                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    JULY 11, 2000 Session

MAE BEAVERS, ET AL. v. THE LEBANON DEMOCRAT NEWSPAPER, ET
                              AL.

                  Direct Appeal from the Circuit Court for Wilson County
           No. 10573; The Honorable Tom E. Gray, Judge, Sitting by Interchange



                  No. M1999-02401-COA-R3-CV - Filed November 30, 2000


This appeal arises from an action initiated by Plaintiffs, Mae and Jerry Beavers, against the
Defendant newspaper, the Lebanon Democrat, for libel and slander. The Beavers’ claim arises out
of two separate articles published by the newspaper. The trial court granted the newspaper’s motion
for summary judgment, holding that the first article was substantially true and the second article was
a non-actionable opinion. The Beavers appeal.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Ernest W. Williams, Dana C. McLendon, III, for Appellants

Alfred H. Knight, Alan D. Johnson, for Appellees

                                             OPINION

Both at the time the underlying action arose and at present, Mae Beavers (“Beavers”) was serving
as a state representative for the legislative district that includes Wilson County. Mae Beavers is
married to Jerry Beavers, an employee of the United Parcel Service. The Lebanon Democrat
(“Newspaper”) is a daily newspaper published in Wilson County.

       On or about August 6, 1998, a local police lieutenant named Barry Graves witnessed Beavers
and her husband “running with a campaign yard sign” at a polling location around two in the
morning. The lieutenant was off-duty at the time and in the process of placing campaign signs for
another candidate. According to Graves, he could not see what sign Beavers was holding, and he
could not say whether it was one of her own, or another candidate’s sign.
         Following the incident, Newspaper employees contacted Beavers for a comment, and she
refuted the allegation.1 On August 11, 1998, Newspaper again contacted Beavers to inform her of
their intention to include the allegation in a political opinion column to be printed the following day.
At her request, Beavers was read the article by its author, Clint Brewer. The article included in
relevant part:
                         The 1998 Wilson County General Election is over and the
                 conspiracy theorists are out in full force. Perhaps it would all be
                 easier to stomach if the folks questioning the vote totals weren’t the
                 candidates who got obliterated at the polls. In relation to the Oliver
                 Stone disciples among our field of candidates and would-be public
                 servants, the post-election hangover had brought the typical rash of
                 rumors and innuendo...
                         Perhaps the most pervasive and irresponsible rumor is that
                 57th District State Representative Mae Beavers was caught red handed
                 by law enforcement officials stealing campaign signs from a polling
                 place in the wee morning hours. Beavers was very succinct in her
                 defense saying simply, “It is a vicious lie.”
                         Yet Wilson County Sheriff’s Department Lieutenant Barry
                 Graves maintains he saw Beavers at 2:00 a.m. on August 5/6 at a
                 polling location off Central Pike accompanied by her husband Jerry
                 Beavers. “We were off putting up some of our signs. We came up
                 the road and saw somebody run toward the parking lot. I know her
                 and her and her husband was on the other side of the road.”
                         Graves added that he did not actually see Beavers or her
                 husband taking any signs though he said Beavers had one in her hand.
                 Graves could also not positively identify which campaign sign
                 Beavers allegedly was holding, “I don’t know if something got
                 stopped before it was started,” Graves said, adding he was off duty at
                 the time of the alleged incident.
                         Beavers reiterated her denial that the incident ever took place
                 and said she plans to consult with her attorney regarding Graves’
                 statement. “Nobody saw me and nobody stopped me. It is a
                 complete falsehood,” Beavers said.
                         And though public officials have been caught and charged in
                 the recent past for messing with campaign signs, a survey of offense
                 reports at the Sheriff’s Department found no report was filed on the
                 alleged incident involving Beavers.




         1
          In response to interrogatories submitted to the Beavers after the suit was initiated, they admitted they were
present at the polling place in the early morning hours of August 6, 1998. Mae Beavers also admitted to having
campaign signs in her possession.

                                                         -2-
         Despite Beavers’ objection, the article was published on August 12, 1998. Another article
concerning the incident was published on August 17, 1998. The August 17 article was written by
Chris Floyd. Although the article did not specifically mention Mae Beavers, the parties acknowledge
that it referred to her. The article included the following:

                            But what about the behavior that some of our most
                    “respectable” candidates exhibited during the political season?
                    Attacks by proxy, using third parties to do their dirty work; malicious
                    distortions of fact, and character assassination by innuendo; even the
                    petty act of sign stealing. (In fact, one prominent elected official
                    narrowly escaped arrest for tearing down signs on election eve–and
                    they didn’t even have an opponent! It was just sheer personal spite.)
                    (emphasis added)

       On September 15, 1998, Beavers served written notice to the newspaper of the “false and
defamatory statement” contained in the two articles pursuant to section §29-24-103 of the Tennessee
Code.2 According to Beavers, the newspaper did not publish a “full and fair retraction, correction
or apology.” Thereafter, the Beavers filed suit against Newspaper3 for libel and slander in the
Wilson County Circuit Court.

