                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     June 26, 2001 Session


                ANTHONY MURRAY v. DEWEY L. LINEBERRY

                       Appeal from the Circuit Court for Wilson County
                            No. 10686     Julian P. Guinn, Judge



                  No. M2001-00097-COA-R3-CV - Filed September 27, 2001


This appeal arises from a defamation action. The appellant sued the appellee for slander after the
appellee aired a series of political advertisements including statements about the appellant, a deputy
sheriff. The Wilson County Circuit Court granted the appellee’s motion for summary judgment. We
affirm the trial court’s decision.

                   Tenn. R. App. P. Rule 3; Judgment of the Circuit Court
                                 Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , and
PATRICIA J. COTTRELL , JJ., joined.

Neal Agee, Jr., Lebanon, Tennessee, for the appellant, Anthony Murray.

Parks T. Chastain and Elliott Ozment, Nashville, Tennessee, for the appellee, Dewey L. Lineberry.

                                             OPINION
                                                I.

       This is an appeal from the trial court’s order granting the appellee’s motion for summary
judgment in a defamation action. The appellee ran for the office of Sheriff of Wilson County for the
August 6, 1998 election. As part of his campaign, beginning on July 13, 1998, he aired six
videotaped political advertisements on cable television. The advertisements contained numerous
references to practices in the sheriff’s department and comments about the behavior of deputies,
sometimes by name. The plaintiff/appellant in this case is one of those deputies.

        At some point before airing the advertisements, appellee heard some Nashville Metropolitan
police officers discussing a deputy sheriff in Wilson County who had been involved in a domestic
dispute. Later, a young woman approached the appellee and told him she had been involved in a
domestic dispute with the appellant. Appellee also started receiving anonymous letters from “one
of the sheriffs [sic] many snitches” regarding practices in the sheriff’s department. Appellee decided
to use the information he had discovered in several advertisements during his campaign for sheriff.

        The relevant portions of the political advertisements identify the appellant as a deputy sheriff
whose father is a county commissioner.1 The first advertisement includes a veiled comment about
a deputy being involved in a violent domestic dispute and how, when the appellee is elected, that
kind of behavior will be rewarded with dismissal not promotion. Later advertisements included a
lengthy reading from a complaint filed in federal court by a female plaintiff against the appellant and
the sheriff alleging that the appellant had severely battered the plaintiff while they were living
together and that he and the sheriff conspired to cover it up. The complaint also alleged that the
sheriff had coerced the appellant into initiating a criminal complaint against the plaintiff in the
federal lawsuit, resulting in her arrest and rough treatment in state court. In another advertisement
the appellee asserted that the appellant had been involved in other bad acts but that his file had been
cleaned out because the sheriff needed the appellant’s father’s vote on the county commission.

        The trial judge granted the appellee’s motion for summary judgment.

                                                           II.

       Upon review of a grant of summary judgment, this court must determine whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997). As this inquiry involves purely a question of law, our review is de novo without a
presumption of correctness. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); McClung v.
Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Summary judgments are
appropriate only where there is no genuine issue of material fact 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. See Tenn. R. Civ. P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997);
Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Courts reviewing summary judgments must
view the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in the nonmoving party’s favor. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d 208,
210 (Tenn. 1993).

        The trial court’s order reads as follows:

                 Firstly, assuming, in arguendo, that the plaintiff is a private person rather than
        a public official, the Court finds as follows: As to what has been termed segments 1,
        2, 3, 4, and 5 they are substantially true. As to segments 4 and 6, the Court finds that
        they are not defamatory. As to all segments, the Court finds that there is just
        absolutely, completely no proof of damages.




       1
           We reprint the relevant portions of the advertisements in full as an appendix to this opinion.

                                                           -2-
              Secondly, the preceding findings were made based upon the assumption that
       he was a private person. This Court finds that the plaintiff is, in fact, a public official
       and the grounds for finding that is that the acts that have been alleged and to which
       he has admitted do, indeed, reflect on his conduct fitness or his role in his public
       capacity as a police officer. Having made that finding, this Court finds that there is
       no proof of malice to be found anywhere in this record.

                                                  III.
                         IS THE APPELLANT A PUBLIC OFFICIAL/FIGURE?

       In a case of libel or slander, the court must first decide whether the individual allegedly
defamed is a private person or public official/figure. If an individual is not a public figure, he has
a lower threshold to meet in making a defamation case. See New York Times, Co. v. Sullivan, 376
U.S. 254 (1964). If he is a public figure, he must prove actual malice on the part of the defendant.
Id. This court has stated:

       The existence of actual malice is a proper question to be decided by a court in a
       motion for summary judgment. Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69,
       74 (Tenn. [sic] App. 1986). To defeat the motion for summary judgment, a public
       official plaintiff must demonstrate evidence of actual malice with “convincing
       clarity.” Id. (citing New York Times, 376 U.S. at 285-86, 84 S.Ct. at 729, 11 L.Ed.
       2d at 710). Actual malice exists when a statement is made with knowledge that the
       statement is false, or with reckless disregard of whether it is false. Nichols, 569
       S.W.2d at 415 (quoting New York Times, 376 U.S. at 279, 84 S.Ct. at 726).

