis is mentioned in the article is in the sentence: “It
[removing Tom Loftis] was a politically inexpedient move last year since Loftis was the
brother-in-law of Bill Freeman who was running for mayor at the time. If the election
had gone a different way, it might have affected funding for the school.” This sentence
simply notes the relationship of Mr. Loftis to Mr. Freeman and has nothing to do with
Mr. Loftis’s character, reputation, or ability as the director of the culinary program. Mr.
Loftis’s assertion that this statement implies he “might unethically have retaliated by
punishing the school with a loss of funding from the Metropolitan Government, should


                                             -9-
Mr. Freeman become Mayor” is far-fetched and not a reasonable interpretation of the
statement.

       We find as a matter of law that the statements in Mr. Myers’ article cannot
reasonably be construed as implying facts that are not true, as they must to qualify as
defamatory by implication or innuendo. Grant, 2015 WL 5772524, at *11. We are not
bound by Mr. Loftis’s interpretation of the statements because we find they do not
reasonably have the meaning he ascribes to them. Id. at *10. We find the statements Mr.
Loftis focuses on cannot reasonably be interpreted as holding Mr. Loftis ‘“up to public
hatred, contempt or ridicule,”’ Revis, 31 S.W.3d at 253 (quoting Stones River Motors,
651 S.W.2d at 719), or as lowering him in the eyes of the community, Biltcliffe, 2005 WL
2860164, at *4. Thus, we affirm the trial court’s decision granting Mr. Rayburn’s motion
to dismiss Mr. Loftis’s claim for defamation by implication or innuendo.

       B. False Light Invasion of Privacy

       Tennessee first recognized the tort of false light invasion of privacy in West v.
Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001). The West Court
announced that Section 652E of the Restatement (Second) of Torts (1977), as modified,
accurately describes the elements of the tort for purposes of plaintiffs in Tennessee.
West, 53 S.W.3d at 641; see also Eisenstein, 389 S.W.3d at 317. According to the
Restatement (Second) of Torts,

       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.

RESTATEMENT (SECOND) OF TORTS § 652E (1977).

        The West Court departed from the Restatement by stating that Tennessee does 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. West, 53 S.W.3d at 647; see also Lewis v.
NewsChannel 5 Network, L.P., 238 S.W.3d 270, 303 (Tenn. Ct. App. 2007). The West
Court emphasized that a defendant will not be liable for false light invasion of privacy
unless “the publicity is highly offensive to a reasonable person.” West, 53 S.W.3d at 646


                                            - 10 -
(citing RESTATEMENT (SECOND) OF TORTS § 652E(a)).2 If a defendant publishes
“intentionally falsified” information about a plaintiff, the plaintiff is unable to recover
under the theory of false light invasion of privacy unless the publication constitutes a
“seriously offensive misstatement.” Id.

       As with defamation by implication, a statement’s truth will not protect a defendant
from liability when a plaintiff asserts a false light invasion of privacy cause of action.
Eisenstein, 389 S.W.3d at 317. As the West Court explained,

       The facts may be true in a false light claim. However, the angle from
       which the facts are presented, or the omission of certain material facts,
       results in placing the plaintiff in a false light. “‘Literal accuracy of separate
       statements will not render a communication “true” where the implication of
       the communication as a whole was false.’ . . . The question is whether [the
       defendant] made ‘discrete presentations of information in a fashion which
       rendered the publication susceptible to inferences casting [the plaintiff] in a
       false light.’” Santillo v. Reedel, 430 Pa. Super. 290, 634 A.2d 264, 267
       (1993) (citing Larsen v. Philadelphia Newspapers, Inc., 375 Pa. Super. 66,
       543 A.2d 1181 (1988) (emphasis added)).

West, 53 S.W.3d at 645 n.5. Thus, the Eisenstein court wrote, “the falsehood involved in
a false light action ‘may consist in dissemination of matters which, while technically true,
give an objectionably false impression where the communicator fails to modify the basic
statement with amplifying facts which modify the statement to create a less objectionable
impression corresponding to full reality.’” Eisenstein, 389 S.W.3d at 318 (quoting
Russell G. Donaldson, Annotation, False Light Invasion of Privacy—Cognizability and
Elements, 57 A.L.R. 4TH 22, § 13 (Cum. Supp. 2012)).