        Newspaper moved for summary judgment on the Beavers’ claim pursuant to Rule 56 of the
Tennessee Rules of Civil Procedure. The trial court granted Newspaper’s motion, holding the first
article was “substantially true” and the second article contained no false defamatory statements,


          2
            Tenn. Cod e Ann. § 29-24 -103 provides:
           (a) Before any civil action is brought for publication, in a newspaper or periodica l, of a libel, the plaintiff sha ll,
at least five (5) days before instituting such actio n, serve notice in writing on the d efendant, specifying the article and
the statements th erein which he alleges to be fa lse and defa matory.
           (b)(1) If it appears u pon the trial tha t said article was published in good faith, that its falsity was due to an honest
mistake of the facts, and that there were re asonable grounds fo r believing that the statements in said article were true,
and that within (10) days after the service of said notice, or in the next regular edition of said newspaper or period ical,
if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same
editions, and in the case of a daily newsp aper, in all editions of the day of such publication, or corresponding issues of
the newspaper or periodical in which said article appeared; and in the case of newspapers on the front page thereof, and
in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in
as conspicuous a plat or type a s was said orig inal article, then the p laintiff shall recover only actual, and not punitive,
damages.
           (2) Said exem ption from p unitive dama ges shall not ap ply to any a rticle about or affecting a candidate for
political office, published within ten (10) days before any election for the office for which he is a candidate.




          3
           The Beavers filed suit against Newspaper, Sam Hatcher (Newspaper’s CEO), Clint Brewer, Chris Floyd, and
Lieutenant Graves. For purposes of appeal, the Beavers do not pursue the claim against Graves. (see Supp. record) In
addition, it appears that the Beavers do not pursue the claim against Brewer.

                                                                -3-
Beavers did not show malice on the part of its author, and it was a non-actionable “expression of
opinion.” The Beavers appeal.
                                           Analysis

        As a preliminary matter, we find it appropriate to note that neither party addresses the August
12 article on appeal. Instead, both parties focus solely on the August 17 article and its alleged
defamatory qualities. Furthermore, because the August 17 article in no way mentions or refers to
Jerry Beavers, we find it unnecessary to discuss his defamation claim. For that reason, our review
is limited to Mae Beavers’ defamation claim regarding the August 17 article. With the foregoing
in mind, we now turn to the appropriateness of the trial court’s grant of summary judgment.

        Whether the trial court erred in granting or denying a Rule 56 Motion for Summary Judgment
is purely a question of law. See TENN . R. CIV . P. Rule 56.04. On review, no presumption of
correctness attaches to the trial court’s judgment. Therefore, our task is limited to determining
whether the requirements for summary judgment have been met. Cowden v. Sovran Bank/Central
South, 816 S.W.2d 741, 744 (Tenn. 1991). A Motion for Summary Judgment should be granted only
when there is no genuine issue with regard to the material facts relevant to the claim or defense
contained in the motion, and the moving party is entitled to a judgment as a matter of law on the
undisputed facts. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Anderson v. Standard Register
Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its motion
satisfies these requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991).

        The standards governing the assessment of evidence in the summary judgment context are
also well established. Courts must view the evidence in the light most favorable to the nonmoving
party and must also draw all reasonable inferences in the nonmoving party's favor. Byrd, 847
S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the
inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. Bain
v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). With the foregoing in mind, we now turn to the case
at bar.
                                           Defamation

        On appeal, the Beavers assert that the August 17 article defamed Mae Beavers, a public
official. Newspaper asserts that the article was not defamatory and that it was merely an expression
of opinion. The trial court found in favor of Newspaper, holding that the article was non-actionable.
For the following reasons, we find that the trial court erred in granting summary judgment on this
issue.

        First, in analyzing a defamation claim, we must determine whether Ms. Beavers is a public
official for purposes of this action. Although the term “public official” has not been specifically
defined, it causes us no particular concern. Usually, the title and nature of the office will provide
the answer. As the Tennessee Supreme Court stated in Press, Inc. v. Verran, 569 S.W.2d 435 (1978),




                                                 -4-
                  The occupant of any position in any branch of government who
                  exercises any public function is subject to the New York Times rule
                  as to all conduct in his official capacity or as to any conduct that
                  might adversely affect his fitness for public office, if he has or
                  appear(s) to the public to have, substantial responsibilities for or
                  control over the conduct of governmental affairs.

Id. at 441.

