               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  July 22, 2015 Session


      AUSTIN DAVIS v. COVENANT PRESBYTERIAN CHURCH OF
                       NASHVILLE, ET AL.

                 Appeal from the Circuit Court for Davidson County
                      No. 14C2556     Carol L. McCoy, Judge

                         ________________________________

  No. M2014-02400-COA-R9-CV – Filed September 30, 2015
                   _________________________________

A former church member brought suit against the pastor and other defendants not
involved in this appeal. The trial court dismissed all of the plaintiff‟s claims against the
pastor with the exception of the causes of action for defamation and outrageous conduct.
We have concluded that the plaintiff‟s complaint does not make out claims for
defamation or outrageous conduct. The decision of the trial court is, therefore, reversed
and remanded with instructions to dismiss the complaint in in its entirety.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed
                                  and Remanded

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and D. MICHAEL SWINEY, J., joined.

Thomas M. Donnell, Jr., Autumn L. Gentry, and Kelly M. Telfeyan, Nashville,
Tennessee, for the appellant, Stewart James (Jim) Bachmann, Jr.

Austin Davis, Nashville, Tennessee, Pro Se.

                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       The plaintiff, Austin Davis (“Mr. Davis”), is a former member of Covenant
Presbyterian Church of Nashville (“Covenant”). Mr. Davis has brought several lawsuits
against the church, its pastor, and related persons and entities that included allegations
that the church and its agents caused injury to him in furtherance of actions to
fraudulently conceal child sexual abuse by one of its members. One of those lawsuits,
Davis v. Covenant Presbyterian Church of Nashville, No. M2013-02273-COA-R3-CV,
2014 WL 2895898 (Tenn. Ct. App June 23, 2014) (“Davis I”), was decided by this
Court.1

       After the complaint in Davis I was filed in June 2013, Covenant‟s pastor, James
Bachmann (“Pastor Bachmann”), wrote a letter to the congregation that was published in
the church‟s email newsletter. The email stated as follows:

        Dear Brothers and Sisters,
        I write to inform you that a former member, Mr. Austin Davis, has filed a
        lawsuit against our church, seeking damages and making a number of
        serious, but false allegations. You may read something in the papers
        tomorrow or soon thereafter about this. He has also sued the Nashville
        Presbytery, and the Presbyterian Church in America denomination.
        Mr. Davis has made numerous complaints about our church for the last ten
        or eleven years. Our best efforts to resolve these matters proved
        unsuccessful. We are saddened that he has taken this step but will
        cooperate fully with authorities in the coming days. We will also keep you
        well informed as developments arise. Please keep the leadership of the
        church in your prayers, in particular the committee that will be handling
        this: Herb Kneeland, chairman; John Avery, John Bryant, and Ron
        Kimery. Please contact any of these men, or any of the pastors if you have
        questions. Thank you for your prayers!
        Warmly, in Christ,
        Pastor Jim

      Mr. Davis filed a lawsuit on June 23, 2014 against Covenant, Pastor Bachmann,
Nashville Presbytery (“the Presbytery”), and the Presbyterian Church in America (“the
PCA”) alleging causes of action for negligence, negligent and intentional infliction of
emotional distress, false light invasion of privacy, and defamation; he sought thirty-five

        1
           In Davis I, the defendants (Covenant, the pastor, several members, the presbytery, and the
denomination) filed a motion to dismiss the plaintiffs‟ amended complaint, which alleged causes of action
for invasion of privacy; malicious harassment; assault; intentional infliction of emotional distress;
negligence; negligent hiring, training, supervision and retention; and civil conspiracy. Davis I, 2014 WL
2895898, at *1. The trial court granted the defendants‟ motion, holding that the amended complaint
failed to state a claim upon which relief could be granted. Id. at *2. On appeal, this Court affirmed the
trial court‟s dismissal of all of the plaintiffs‟ claims against the presbytery and the denomination. Id. at
*9. We affirmed the dismissal of the plaintiffs‟ claims against the individual defendants and Covenant for
all of the causes of action except the claim for assault. Id. With respect to the claim for assault, we
reversed and remanded for further proceedings. Id.
                                                     2
million dollars in damages. In an amended complaint filed in July 2014, Mr. Davis made
substantially similar allegations and asserted the same causes of action.

        On August 1, 2014, Covenant and Pastor Bachmann filed a motion to dismiss the
amended complaint pursuant to Tenn. R. Civ. P. 12.02(6) for failing to state a claim upon
which relief could be granted. They argued that Mr. Davis‟s claims were barred by the
litigation privilege. In the alternative, the defendants asserted that the plaintiff‟s amended
complaint should be dismissed pursuant to Tenn. Rs. Civ. P. 8.01, 8.05, 12.02(6) and
12.02(1) for failing to provide a short and plain statement of the claims showing the
plaintiff was entitled to relief, and failing to state a claim upon which relief could be
granted. On August 8, 2014, the PCA and the Presbytery filed motions to dismiss the
plaintiff‟s amended complaint. Pastor Bachmann and Covenant also filed a motion for
sanctions against Mr. Davis‟s attorney pursuant to Tenn. R. Civ. P. 11.