Selby v. Ilabaca, No. 02A01-9503-CV-00058, 1996 WL 219620 at * 4 (Tenn. Ct. App. 1996).

        In Selby, we held that a police officer was a public official. We stated that a police officer’s
“duties affect the lives, liberty and property of citizens . . . .” Selby, 1996 WL 219620, * 4. We
believe that the same is true of any law enforcement officer. Therefore, appellant is a public figure.

       The New York Times rule, however, raises the standard for recovery only when the alleged
defamatory statements relate to the public official’s official conduct. Press, Inc. v. Verran, 569
S.W.2d 435, 441 (Tenn. 1978). With respect to whether a plaintiff’s conduct is private rather than
connected with his official duties, our Supreme Court has stated:

       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.”




                                                  -3-
Id. at 441. We believe that appellant’s conduct amounting to domestic violence constitutes “conduct
that might adversely affect his fitness for public office.” Allegations of covering up official
misconduct would certainly fall into that category.

                                                   IV.
                                              A.   MALICE

        On the question of malice, we first note that the appellant was not the object of the political
advertisements. The appellee’s target was the sheriff, and the story told was mostly about the
sheriff’s conduct in office. In addition, the appellee presented evidence that he believed the
information to be true. In his affidavit, appellee stated that he spoke with the third party, she showed
him her medical records, she showed him pictures of her injuries, she showed him a bloody towel
that was from the injury, and she showed him the Internal Investigation Statement from the Wilson
County Sheriff’s Department. The appellant himself admitted he hit the third party over the head
with a telephone. Based on his investigation and the corroboration the appellee found, and based
on the lack of evidence to the contrary, we find that there is nothing in the record from which an
inference could be drawn that the appellee acted maliciously toward the appellant.

                                             B.    DAMAGES

        In addition, we find that the appellant has failed to show that he was damaged by the
publication of the advertisements. In a defamation case, a plaintiff must prove actual damages
resulting from actual injury. Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50 (1974); Memphis
Publishing Co v. Nichols, 569 S.W.2d 412, 421 (Tenn. 1978). The United States Supreme Court
addressed the issue of actual damages in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The
Court stated:

        We need not define “actual injury,” as trial courts have wide experience in framing
        appropriate jury instructions in tort actions. Suffice it to say that actual injury is not
        limited to out-of-pocket loss. Indeed, the more customary types of actual harm
        inflicted by defamatory falsehood include impairment of reputation and standing in
        the community, personal humiliation, and mental anguish and suffering.

Gertz, 418 U.S. at 349-50. When looking at damages for a defamation suit this court has stated that,
“[t]he issue is whether the record contains any material evidence of impairment of reputation and
standing in the community, personal humiliation, or mental anguish and suffering.” Myers v.
Pickering Firm, Inc., 959 S.W.2d 152, 164 (Tenn. Ct. App. 1997) (citing Handley v. May, 588
S.W.2d 772, 776 (Tenn. Ct. App. 1979)). When discussing a plaintiff’s reaction as anger rather than
anguish, this court has also stated that “mere annoyance or loss of peace of mind,” are not enough
to qualify for actual damages. Handley, 588 S.W.2d at 777.

      In Moore v. Bailey, 628 S.W.2d 431 (Tenn. Ct. App. 1981), we affirmed a jury award in a
defamation case. Where the plaintiff presented evidence of the effects of the defamatory statements,


                                                    -4-
which had been on-going for ten (10) years. The plaintiff in that case stated that he was unable to
get away from the statements made by the defendant. The plaintiff was even approached by one of
the defendant’s employees at Army Guard camp, which caused him to quit the Army Guard. He
stated that it was in his mind and disturbed his mind as well as his family. The plaintiff also testified
that the statements affected the performance of his duties because it was always on his mind.

        In his deposition, the appellant stated that various individuals had approached him concerning
the commercials. He stated that this attention embarrassed him. He also stated that individuals from
church told the parents of his fiancee at the time that they should keep appellant away from her. He
mentioned that he was embarrassed for his parents, his wife, and his in-laws. However, the damages
complained of by the appellant never rose above embarrassment stemming from individual
encounters. He also stated that he believed he had not been invited to a few private parties due to
the advertisements. However, he did not present proof that the advertisements were the reason he
was not invited. Appellant did mention that detectives at the Sheriff’s office would not work with
him and that his own partner had left the department due in part to the allegations on the
advertisements. However, appellant’s position as a deputy had not been affected.

