                                                                                         10/04/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 6, 2019 Session

            THOMAS J. ELSTEN, JR. V. JEFFREY COKER ET AL.

                  Appeal from the Circuit Court for Sumner County
                    No. 2017-CV-446     Joe H. Thompson, Judge


                            No. M2019-00034-COA-R3-CV


This appeal arises from a defamation action filed by one mayoral candidate against
another for statements made during the City of Hendersonville, Tennessee mayoral race.
Accordingly, the issues are to be judged based on the more stringent standards that apply
in a defamation action brought by a public figure. After engaging in discovery, the
defendant filed a motion for summary judgment, contending the plaintiff lacked evidence
showing the defendant published the statements with actual malice. To withstand the
motion for summary judgment, the plaintiff had the burden to demonstrate he would be
able to prove clearly and convincingly that the defendant acted with actual malice, which
required proof the defendant had knowledge that the facts he published about the plaintiff
were false or that he acted with reckless disregard as to their truth or falsity. The trial
court found that the plaintiff “did not produce clear and convincing evidence of actual
malice at the summary judgment stage” and summarily dismissed the action. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and JOHN W. MCCLARTY, JJ., joined.

Kirk L. Clements, Nashville, Tennessee, for the appellant, Thomas J. Elsten, Jr.

John J. Griffin, Jr. and Michael A. Johnson, Nashville, Tennessee, for the appellee,
Jeffrey Coker and Jeff Coker for Mayor.

                                       OPINION

       Thomas J. Elsten, Jr. (“Elsten”) and Jeffrey Coker (“Coker”) ran for mayor of
Hendersonville in 2016. Just prior to the November election, Coker and the Jeff Coker for
Mayor campaign organization published and disseminated a pamphlet to Hendersonville
residents titled: “Are You Tired of the ‘Revolving Door’ of Career Politicians and
Special Interests?” Next to Elsten’s picture and name, the pamphlet stated, inter alia, “An
[sic] an alderman, he was caught in an insider deal to sell stolen property to the
Hendersonville Parks Department and is currently under investigation by the Tennessee
Ethics Commission for campaign finance violations relating to illegal contributions from
a construction company owner.”1 (Hereinafter, these two statements are referred to as the
“insider deal” and the “ethics investigation,” respectively.)

        In May 2017, Elsten filed a complaint against Coker and his campaign
organization2 for defamation, defamation per se, and defamation by implication/false
light3, alleging they published false, defamatory statements about Elsten and either knew
the statements were false or made a conscious decision not to investigate their truth.
Coker and his campaign organization answered the complaint, denying the allegations.

       After the parties engaged in discovery, Coker and his campaign organization filed
a joint motion for summary judgment primarily contending that Elsten’s defamation
claim failed as a matter of law because Elsten admitted the truth of both statements. As
for the insider deal, Elsten conceded that in July 2009, when he was an alderman for the
City of Hendersonville, he purchased an all-terrain vehicle known as a “Gator” from a
friend for $1,650. He then sold the Gator to the Hendersonville High School Soccer
Booster Club for $2,500. But he returned the money when the Metropolitan Police
Department informed him the Gator was stolen property and had been seized. The
Hendersonville Police Department created a police report and obtained a signed
statement from Elsten, explaining he did not know the Gator was stolen. Elsten was never
arrested or charged in the case.

        Coker argued that while the insider deal statement was inaccurate in that Elsten
had not sold the Gator to the Hendersonville Parks Department, the statement was
substantially true due to the close connection between the Hendersonville High School
Soccer Booster Club and the Hendersonville Parks Department. This was because, Coker
contended, the Booster Club held its soccer events at Drake’s Creek Park, which was
operated by the Hendersonville Parks Department. Nevertheless, Coker argued that even
if the insider deal statement was materially false, Elsten presented no evidence to show
that Coker knew the statement was false or had “a high degree of awareness” the
statement was false, which was required to prove actual malice.