       After a hearing in August 2014, the trial court entered an order on September 8,
2014 in which it granted in part and denied in part Covenant and Pastor Bachmann‟s
motion to dismiss. The court granted and stayed the motion for sanctions, granted the
Presbytery‟s motion to dismiss and granted the PCA‟s motion to dismiss. The court
ordered that all of the claims against Covenant be dismissed with prejudice on the
grounds that they failed to state a claim upon which relief could be granted, that they
were barred by the statute of limitations, and that they were barred by res judicata. As to
Pastor Bachmann, the trial court held:

       All of Plaintiff‟s claims against Pastor Bachmann, other than Plaintiff[‟s]
       claims for defamation and outrageous conduct, are DISMISSED with
       prejudice to the refiling of the same on the grounds that they fail to state a
       claim upon which relief can be granted; are barred by the statute of
       limitations; and are barred by the doctrine of res judicata. Accordingly, at
       trial, the only allegation of the Amended Complaint that Plaintiff can
       present to the jury in support of his claim for defamation and outrageous
       conduct is paragraph 23 [which contains the newsletter email quoted above]
       ....

Finding no just reason for delay, the trial court designated this order a final order
pursuant to Tenn. R. Civ. P. 54.02.

        On October 8, 2014, Pastor Bachmann filed a motion for permission to file an
interlocutory appeal of the September 8, 2014 order and to stay the proceedings. The
trial court, in a November 2014 order, granted Pastor Bachmann‟s motion for permission
to file an interlocutory appeal and to stay the proceedings. On December 4, 2014, Pastor
Bachmann filed an application for permission to appeal pursuant to Tenn. R. App. P. 9,
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and this Court granted the application on January 2, 2015.

       On appeal, Pastor Bachmann argues that the trial court erred in failing to dismiss
the plaintiff‟s claims against him for defamation and outrageous conduct.

                                 STANDARD OF REVIEW

        A motion to dismiss for failure to state a claim pursuant to Tenn. R. Civ. P.
12.02(6) challenges the legal sufficiency of the complaint rather than the strength of the
plaintiff‟s proof or evidence. Webb v. Nashville Area Habitat for Humanity, Inc., 346
S.W.3d 422, 426 (Tenn. 2011). The motion admits the truth of all averments contained in
the complaint but asserts that such facts do not constitute a cause of action. Id. In
considering a motion to dismiss, a court must liberally construe the complaint,
“„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)). The scope of review following the grant or denial of a motion to dismiss
involves a question of law, which we review de novo, without any presumption of
correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894-95 (Tenn. 2011).

                                        ANALYSIS

                                       Defamation

       To establish a prima facie case of defamation, the plaintiff must prove the
following elements:

      (1) a party published a statement; (2) with knowledge that the statement
      was false and defaming to the other; or (3) with reckless disregard for the
      truth of the statement or with negligence in failing to ascertain the truth of
      the statement.

Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005). The basis for a claim
for defamation “„is that the defamation has resulted in an injury to the person‟s character
and reputation.‟” Brown v. Mapco Express, Inc., 393 S.W.3d 696, 708 (Tenn. Ct. App.
2012) (quoting Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001)).
This Court has adopted the following description of what constitutes a defamatory
statement:

      For a communication to be libelous, it must constitute a serious threat to the


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        plaintiff‟s reputation. A libel[2] 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.”

Id. (quoting Kersey v. Wilson, No. M2005-02106-COA-R3-CV, 2006 WL 3952899, at
*3 (Tenn. Ct. App. Dec. 29, 2006)) (further citations omitted) (emphasis added).
Furthermore, “[m]ere hyperbole or exaggerated statements intended to make a point are
not actionable defamatory statements.” Farmer v. Hersh, No. W2006-01937-COA-R3-
CV, 2007 WL 2264435, at *5 (Tenn. Ct. App. Aug. 9, 2007).

        Because a defamatory statement must be “factually false in order to be actionable,
comments upon or characterizations of published facts are not in themselves actionable.”
Stones River Motors, Inc. v. Mid-South Publ’g Co., Inc., 651 S.W.2d 713, 720 (Tenn. Ct.
App. 1983). A writer‟s comments upon true and nondefamatory published facts are not
actionable, “even though [the comments] are stated in strong or abusive terms.” Id. The
writer‟s opinions have constitutional protection under the First Amendment. Id. This
Court has held that “an opinion is not actionable as libel unless it implies the existence of
unstated defamatory facts.”3 Id. at 722.

        The question of “whether a communication is capable of conveying a defamatory
meaning is a question of law for the court to decide in the first instance; it is then for the
jury to decide whether the communication was in fact so understood by those who
received it.” Brown, 393 S.W.3d at 708-09 (citations omitted). In making this
determination, a court “must look to the words themselves and [is] not bound by the
plaintiff‟s interpretation of them.” Stones River Motors, 651 S.W.2d at 719.

