                                              I N     T H E C O U R T O F A P P E A L S                                               FILED
                                                          A T K N O X V I L L E                                                 January 28, 1999

                                                                                                                               Cecil Crowson, Jr.
                                                                                                                               Appellate C ourt
                                                                                                                                   Clerk



W . D . B U T L E R           a n d     J .   A .                         )         K N O X C O U N T Y
H A L L I B U R T O N                                                     )         0 3 A 0 1 - 9 8 0 4 - C V - 0 0 1 4 6
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            P l a i n t i f f s - A p p e l l a n t s                     )
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            v .                                                           )         H O N . H A R O L D           W I M B E R L Y ,
                                                                          )         J U D G E
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D I V E R S I F I E D E N E R G Y ,           I N C . ,                   )
A P P O L O F U E L S , I N C . ,             a n d R A N D Y             )
C . E D G E M O N                                                          )
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            D e f e n d a n t s - A p p e l l e e s                        )        A F F I R M E D       A N D     R E M A N D E D




G A R R Y     F E R R A R I S     O F     K N O X V I L L E       F O R   A P P E L L A N T S

F R A N C I S L . L L O Y D , J R . ,                 O F     K N O X V I L L E       F O R       D I V E R S I F I E D     E N E R G Y ,   I N C . ,
a n d R A N D Y C . E D G E M O N

A N D R E W       C R A I G   T R O U T M A N       O F     K N O X V I L L E       F O R       A P O L L O   F U E L S ,     I N C .




                                                              O   P   I   N     I     O     N




                                                                                                                  Goddard, P.J.




                        This is a suit by W. D. Butler and J. A. Halliburton,

employees of Norfolk Southern Corporation against Diversified

Energy/Appolo Fuels, Inc., and Randy C. Edgemon, President of

Diversified Energy, seeking damages for defamation.
          The Trial Court granted a summary judgment against the

Plaintiffs, resulting in this appeal, wherein they raise the

following issues:



     I.   Is there a genuine issue of material fact whether
     Defendant’s letter was capable of being understood as
     defamatory?

     II. Is there a genuine issue of material fact whether
     Defendant published the June 2, 1995 letter?

     III. Did the trial court err in failing to deny
     Defendants’ motion for summary judgment for Defendants’
     non-compliance with Tennessee Rule of Civil Procedure
     56.03?



          The following passages taken from the Plaintiffs’ brief

accurately state the facts necessary for disposition of this

appeal:



                     STATEMENT OF THE FACTS

         Plaintiffs Butler and Halliburton have worked for
    Norfolk Southern Corporation (“Norfolk Southern”) since
    1972 and 1964, respectively. In June 1995, Mr. Butler
    was an engineer and Mr. Halliburton a trainman. For
    approximately six months prior to June 1995, Mr. Butler
    and Mr. Halliburton worked on the same crew. The crew
    worked the Middlesboro mine run which included
    Defendant Appolo Fuels, a customer of Norfolk Southern.

         Appolo Fuels is a mining company. It has a close
    relationship with Defendant Diversified Energy, Inc.
    who handles Appolo Fuels’ sales. Defendant Randy C.
    Edgemon is President of Diversified Energy.

         On June 1. 1995, Defendant Edgemon talked to Paul
    Gibson at Norfolk Southern, alleging that Mr. Butler
    and Mr. Halliburton were deliberately delaying the
    trains. Defendant Edgemon wrote a letter to Norfolk
    Southern superintendent Paul Gibson on June 2, 1995,
    that is the basis for Plaintiffs’ complaint. The
    letter reads as follows:

     Dear Mr. Gibson:

     We at Diversified Energy/Appolo Fuels are
     experiencing disruptive problems out of two Norfolk
     Southern crew employees. The employees are a Mr.

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      Wayne Butler and Jay Halliburton. We are requesting
      that the two named employees be kept from coming onto
      Appolo Fuels property.

      Sincerely,

      DIVERSIFIED ENERGY, INC.

      Randy C. Edgemon
      President



          Notwithstanding the fact that this case was resolved by

summary judgment, a preliminary determination of whether the

letter is capable of being understood as defamatory is a question

of law to be determined by the court.   Memphis Publishing Co. v.

Nichols, 569 S.W.2d 412 (Tenn.1978).



          In Stones River Motors, Inc., v. Mid-South Publishing

Co., 651 S.W.2d 713 (Tenn.App.1983), this Court stated the

following (at page 719):



          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.” W. Prosser,
     Law of Torts, § 111, p. 739 (4th Ed.1971).



          The Defendants have cited the case of Moore v. Dreger,

576 S.W.2d 759 (Tenn.1979), which we believe is dispositive of

this appeal.   The opinion, which we quote in its entirety, is

short and succinct, as is the wont of Justice Henry, its author.



                              OPINION

     HENRY, Chief Justice.


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          Respondents Dreger and Konvalinka, two waitresses
     employed by petitioner Kentucky Rib-Eye, brought this
     action for slander per se, alleging injury to their
     occupational reputation. According to the complaint,
     respondent Moore, who managed the restaurant, stated in
     the presence of customers:

      You all are no longer employed here because of giving
      bad service. I had to pay for three meals for you
      [Dreger] and three meals for you [Konvalinka] because
      of the bad service you all gave.

          The trial court granted petitioners’ motion to
     dismiss for failure to state a claim under
     Tenn.R.Civ.P. 12.02(6). The Court of Appeals reversed
     and remanded for trial, ruling that a jury question had
     been raised. We granted certiorari to consider whether
     the statement is actionable under the circumstances.
     Upon consideration, we hold that it is not.