       The Court of Appeals addressed the type of publicity that is required for a plaintiff
to prevail on a false light claim in Brown v. Mapco Express, Inc., 393 S.W.3d 696 (Tenn.
Ct. App. 2012). The Brown court explained that the offensive statements at issue must be
‘“made public, by communicating [them] to the public at large, or to so many persons
that the matter must be regarded as substantially certain to become one of public
2
 Comment c to the Restatement (Second) of Torts § 652E addresses the requirement that the offensive
statement be “highly offensive to a reasonable person,” stating in relevant part:

       The rule stated in this Section applies only when the publicity given to the plaintiff has
       placed him in a false light before the public, of a kind that would be highly offensive to a
       reasonable person. In other words, it applies only when the defendant knows that the
       plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling
       seriously offended and aggrieved by the publicity. . . . It is only when there is such a
       major misrepresentation of his character, history, activities or beliefs that serious offense
       may reasonably be expected to be taken by a reasonable man in his position, that there is
       a cause of action for invasion of privacy.
                                                  - 11 -
knowledge.”’ Brown, 393 S.W.3d at 707 (quoting Secured Fin. Solutions, LLC v. Winer,
No. M2009-00885-COA-R3-CV, 2010 WL 334644, at *4 (Tenn. Ct. App. Jan. 28, 2010)
(itself quoting RESTATEMENT (SECOND) OF TORTS § 652D cmt. a)). A defendant’s
communication to “one person or a small group of persons” ‘“fails, as a matter of law, to
satisfy the ‘publicity’ requirement of the tort of false light invasion of privacy.’” Id.
(quoting Winer, 2010 WL 334644, at *4).

        To prevail on his false light invasion of privacy claim, Mr. Loftis must show that
the statements he asserts Mr. Rayburn made through Mr. Myers’ article placed him in a
false light and that the false light would be “highly offensive” to a reasonable person.
We find Mr. Loftis satisfied the publicity requirement of the tort through his assertion
that Mr. Rayburn conveyed the information in the article to Mr. Myers during an
interview. Although Mr. Loftis asserts that Mr. Rayburn spoke the statements at issue
only to Mr. Myers, it is fair to assume Mr. Rayburn knew Mr. Myers was a reporter for
The Tennessean and that Mr. Myers would report his statements in the newspaper. The
Restatement (Second) of Torts addresses the publicity requirement by explaining in a
comment that the matter at issue must be “made public, by communicating it to the public
at large, or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” RESTATEMENT (SECOND) OF TORTS § 652D cmt. a.
The comment continues:

          Thus it is not an invasion of the right of privacy, within the rule stated in
          this Section, to communicate a fact concerning the plaintiff’s private life to
          a single person or even to a small group of persons. On the other hand, any
          publication in a newspaper or a magazine, even of small circulation, or in a
          handbill distributed to a large number of persons, or any broadcast over the
          radio, or statement made in an address to a large audience, is sufficient to
          give publicity within the meaning of the term as it is used in this Section.
          The distinction, in other words, is one between private and public
          communication.

        We do not, however, believe that the statements can be considered “highly
offensive to a reasonable person,” as they must be for Mr. Loftis to proceed with this
claim. West, 53 S.W.3d at 643-44; Eisenstein, 389 S.W.3d at 317. For the reasons we
found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also
find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light.
See West, 53 S.W.3d at 645 n.5. We do not believe a reasonable person would be
justified, in the eyes of the community, of being seriously offended and aggrieved by the
statements at issue. See RESTATEMENT (SECOND) OF TORTS § 652E cmt. c. Accordingly,
we affirm the trial court’s decision granting Mr. Rayburn’s motion to dismiss Mr.
Loftis’s false light invasion of privacy cause of action.3

3
    We decline to address the other grounds Mr. Rayburn briefs in support of the trial court’s order
                                                - 12 -
        C. Trial Court’s Order

        Mr. Loftis asserts that the trial court failed to address the elements of his false light
or defamation by implication or innuendo causes of action in its order granting Mr.
Rayburn’s motion to dismiss and that the order should, therefore, be set aside. Upon
reviewing the trial court’s order, we find the court recognized both causes of action Mr.
Loftis asserted in his amended complaint, announced the proper standard for considering
Mr. Rayburn’s motion to dismiss, and properly stated, “[u]nder applicable law, the
statements contained in the article must be read as a person of ordinary intelligence
would understand them in light of the surrounding circumstances; the Court is not bound
by the Plaintiff’s interpretations of the statements contained in the article.” Then, after
noting that “there is significant and substantial overlap” between Mr. Loftis’s false light
and defamation causes of action, the trial court found that the statements contained in the
newspaper article “are not capable of conveying a defamatory meaning” and “do not give
rise to liability as a matter of law.”