      We turn now to the email sent by Pastor Bachmann and alleged by Mr. Davis to be
defamatory. According to Mr. Davis‟s amended complaint, the statements in the email
meant, were intended to mean, and were understood to mean that “everything stated in

        2
        Libel is a written form of defamation. Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc.,
876 S.W.2d 818, 820 (Tenn.1994).
        3
           The Restatement (Second) of Torts gives the following example:
         A writes to B about his neighbor C:
         “I think he must be an alcoholic.” A jury might find that this was not just an expression
         of opinion but that it implied that A knew undisclosed facts that would justify this
         opinion.
Stones River Motors, 651 S.W.2d at 721 (quoting RESTATEMENT (SECOND) OF TORTS § 566, p. 174
(1977)).
                                                    5
the lawsuit was a lie,” that he “has been filing multiple lawsuits for ten or eleven years
which are predicated on lies,” that Mr. Davis is a liar, that he is “fundamentally
dishonest,” and that he “has been dishonest for at least ten or eleven years.” While Mr.
Davis may have understood the email in this way, we disagree that the email could
reasonably be construed as defamatory.

        Most of the statements in the email are factually true. Mr. Davis focuses upon
Pastor Bachmann‟s statements that the lawsuit makes “a number of serious, but false
allegations,” and that “Mr. Davis has made numerous complaints about our church for the
last ten or eleven years.” The latter statement is a factual one. The former statement is a
statement of opinion, denying the allegations of the lawsuit. We do not find that the
words of the email can “„reasonably be construable as holding the plaintiff up to public
hatred, contempt or ridicule.‟” Brown, 393 S.W.3d at 708 (quoting Kersey, 2006 WL
3953899, at *3). Rather, they are, at most, “„annoying, offensive, or embarrassing.‟” Id.
Pastor Bachmann was informing the members of his congregation of a lawsuit against
him and the church. He gave his opinion that the allegations in the lawsuit were false,
just as he would deny them in an answer filed in court.

      We hold, as a matter of law, that the email is not capable of conveying a
defamatory meaning. Thus, the trial court erred in failing to dismiss this count of the
complaint.

                                    Outrageous conduct

        The other cause of action against Pastor Bachmann not dismissed by the trial court
is the claim for “outrageous conduct,” which is another term for the intentional infliction
of emotional distress. See Brown, 393 S.W.3d at 703.

        To prove a claim for the intentional infliction of emotional distress, a plaintiff
must establish the following elements: “that the defendant‟s conduct was (1) intentional
or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted
in serious mental injury to the plaintiff.” Rogers v. Louisville Land Co., 367 S.W.3d 196,
205 (Tenn. 2012). This Court has observed that, “A plaintiff‟s burden to demonstrate
outrageous conduct „is not an easy burden to meet.‟” Brown, 393 S.W.3d at 703 (quoting
Weaver v. Pardue, No. M2010-00124-COA-R3-CV, 2010 WL 4272687, at *5 (Tenn. Ct.
App. Oct. 28, 2010)) (further citation omitted). Our Supreme Court has adopted the
following standard from the Restatement (Second) of Torts:

       The cases thus far decided have found liability only where the defendant‟s
       conduct has been extreme and outrageous. It has not been enough that the
       defendant has acted with an intent which is tortious or even criminal, or that
                                              6
       he has intended to inflict emotional distress, or even that his conduct has
       been characterized by “malice,” or a degree of aggravation which would
       entitle the plaintiff to punitive damages for another tort. Liability has been
       found only where the conduct has been so outrageous in character, and so
       extreme in degree, as to go beyond all bounds of decency, and to be
       regarded as atrocious and utterly intolerable in a civilized community.
       Generally, the case is one in which the recitation of the facts to an average
       member of the community would arouse his resentment against the actor,
       and lead him to exclaim, “Outrageous.”

Bain v. Wells, 936 S.W.2d 618, 622-23 (Tenn. 1997) (quoting RESTATEMENT (SECOND)
OF TORTS § 46 cmt. d (1965)).

        Applying these principles to the present case, we find that Pastor Bachmann‟s
behavior cannot be characterized as so outrageous in character or outside the bounds of
decency as to be regarded as atrocious or intolerable in a civilized community. Our
Supreme Court has stated that liability for outrageous conduct “„does not extend to mere
insults, indignities, threats, annoyances, petty oppression or other trivialities.‟” Bain, 936
S.W.2d at 622 (quoting Medlin v. Allied Inv. Co., 398 S.W.3d 270, 274 (Tenn. 1966)).
Pastor Bachmann‟s email may fall in the category of an annoyance, or other triviality; but
we find, as a matter of law, that it does not constitute outrageous conduct or the
intentional infliction of emotional distress. Thus, the trial court erred in failing to dismiss
this count of the complaint against Pastor Bachmann.

       In light of our conclusions on these two issues, we need not consider the
application of the litigation privilege.

                                        CONCLUSION

       The judgment of the trial court is reversed, and the complaint against Pastor
Bachmann should be dismissed in its entirety. Costs of appeal are assessed against the
appellee, Austin Davis, and execution may issue if necessary.



                                                             _________________________
                                                             ANDY D. BENNETT, JUDGE




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