        FONES, COOPER, BROCK and HARBISON, JJ., concur.



          Moreover, in Stones River, Judge Conner lists a number

of cases--including those from Tennessee, sister states, and

federal courts--holding that various characterizations of the

plaintiffs were not actionable (651 S.W.2d at page 722):



     Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir.1978)
     (use of the word “swindle” to characterize the
     plaintiff’s violation of Michigan’s Blue Sky law, while
     “ill chosen” held not actionable); Fram v. Yellow Cab
     Co. of Pittsburgh, 380 F. Supp. 1314, 1329
     (W.D.Pa.1974) (statement that the plaintiff’s previous
     statements reflect “the sort of paranoid thinking that
     you get from a schizophrenic” held not actionable,
     because it would be understood as mere “rhetorical
     hyperbole”); Reoux v. Glenn Falls Post Co., 18 Misc.2d
     1097, 190 N.Y.S.2d 598, 600-01 (N.Y.Sup.Ct.1959)
     (statement that plaintiff’s refusal to tell a court the
     whereabouts of certain money was “contumacious conduct”
     was not actionable, because it simply expressed an
     opinion that the plaintiff was “stubborn or contrary or
     obstinate or disobedient”); Schy v. Hearst Pub. Co.,
     205 F.2d 750 (7th Cir.1953) (charging the plaintiffs
     with “gestapo-like” tactics not actionable, because it
     was merely “a somewhat rhetorical way of saying that
     their conduct was dictatorial”); Bleecker v. Drury, 149
     F.2d 770 (2nd Cir.1945) (statement that a lawyer had
     committed “a fraud upon the court” was merely a
     “bombastic characterization of the plaintiff’s
     maneuvers” in representing his client, and was not
     actionable as libel); Williams v. Rutherford Freight

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     Lines, Inc., 10 N.C.App. 384, 179 S.W.2d 319, 323
     (1971) (statement in the course of a labor dispute that
     the plaintiffs were “gangsters” is “nothing more than
     vituperation or name calling” and is not actionable);
     Heft v. Burk, 302 So.2d 59, 60 (La.App.1974)
     (statemennt that the plaintiff was “pirating” employees
     away from the defendant and that his actions were
     “totally unethical” merely expressed the defendant’s
     strong opinion concerning the plaintiff’s attempts to
     hire employees away from him, and were not actionable);
     Brown v. Newman, 224 Tenn. 297, 454 S.W.2d 120 (1970)
     (statement “have the skids been greased at city
     council?” not actionable).



             Finally as to the first issue, we find a case from

Minnesota, McGrath v. TCF Bank Sav., 502 N.W.2d 801, (Minn.

App.1993), in which the language used is strikingly similar to

the case at bar.                 In that case the word describing the plaintiff

was “troublemaker.”                      In holding the use of that word was not

actionable, the Court of Appeals of Minnesota, stated the

following (at page 808):1



          McGrath argues the trial court erred in granting
     JNOV on his defamation claim. We disagree. The oral
     statements at issue fall into three categories: (1)
     threats that McGrath would be blackballed at other
     banks; (2) statements between managers about McGrath;
     and (3) a manager’s statement to employees about
     McGrath. Essentially, all the managers’ statements
     involve the phrase “troublemaker.” The trial court
     found the phrase “troublemaker” was not actionable
     because:

         Unlike the accusation that a person is “dishonest,”
         which suggests specific acts which society has
         determined to be improper, making trouble is
         generally in the eye of the beholder, and for that
         reason cannot be proven true or false.

          The trial court properly determined the phrase
     “troublemaker” was not actionable under either
     constitutional or common law standards. The term
     “troublemaker” lacks precision and specificity. This
     phrase also fails to suggest verifiable false facts
     about McGrath. Finally, the ambiguity of the term
     “troublemaker” prevents any underlying facts from being


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             F o o t n o t e s   a r e   o m i t t e d .

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     inferred from this phrase. Accordingly, the phrase
     “troublemaker” is not actionable because it is
     constitutionally protected.

          Further, the statements’ lack of precision,
     specificity, and verifiability prevents the inference
     that McGrath committed specific acts that society finds
     reprehensible. Thus, in this case, the phrase
     “troublemaker” is not defamatory under the common law.
     See Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d
     471, 473 (Minn.App.1991) (under common law, adjective
     such as “dishonest” was defamatory because it implied
     the commission of specific act or conduct society found
     reprehensible).



           In light of our disposition of issue one, it is

unnecessary that we address issue two.



           As to issue three, we agree with counsel for the

Defendants that the provision of Rule 56.03 of the Tennessee

Rules of Civil Procedure, directing a simple concise statement of

the material facts to accompany any motion for summary judgment,

is for the benefit of the trial court, and could be, as it was in

this case, waived.   Moreover, even if we were to find that this

issue has merit, it would require remand to the Trial Court where

another motion for summary judgment could be made, meeting the

omitted requirement of Rule 56.03.   Even if a second motion for

summary judgment is not filed and the facts remain as are

contained in the present record, a motion for a directed verdict

would be sustained at the conclusion of the Plaintiffs’ proof.



           For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below.   Costs of appeal are adjudged against the Plaintiffs and

their surety.




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                                                            H o u s t o n M . G o d d a r d , P . J .


C O N C U R :




_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
D o n T . M c M u r r a y , J .



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C h a r l e s D . S u s a n o , J r . , J .




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