        1
            The complaint alleged other defamatory statements, but they are not the subject of this appeal.
        2
           Although the initial complaint referenced the Jeff Coker for Mayor campaign organization,
Elsten’s subsequent filings focused solely on the acts and omissions of Coker.
        3
          The complaint also asserted a claim for intentional infliction of emotional distress, which is not
at issue on appeal.


                                                     -2-
       As for the ethics investigation, Coker contended the statement was based on the
undisputed fact that the Tennessee Ethics Commission received a complaint against
Elsten for campaign finance violations that pertained to alleged illegal campaign
contributions from a construction company owner.

       In his response to the motion for summary judgment, Elsten acknowledged that as
alderman of the City of Hendersonville, he had authority over the Hendersonville Parks
Department; however, he argued the insider deal statement was materially false because
he had no authority over the Hendersonville High School Soccer Booster Club.
Consequently, there was no “insider deal” because his position as alderman was
irrelevant to the sale. Moreover, Elsten contended the implication he intentionally or
knowingly sold stolen property was false.

         Elsten also asserted that Coker had a high degree of awareness the insider deal
statement was false. To support this assertion, Elsten cited facts in the record showing (1)
Coker relied solely on rumors; (2) Coker consistently spoke favorably of Elsten in emails,
and stated he had no reason to believe Elsten would be involved any anything
“untoward;” (3) Coker’s policy was to provide a source for the statements in the subject
pamphlet but, unlike other statements, Coker did not provide a source for the insider deal
statement; and (4) Coker failed to consult with anyone who had direct knowledge of the
incident. Therefore, Elsten argued Coker published the statement with reckless disregard
to its truth.

       As for the ethics investigation, Elsten conceded someone filed a complaint against
him with the Tennessee Ethics Commission for an alleged campaign finance violation.
However, the alleged violation was not related to “illegal contributions” because no
authoritative body declared he acted illegally. Therefore, the statement was false as a
matter of law.

       Following a hearing, the trial court granted Coker’s motion for summary judgment
ruling that Elsten “did not produce clear and convincing evidence of actual malice at the
summary judgment stage.” The court found Elsten lacked proof that “the source of
[Coker’s] knowledge was of doubtful veracity,” and that “any fact known to [Coker] . . .
would cause him to be highly aware of the probable falsity of his statement.” This appeal
followed.

                                          ISSUE

       Although the parties raised several issues, because it is undisputed that Elsten is a
public figure, the dispositive issue is whether Elsten came forward with clear and
convincing proof that Coker acted with actual malice when he published the statements at


                                           -3-
issue. See Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 283 (Tenn. Ct. App.
2007); see also Tomlinson v. Kelley, 969 S.W.2d 402, 405 (Tenn. Ct. App. 1997).

                                  STANDARD OF REVIEW

        “Summary judgments are proper in virtually any civil case that can be resolved on
legal issues alone.” Tomlinson, 969 S.W.2d at 405 (citing Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993)). “They are particularly well-suited for defamation cases because the
determination concerning whether the plaintiff is a public figure is a question of law[.]”
Id. (citing McDowell v. Moore, 863 S.W.2d 418, 420 (Tenn. Ct. App. 1992)). They are
also well-suited for defamation cases because “the determination concerning whether a
public figure has come forward with clear and convincing evidence that the defendant
was acting with actual malice” is a question of law. Id. (citing Trigg v. Lakeway
Publishers, Inc., 720 S.W.2d 69, 74 (Tenn. Ct. App. 1986)).

        This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.;
Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). In so doing, we consider the evidence
in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for
summary judgment does not bear the burden of proof at trial, it may satisfy its burden of
production “either (1) by affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. at 265. Instead, the nonmoving party must respond with specific facts
showing that there is a genuine issue for trial. Id. A fact is material “if it must be decided
in order to resolve the substantive claim or defense at which the motion is directed.”
Byrd, 847 S.W.2d at 215. A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.