       The trial court correctly stated that there is a significant and substantial overlap
between the torts of defamation by implication or innuendo and false light invasion of
privacy. See Eisenstein, 389 S.W.3d at 318 n.5 (quoting Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1113 (Fla. 2008)). As we explained in Eisenstein, the primary
distinction between the two torts is the type of injury addressed: ‘“in defamation cases
the interest sought to be protected is the objective one of reputation, either economic,
political, or personal, in the outside world. In privacy cases the interest affected is the
subjective one of injury to [the] inner person.”’ Id. (quoting West, 53 S.W.3d at 645-46);
see also Winer, 2010 WL 334644, at *4. The West Court noted that damages resulting
from false light invasion of privacy may include injury to standing in a community,
humiliation, or emotional distress. West, 53 S.W.3d at 648.

        As we discussed above, the statements at issue must be capable of implying a
defamatory meaning to survive a motion to dismiss a defamation by implication or
innuendo claim, Grant, 2015 WL 5772524, at *11, and they must cast the plaintiff in a
false light in such a way that they could be highly offensive to a reasonable person to
survive a motion to dismiss a false light claim, West, 53 S.W.3d at 646. Because of the
overlap between the two torts, when the trial court held that the statements in the article
“are not capable of conveying a defamatory meaning” and “do not give rise to liability as
a matter of law,” we find the trial court’s holding applied to both of Mr. Loftis’s causes
of action and that the trial court sufficiently addressed the elements of each tort.4


dismissing Mr. Loftis’s amended complaint because they are pretermitted by our holding that the
statements in the newspaper article are not defamatory as a matter of law.
4
  In any event, because we review the trial court’s judgment granting Mr. Rayburn’s motion to dismiss de
novo, with no deference given to the trial court’s decision, any deficiencies in the trial court’s order are
rectified herein, on appeal.
                                                  - 13 -
       D. Cost of the Transcript

        Mr. Loftis next complains the trial court erred in requiring him to pay the expense
of preparing a transcript of the hearing on Mr. Rayburn’s motion to dismiss. Tennessee
Rule of Appellate Procedure 24(d) allows an appellee to file a transcript of proceedings
and ask the court to assess the cost of its preparation to the appellant if the appellant
notifies the court and the appellee that he or she does not intend to file a transcript. This
rule states, in relevant part:

       If no transcript or statement of the evidence or proceedings is to be filed,
       the appellant shall, within 15 days after filing the notice of appeal, file with
       the clerk of the trial court and serve upon the appellee a notice that no
       transcript or statement is to be filed. If the appellee deems a transcript or
       statement of the evidence or proceedings to be necessary, the appellee shall,
       within 15 days after service of the appellant’s notice, file with the clerk of
       the trial court and serve upon the appellant a notice that a transcript or
       statement is to be filed. The appellee shall prepare the transcript or
       statement at the appellee’s own expense or apply to the trial court for an
       order requiring the appellant to assume the expense.

Mr. Loftis filed a notice on July 26, 2017, that he did not intend to file a transcript or
statement of evidence. Then, on July 31, 2017, Mr. Rayburn filed a notice pursuant to
Rule 24(d) in which he stated his belief that a record of the hearing on his motion to
dismiss was essential for appellate review. He requested that the trial court include a
transcript of the proceedings in the appellate record and asked the court to charge Mr.
Loftis with the cost of preparing it if the court deemed a full transcript of the proceedings
to be necessary. The trial court issued an order on August 8, 2017, in which it stated that
“the transcript of proceedings is necessary to convey a complete account of what
transpired at the hearing” and then directed Mr. Loftis to “assume the expense of the
preparation of the Transcript of Evidence.”

       Mr. Loftis takes issue with the trial court’s order, in part because the trial court
referred to the transcript as containing “evidence” rather than simply containing a record
of the “proceedings.” Mr. Loftis argues that the record contains no “evidence” because
his amended complaint was dismissed pursuant to a motion to dismiss. Mr. Rayburn
responds that the trial court properly referred to the transcript as containing a record of
the “proceedings.” Mr. Rayburn further argues that the record includes Mr. Loftis’s
attorney’s response to a question by the court, and this response constitutes a judicial
admission, which is evidence.5

5
 Mr. Rayburn cites the following colloquy in support of his argument that Mr. Loftis’s attorney made a
judicial admission:


                                               - 14 -
       Tennessee Rule of Appellate Procedure 24 governs the contents of the appellate
record, and it “is designed to ensure that the record on appeal conveys ‘a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal.’” Bradshaw v. Daniel, 854 S.W.2d 865, 868 (Tenn. 1993) (quoting TENN. R. APP.
P. 24(a)). Appellate courts give deference to a trial court’s decision about the contents of
an appellate record because “[t]he trial court is in the best position to determine those
matters necessary to provide a fair, accurate, and complete account of the proceedings
upon which the appeal is based.” State v. Housler, 167 S.W.3d 294, 296 (Tenn. 2005);
see also Bradshaw, 854 S.W.2d at 868 (‘“Any differences regarding whether the record
accurately discloses what occurred in the trial court shall be submitted to and settled by
the trial court regardless of whether the record has been transmitted to the appellate
court.”’) (quoting TENN. R. APP. P. 24(e)); Artrip v. Crilley, 688 S.W.2d 451, 453 (Tenn.
Ct. App. 1985) (“The trial court is the final arbiter of the transcript or statement of the
proceedings.”).6

        Subsection (e) of Appellate Rule 24 provides, in pertinent part:

        Any differences regarding whether the record accurately discloses what
        occurred in the trial court shall be submitted to and settled by the trial court
        regardless of whether the record has been transmitted to the appellate court.
        Absent extraordinary circumstances, the determination of the trial court is
        conclusive. If necessary, the appellate or trial court may direct that a
        supplemental record be certified and transmitted.

(Emphasis added.) As subsection (e) states, the trial court’s decision about whether the
transcript of the hearing accurately discloses what occurred in the trial court and whether
it should be included in the record is conclusive, “absent extraordinary circumstances.”
Mr. Loftis fails to cite any extraordinary circumstances to justify reversing the trial
court’s decision on this issue.

       The trial court has discretion to apportion costs between the parties, and “appellate
courts are generally disinclined to interfere with a trial court’s decision in assessing costs
unless there is a clear abuse of discretion.” Perdue v. Green Branch Mining Co., Inc.,

        THE COURT: Now, wait, but it says - - it didn’t say - - he says “they.” Who’s the
        “they” in “They started by cleaning house”?

        Mr. BLACKBURN: Well, they’re describing him as the - - as the voice of the school, as
        the board, as the - - the person for whom the school is named - - named. And the next
        paragraph begins with, “Rayburn’s group knew they needed fresh blood.” That’s what
        they knew.
6
 We also note that Tenn. R. App. P. 24(h) permits any party to “prepar[e] and fil[e] with the clerk of the
trial court a transcript or statement of the evidence or proceedings at any time prior to entry of an
appealable judgment or order.”
                                                 - 15 -
837 S.W.2d 56, 60 (Tenn. 1992). “A court abuses its discretion when it causes an
injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010); see also Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Under this
standard, we are not permitted to second-guess the trial court’s decision or substitute our
discretion for that of the lower court. Beecher, 312 S.W.3d at 524. Mr. Loftis is the
appellant here, and the appellant is normally the party taxed with the cost of preparing the
transcript of proceedings for purposes of an appeal. See TENN. R. APP. P. 24(b). Mr.
Loftis has failed to show the trial court abused its discretion in assessing him with the
cost of preparing the transcript of the proceedings. Thus, we affirm the trial court’s
assessment of the cost to Mr. Loftis.

       E. Mr. Loftis’s Request for Sanctions

        We turn next to Mr. Loftis’s argument that Mr. Rayburn should be sanctioned for
suggesting that Mr. Loftis’s attorney’s response to the trial court judge about the meaning
of “they” in the newspaper article can be treated as a judicial admission. The Court of
Appeals has stated that “a statement of counsel in pleadings or stipulation or orally in
court is generally regarded as a conclusive, judicial admission . . . .” Belew v. Gilmer,
No. 01-A-019010-CV-00365, 1991 WL 45396, at *6 (Tenn. Ct. App. Apr. 5, 1991); see
also Garland v. Seaboard Coastline R.R. Co., 658 S.W.2d 528, 531 (Tenn. 1983) (stating
counsel’s admission in open court during hearing on motion to dismiss “is binding on the
defendant in this Court”). Mr. Loftis fails to address or distinguish these cases, and he
fails to explain why Mr. Rayburn’s characterization of Mr. Loftis’s attorney’s response
should not be treated as a judicial admission that is binding on Mr. Loftis or to cite any
authority in support of his request for sanctions. We, therefore, find Mr. Loftis’s
suggestion that Mr. Rayburn should be sanctioned has no merit.