Accordingly, due to Mae Beavers status as a state representative, we find that she is a public official
for purposes of this action.

        The seminal case involving a libel action brought by a public official is New York Times Co.
v. Sullivan, 376 U.S. 254 (1964). The Supreme Court noted that there is “a profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide-
open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials.” See id. at 270. In order to assure that the press will not be
hampered in its reporting of official events or conduct, the Supreme Court stated that a public official
could not collect damages for a defamatory falsehood related to his official conduct unless the
statement was made with “actual malice.” Moreover, the Court stated the following:

                  [t]he constitutional guarantees require, we think, a federal rule that
                  prohibits a public official from recovering damages for a defamatory
                  falsehood relating to his official conduct unless he proves that the
                  statement was made with “actual malice”– that is, with knowledge
                  that it was false or with reckless disregard of whether it was false or
                  not.

See id. at 279.

        In Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978), our supreme court stated that, “the
Supreme Court of the United States has constitutionalized the law of libel and, in material
particulars, has preempted state statutory and decisional law in cases and controversies involving the
communications media.” The court also referred to Article I, Section 19, of the Tennessee
Constitution, which states the following:

                  That the printing presses shall be free to every person to examine the
                  proceedings of the Legislature; or of any branch or officer of the
                  government, and no law shall ever be made to restrain the right
                  thereof. The free communication of thoughts and opinions, is one of
                  the invaluable rights of man, and every citizen may freely speak,
                  write, and print on any subject, being responsible for the abuse of that
                  liberty.


                                                    -5-
Moreover, in Verran, our supreme court adopted section 580A of the Restatement (Second) of Torts,4
stating that “[w]e believe that these standards meet the criteria of our federal and state constitutions
and we adopt them as the law of this jurisdiction.” Verran, 569 S.W.2d at 442.

         It is thus clear that a public official may not recover in a defamation action from a media
defendant without a showing of “actual malice.” Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn.
1978) (citing Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966)). In the context
of libel actions, liability is not predicated upon “hatred, spite, ill will, or desire to injure” on the part
of the defendant, but only upon the “knowledge of falsity or reckless disregard of the truth” standard.
See Old Dominion Br. NO. 496, Nat’l. Ass’n of Letter Carriers. v. Austin, 418 U.S. 264, 281 (1974).

        Both in the lower court and on appeal, the Beavers assert that the August 17 article falls
within the standard for defamation of a public official. In support of this argument, the Beavers rely
on Newspaper’s admitted knowledge that the campaign sign incident was a rumor. In addition, the
Beavers point out that the very premise of the August 12 article was the “pervasive and irresponsible
rumors” surrounding the election. The Beavers argue that by publishing the August 17 article which
includes the phrase, “In fact,” Newspaper has taken the article out of the realm of mere opinion.
Thus, the Beavers attempt to refute both the trial court’s holding that there was no showing of actual
malice and the holding that the article was non-actionable opinion.

        Newspaper claims that it published the August 17 article without actual malice. According
to Newspaper, it did not consider the campaign sign incident to be either actually or probably false.
In addition, Newspaper claims that the August 17 article was an opinion statement that could neither
be proven true nor false.

       Based on the standards for defamation and the facts of this case, we find that the grant of
summary judgment was not proper. We must view the facts in the light most favorable to the non-
moving party, and as such we find that there are genuine issues of material fact regarding whether
Newspaper acted with actual malice in publishing the August 17 article and whether the article itself
was mere opinion. Specifically, we find that there are material issues of fact regarding whether
Newspaper acted with reckless disregard for the truth of the incident. Accordingly, Newspaper was
not entitled to judgment as a matter of law and the trial court erred in granting the motion for
summary judgment on this issue. Therefore, the decision of the trial court on this issue is hereby
reversed and remanded for further proceedings.




         4
             Section 580A. Defamation of Public Official or Public Figure. One who publishes a false and defamatory
commu nication con cerning a pu blic official or p ublic figure in reg ard to his conduct, fitnes s or role in that capacity is
subject to liability, if, but only if, he (a) knows that the statement is false and that it defames the other person, or (b) acts
in reckless disre gard of these matters. R ESTATEMENT (S E C O N D) OF T ORTS § 580A (1977).

                                                              -6-
                                           Conclusion

         For the foregoing reasons, the grant of summary judgment as to the August 12 article and
Jerry Beavers’ defamation claim is hereby affirmed. The grant of summary judgment as it pertains
to the August 17 article and the defamation claim of Mae Beavers is reversed and remanded for a
trial on the merits. Costs of appeal are taxed one-half to Appellants, Mae & Jerry Beavers, and one-
half to Appellee, The Lebanon Democrat Newspaper, for which execution may issue, if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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