                                            -4-
                                         ANALYSIS

       Generally, in a defamation action, the plaintiff must prove the defendant published
a false, defamatory statement about the plaintiff with knowledge of its falsity, with
reckless disregard for its truth, or with negligence in failing to ascertain its truth.
Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 317 (Tenn. Ct.
App. 2012) (quoting Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005)).
However, the standard is different and more stringent when the plaintiff is a public figure.
Id. This is because both the First Amendment to the United States Constitution and
Article I, section 19 of the Tennessee Constitution “reflect this country’s ‘profound
national commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open.’” Lewis, 238 S.W.3d at 288 (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964)).

       In the seminal case, New York Times Company v. Sullivan, the U.S. Supreme
Court recognized that to compel the critic of a public official “to guarantee the truth of all
his factual assertions . . . on pain of libel judgments” would “lead[] to a comparable ‘self-
censorship.’” 376 U.S. at 279. The Court held that errors resulting from negligence are
insufficient to recover on a defamation action brought by a public figure. Id. at 279–80.
Instead, when the plaintiff is a public figure, he or she must prove by clear and
convincing evidence that the defendant made the defamatory statements with knowledge
the statements were false or with reckless disregard to their truth, a standard known as
“actual malice.” Id.; Lewis, 238 S.W.3d at 283. Reckless disregard to the truth means the
defendant had a “high degree of awareness of . . . probable falsity.” Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (quoting Garrison v.
Louisiana, 379 U.S. 64, 74 (1964)). In other words, reckless disregard is “the purposeful
avoidance of the truth.” Id. at 692.

        Because negligence is not the standard in a public figure defamation case, a
defendant’s failure “to investigate information provided by others before publishing it,
even when a reasonably prudent person would have done so, is not sufficient by itself to
establish [actual malice].” Lewis, 238 S.W.3d at 301 (citing Harte-Hanks Commc’ns,
Inc., 491 U.S. at 688). Instead, the question is not whether the defendant should have
entertained serious doubts as to the truth of the publication, but whether the defendant, in
fact, did entertain serious doubts. Harte-Hanks Commc’ns, Inc., 491 U.S. at 688 (quoting
St. Amant v. Thompson, 390 U.S. 727, 732 (1968)). That said, the defendant will not
necessarily “insure a favorable verdict by testifying that he published with a belief that
the statements were true.” St. Amant, 390 U.S. at 732. To the contrary, such claims will
not likely prove persuasive when, for example, the plaintiff has shown the story was
“fabricated by the defendant, is the product of his imagination, or is based wholly on an
unverified anonymous telephone call.” Id. Nor will a plaintiff likely prevail when there
are “obvious reasons to doubt the veracity of the informant or the accuracy of his
reports.” Id.

                                            -5-
       “Public figures who desire to pursue defamation actions bear a heavy burden of
proof because of our society’s commitment to the principle that ‘debate on public issues
should be uninhibited, robust, and wide-open.’” Tomlinson, 969 S.W.2d at 405 (quoting
New York Times Co., 376 U.S. at 270). Therefore, to recover damages, the public figure
“must prove with convincing clarity that the defendant acted with actual malice.” Id.
(footnote omitted) (citing Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978);
Moore v. Bailey, 628 S.W.2d 431, 433 (Tenn. Ct. App. 1981)).

        As we explained in Tomlinson v. Kelley, “[t]he concept of actual malice in
defamation cases connotes more than personal ill will, hatred, spite, or desire to injure.”
969 S.W.2d at 405. Instead, “it is limited to statements made with knowledge that they
are false or with reckless disregard to their truth or falsity.” Id. at 406. As a consequence,
“[d]etermining whether a defendant acted with reckless disregard requires the finder of
fact to determine whether the defendant ‘in fact entertained serious doubts as to the truth
of his [or her] publication.’” Id. (quoting Trigg, 720 S.W.2d at 75).

       Therefore, “[w]hen reviewing a grant of summary judgment to a defendant in
[a public figure defamation case], we must ‘determine, not whether there is material
evidence in the record supporting [the plaintiff], but whether . . . the record discloses
clear and convincing evidence upon which a trier of fact could find actual malice.’”
Lewis, 238 S.W.3d at 283 (emphasis added) (quoting Piper v. Mize, No. M2002-00626-
COA-R3-CV, 2003 WL 21338696, at *7 (Tenn. Ct. App. June 10, 2003)).