       F. Issues Mr. Rayburn Raises on Appeal

      Mr. Rayburn argues that he is entitled to attorney’s fees pursuant to Tenn. Code
Ann. § 29-20-113(a). This statute provides, in relevant part:

       [I]f a claim is filed with a Tennessee or federal court, the Tennessee claims
       commission, board of claims, or any other judicial body established by the
       state or by a governmental entity of the state, against an employee of the
       state or of a governmental entity of the state in the person’s individual
       capacity, and the claim arises from actions or omissions of the employee
       acting in an official capacity or under color of law, and that employee
       prevails in the proceeding as provided in this section, then the court or other
       judicial body on motion shall award reasonable attorneys’ fees and costs
       incurred by the employee in defending the claim filed against the employee.

                                           - 16 -
Mr. Rayburn states in his brief that “[t]he Trial Court did not adjudicate Mr. Rayburn’s
claim for attorney’s fees, presumably because other fee-shifting statutes provide for such
adjudication only after the appellate process has been exhausted.” In the footnote that
follows this statement, Mr. Rayburn refers the reader to Tenn. Code Ann. § 20-12-
119(c)(3). Subsection (c)(1) requires an award of costs, including attorney’s fees, when
the motion to dismiss is successful. Subsection (c)(3) states:
           An award of costs pursuant to this subsection (c) shall be made only after
           all appeals of the issue of the granting of the motion to dismiss have been
           exhausted and if the final outcome is the granting of the motion to dismiss.
           The award of costs and attorneys’ fees pursuant to this section shall be
           stayed until a final decision which is not subject to appeal is rendered.7

Due to an absence of findings about Mr. Rayburn’s status under Tenn. Code Ann. § 29-
20-113(a) and the dictates of Tenn. Code Ann. § 20-12-119(c)(3), we remand this matter
to the trial court for a determination of the amount of attorney’s fees, if any, to be
awarded.
       Mr. Rayburn next argues he is entitled to attorney’s fees for defending against a
meritless claim for sanctions. Mr. Rayburn contends that Mr. Loftis, in asking that Mr.
Rayburn be sanctioned for characterizing Mr. Loftis’s attorney’s response to the trial
court judge’s question about the meaning of “they” in the newspaper article as a judicial
admission, should have filed a motion pursuant to Tenn. R. Civ. P. 11.03, which he did
not do.8 However, Mr. Rayburn cites no authority in support of his request for an award
of attorney’s fees for defending against Mr. Loftis’s claim for sanctions, and we are
aware of no authority entitling him to such fees.




7
 We note that Tenn. Code Ann. § 20-12-119(c)(5) expressly states that subsection (c) “shall not apply to:
(A) Actions by or against the state, other governmental entities, or public officials acting in their official
capacity or under color of law. . . .”
8
    The relevant portion of this rule provides:

           (a) By Motion. A motion for sanctions under this rule shall be made separately from other
           motions or requests and shall describe the specific conduct alleged to violate subdivision
           11.02. It shall be served as provided in Rule 5, but shall not be filed with or presented to
           the court unless, within 21 days after service of the motion (or such other period as the
           court may prescribe), the challenged paper, claim, defense, contention, allegation, or
           denial is not withdrawn or appropriately corrected. If warranted, the court may award to
           the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in
           presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be
           held jointly responsible for violations committed by its partners, associates, and
           employees.
                                                     - 17 -
        Mr. Rayburn’s final argument is that Mr. Loftis’s appeal was frivolous and that he
is entitled to an award of damages for having to defend a frivolous appeal. Mr. Rayburn
relies on Tenn. Code Ann. § 27-1-122 for this argument, which provides:

      When it appears to any reviewing court that the appeal from any court of
      record was frivolous or taken solely for delay, the court may, either upon
      motion of a party or of its own motion, award just damages against the
      appellant, which may include, but need not be limited to, costs, interest on
      the judgment, and expenses incurred by the appellee as a result of the
      appeal.

Any award under this statute “rests in the appellate court’s sound discretion,” which “is
exercised ‘sparingly so as not to discourage legitimate appeals.’” Eberbach v. Eberbach,
535 S.W.3d 467, 475 (Tenn. 2017) (quoting Whalum v. Marshall, 224 S.W.3d 169, 181
(Tenn. Ct. App. 2006)). We decline to find that Mr. Loftis’s appeal was frivolous and
deny Mr. Rayburn’s request for fees pursuant to this statute.

                                    III. CONCLUSION

       For the reasons stated above, we affirm the trial court’s judgment dismissing Mr.
Loftis’s amended complaint. The issue of attorney’s fees is remanded to the trial court.
The costs of this appeal are taxed against the appellant, Thomas Nathan Loftis, Sr., for
which execution shall issue if necessary.


                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE




                                          - 18 -