                            I.     THE INSIDER DEAL STATEMENT

       Elsten argues Coker’s statements were materially false, and he published the
statements with reckless disregard to their truth. With regard to the insider deal statement,
Elsten contends the record reveals (1) Coker relied solely on rumors; (2) Coker held
Elsten in such high esteem that he had obvious reasons to doubt the rumor; and (3) Coker
had ready access to credible sources of information which would have dispelled the
rumor; yet, Coker consciously chose to ignore them.

        For his part, Coker argues both statements are substantially true. Alternatively, he
contends if the statements are materially false, his failure to fully investigate the truth of
the statements before publishing them does not constitute actual malice.

       The subject pamphlet stated: “An [sic] an alderman, [Elsten] was caught in an
insider deal to sell stolen property to the Hendersonville Parks Department . . . .” Elsten
asserted this statement was materially false, in part, because Elsten sold the Gator to the
Hendersonville High School Soccer Booster Club, which unlike the Hendersonville Parks
Department, was not under the purview of the Board of Mayor and Aldermen. Therefore,
it was not an “insider deal.” Coker argued the statement was substantially true because

                                            -6-
the Booster Club held its soccer events at Drake’s Creek Park, which was operated by the
Hendersonville Parks Department.

        To determine whether the statement was materially false, we ask whether an
accurate statement would produce the same effect on the mind of the reader as the
inaccurate statement. 53 C.J.S. Libel and Slander; Injurious Falsehood § 164; Air Wis.
Airlines Corp. v. Hoeper, 571 U.S. 237, 247 (2014) (quoting Masson v. New Yorker
Magazine, Inc., 501 U.S. 496 (1991)). It is undisputed Elsten, as a city alderman, did not
have authority over the Hendersonville High School Soccer Booster Club. Therefore,
referring to his sale to the Booster Club as an “insider deal” would make no sense to the
average reader. Because an accurate statement would produce a different effect on the
mind of the reader than the inaccurate one, the statement was materially false.

       The foregoing notwithstanding, the record does not disclose clear and convincing
evidence upon which a trier of fact could find actual malice. Elsten argues Coker’s sole
reliance on rumors to support the insider deal statement was more than merely negligent;
it was reckless. We disagree.

        Coker testified in his deposition that the incident, which occurred in 2009, had
“been discussed in political circles for a number of years,” and was “fairly common
knowledge.” Coker testified the rumor finally surfaced publicly during the
Hendersonville mayoral race in 2012, when Scott Foster, a candidate for mayor, stated in
a political mailer that Elsten sold stolen property to a school. Coker said at the time, he
believed the statement in the 2012 mailer was true, for the most part; however, he was
sure Mr. Foster was mistaken about the school. He said he talked to around “a half
dozen” people who confirmed it was the Hendersonville Parks Department and not a
school. Yet, he conceded none of those individuals had direct knowledge of the incident.

       Then, in 2015, just prior to the 2016 mayoral race, Coker met Elsten at Cracker
Barrel where Elsten and Coker discussed Scott Foster’s 2012 mailer. Coker did not
remember if Elsten specifically denied the incident4 but only recalled that Elsten said,
“Scott Foster did him dirty.” Coker testified that at the time,

       the substance and facts of it I knew to be true through conversations with
       other folks. It seemed the detail was wrong, that it was not actually a school
       that was alleged in 2012, it was the parks department. I had heard that.
       That’s what I believed at the time. Then, the Here for Hendersonville, the
       associated website, confirmed what I already believed to be true.



       4
           Elsten did not remember exactly what he said when he was deposed.


                                                 -7-
“Here for Hendersonville” was an anonymous blog Coker believed was authored by
Jamie Clary, a political rival of Elsten.

       Elsten argues that a rumor and an anonymous blog are unreliable sources of
information, and therefore, Coker had obvious reasons to question the truth of the insider
deal statement. While a reasonably prudent person may question such sources, the actual
malice standard does not require that Coker be a reasonably prudent person. See Lewis,
238 S.W.3d at 301. The question is not whether Coker should have entertained serious
doubts as to the story’s truth; rather, the question is whether he, in fact, did entertain
serious doubts. See Harte-Hanks Commc’ns, Inc., 491 U.S. at 688. It is undisputed the
story was not a figment of Coker’s imagination. It had been circulating in the community
for many years, so much so Coker considered it “common knowledge.” We recognize
that Coker cannot “automatically insure a favorable verdict” by testifying he believed the
rumor. See St. Amant, 390 U.S. at 732. But Elsten, in the face of Coker’s testimony, must
present clear and convincing evidence showing Coker did not believe it. See id. The
problem for Elsten is that the record does not disclose such evidence.

       Elsten relies on two emails Coker sent in 2012 and one he sent in 2016 wherein
Coker purportedly spoke favorably of Elsten to others. In one of the emails sent in 2012,
Coker said he supported Steve Brown for mayor of Hendersonville but “Tommy Elsten
would also make a good choice. He has been consistently right on the issues during his
time serving as BOMA and has a well thought-out vision for our future.” In the other
2012 email, Coker opined that Elsten “probably has the most rock-solid base of support
of any of the guys in the race.”

       We have determined that Elsten’s reliance on the 2012 emails is unavailing
because they are not probative of Coker’s state of mind in 2016 when he published and
disseminated the statement at issue. The most probative email is the one Coker sent in
August 2016, approximately three months prior to publishing the insider deal statement.
And unlike the other emails, it is scathing in its critique of Elsten. In it, Coker stated that
Elsten and his campaign organization violated campaign finance law by operating rent-
free out of a building owned by one of Elsten’s supporters, Gary Ealey, a construction
company owner. Coker wrote:

       Bottom line, both Tommy Elsten and his supporter are breaking the law.
       Worse, it’s not just the letter of the law they’re violating, it’s the very spirit
       of it, too. The whole reason campaign finance laws exist is to prevent
       influence-peddling. Well, not only does Gary Ealey own a construction
       company, but he owns several other commercial properties in
       Hendersonville as well . . . . Not only that, but his son is a developer and is
       right now trying to get rezoned property along Center Point Road adjacent
       to Mansker Farms to build 400+ more homes . . . . I’m not saying Tommy
       would do anything untoward to help his friend and campaign contributor,

                                             -8-
       but the fact they’re already conspiring together to break campaign finance
       laws is EXTREMELY troubling.

                                       .      .      .

       We simply can’t afford to let Tommy Elsten and his cronies anywhere near
       City Hall. This campaign finance stuff is just the tip of the iceberg when it
       comes to him not being who he says he is.

       Elsten contends Coker’s statement, “I’m not saying Tommy would do anything
untoward” shows Coker believed Elsten was incapable of unethical or criminal acts and
had reason to question the truth of the insider deal statement. However, when read in
context, a reasonable juror would not conclude Coker held Elsten in high esteem—quite
the opposite.

        Additionally, Elsten contends Coker’s failure to ask Elsten directly if the rumor
was true or to read the police report containing Elsten’s version of events, proves Coker
purposefully avoided the truth. He contends that Coker’s citing a verified source for
every statement about Elsten except the insider deal statement shows Coker knew the
insider deal statement was false. He compares this case to Harte-Hanks Communications,
Inc. v. Connaughton, wherein the Supreme Court determined that a newspaper defendant
acted with actual malice when it failed to interview a key witness before publishing a
defamatory statement about the plaintiff. 491 U.S. at 692. However, Elsten’s reliance on
Harte-Hanks is misplaced.

        In that case, a candidate for judicial office, Daniel Connaughton, brought a libel
action against a newspaper for publishing a defamatory story about him. Id. at 660. The
article quoted a grand jury witness, Alice Thompson, as stating that Connaughton
“offered her and her sister jobs and a trip to Florida ‘in appreciation’ for their help in an
investigation” involving Connaughton’s political rival. Id. At the trial on Connaughton’s
defamation claim, the testimony revealed that the editor of the newspaper instructed the
reporters to interview all of the witnesses to the conversation between Connaughton and
Thompson, most of whom were Connaughton’s supporters, with the exception of
Thompson’s sister—the only witness likely to verify Thompson’s version of events. Id. at
682. The U.S. Supreme Court found this deliberate omission very telling: “[W]hile
denials coming from Connaughton’s supporters might be explained as motivated by a
desire to assist Connaughton, a denial coming from [Thompson’s sister] would quickly
put an end to the story.” Id. The Court described the newspaper’s actions as going beyond
a negligent failure to conduct a full investigation. Id. at 692. Instead, it was “a deliberate
effort to avoid the truth.” Id. at 684–85.

       Elsten argues that by failing to consult Elsten directly about the rumor and by
failing to read the police report containing Elsten’s version of events, Coker, like the

                                            -9-
defendant in Harte-Hanks, deliberately avoided the truth. However, in Harte-Hanks, the
plaintiff presented strong circumstantial evidence showing the newspaper intentionally
avoided interviewing the one witness it knew would be truthful. See id. at 682. Here,
upon reading the 2016 email, a reasonable juror would not conclude that Coker thought
Elsten would be truthful. Consequently, Coker’s failure to consult the police report or to
ask Elsten directly about the rumor does not suggest Coker purposefully avoided the
truth.

       As the United States Supreme Court explained in Harte-Hanks,

       [The First Amendment] must be protected with special vigilance. When a
       candidate enters the political arena, he or she “must expect that the debate
       will sometimes be rough and personal,” and cannot “‘cry Foul!’ when an
       opponent or an industrious reporter attempts to demonstrate” that he or she
       lacks the “sterling integrity” trumpeted in campaign literature and
       speeches[.] Vigorous reportage of political campaigns is necessary for the
       optimal functioning of democratic institutions and central to our history of
       individual liberty.

491 U.S. at 687 (citations omitted) (footnote omitted).

        Because the record does not disclose clear and convincing evidence upon which a
trier of fact could find actual malice, we affirm the trial court’s decision to summarily
dismiss Elsten’s defamation claim as it relates to the insider deal statement.

                        II. THE ETHICS INVESTIGATION STATEMENT

       With regard to the ethics investigation statement, the pamphlet claimed Elsten was
“under investigation by the Tennessee Ethics Commission for campaign finance
violations relating to illegal contributions from a construction company owner.” Elsten
contended this statement was materially false; however, his deposition testimony
indicated otherwise:

       Q. Okay. So you were called in by the Tennessee Ethics Commission to
       answer their questions about this allegation that there were campaign
       finance violations, right?

       A. Yes.

       Q. And those alleged campaign finance violations related to alleged illegal
       contributions from a construction company owner, right?

       A. Yes.

                                           - 10 -
       Q. Was there any sort of hearing held?

       A. There was.

       Thus, the statement was not materially false. Further, if we were to determine that
the statement was materially false because the campaign contributions were not illegal,
only alleged to be illegal as Elsten maintains, Elsten failed to submit any evidence
showing Coker published the statement with knowledge of its falsity or with reckless
disregard to its truth.

        The foregoing notwithstanding, Elsten argues Coker “avoided the truth by failing
to make a reasonable investigation” to determine if Elsten’s actions were, in fact,
unlawful. However, as we previously stated, a defendant’s failure “to investigate
information . . . before publishing it, even when a reasonably prudent person would have
done so, is not sufficient by itself to establish [actual malice].” Lewis, 238 S.W.3d at 301
(citations omitted). Significantly, Elsten did not point to any facts in the record indicating
Coker entertained serious doubts as to the truth of his statement concerning the ethics
investigation.

        Because the record does not contain clear and convincing evidence upon which a
trier of fact could find actual malice, we affirm the trial court’s decision to summarily
dismiss Elsten’s defamation claim as it relates to the ethics investigation statement.

                                      IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Thomas J. Elsten.


                                                     ________________________________
                                                     FRANK G. CLEMENT JR., P.J., M.S.




                                            - 11 -