       This situation is not the same as in Moore. In Moore, the plaintiff testified that the
defamatory statements were constantly with him in his day-to-day life. Here the appellant stated that
various people asked him about the allegations, but he did not state that the questions were a constant
presence in his life. Also, there was no evidence that the embarrassment hampered his ability to
perform his job. This evidence does not rise above “anger, mere annoyance or loss of peace of
mind.” Therefore, we find no proof of actual damages.

        We have reviewed the record in this case and find no basis to overturn the trial court’s
decision to grant the motion for summary judgment. For this reason, we affirm the decision of the
trial court and remand the cause to the Circuit Court of Wilson County for any further proceedings
that may become necessary. Tax the costs on appeal to the appellant, Anthony Murray.



                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.




                                                  -5-
                                             APPENDIX

Segment 1

I’d like to also add that any deputy, while I’m sheriff, any deputy guilty of domestic violence, your
gonna be dismissed. You’re not going to be promoted. By that I’m not going to name any names
right now, but go ask the sheriff, any of you that know him what’s he do to people guilty of domestic
violence. Ask him has he promoted any when they should’ve been dismissed. You know if you’re
guilty of domestic violence you can’t carry a handgun, you can’t be an officer, your [sic] through.
They need to think about that before they, before they commit the acts. Anyway, you can’t, that’s
not right. I’m not up here trying to prejudge people, but I’m sure not going to try and fix it and cover
it up. When I’m sheriff, if you guilty of that, pack your stuff, clean your locker out, your done.

Segment 2

You know Mr. Sheriff, I said if you catch me in a restaurant drinking a beer, it’ll be a beer it won’t
be a Coors Lite in an apple juice glass. I don’t deceive or cover up anything. If I’m drinking tea, you
can bet it’s tea, it’s that simple. I don’t put one thing in and try to make the people think something
else. Well, that infuriated the sheriff, so, that he goes to this restaurant. I’m not calling the
restaurant’s name or the person’s name that said it. He goes over there and he jumps on that person.
That person called me back and said hey. That person was scared. That person said help me, help
me I need a lawyer and, you know, nobody would help her. So I turned back around, and I really was
having trouble getting somebody to help her too. So I put another ad in the paper, and it said several
things about how does one man keep so many good men scared out of the sheriff’s race. There are
deputies serving under the sheriff now that do the job better.

Under Lawdog, hard work will be rewarded not discouraged. I want you to better [y]ourself. Wife
beating will no longer be a qualification for your promotion. Well, guess what folks, I put that ad
in the Democrat on Tuesday. It hadn’t run til Friday. Maybe the Sheriff was psychic I don’t know.
Wednesday he goes back to this person said, I told you to stop talking to Lineberry. Scared that
person. They call me hysterical, scared to death, didn’t know what was going to happen. I took that
person and got’em a lawyer. That’s my hand in it. That’s all I’ve done. Now it’s come out and any
of you that wants a copy of it can get it, you see, how they took this person that was getting beat, this
little girl that didn’t weigh 95 pounds soaking wet, she was getting beat, they put ankle chains on her,
took her in front of a judge and had her say that she had been whipping the deputy. And then I dig
into it even further and this deputy has got a father that’s a commissioner. That’s what I’m talking
about. That’s the stuff that’s going on. It’s filed now, it’s public. That was my hand in it. That’s
it.

Segment 3

Mr. Sheriff, you say you’re a good manager. I’m going to challenge you to prove that you’re not the
most expensive sheriff that’s ever been in the state of Tennessee. I got a lawsuit right here in my


                                                  -6-
hand filed in Federal Court. I’m not going to call the young lady’s name that filed it, but it’s filed
against you and it was filed last week. It’s for a couple million dollars. I don’t know much about
all of this except, I wasn’t there, but I’ve read this lawsuit and any of you wants a copy of it can go
down to federal court or you can call down there and get you a copy of it. That’s what I did, and you
know, I will read you a few things about it. It was about you covering up a crime. It came to do with
you deciding one night that that you would just cover it up. Now there ain’t no telling how many
times you’ve done it, you know. There’s no telling how many times you’ve actually covered
something up. You know, because it’s come pretty easy to you, you know. Man calls you in the
middle of the night, and just like that, you covered it up. Here we go. On or about June 30, 1997,
Defendant Anthony Murray, was residing with Plaintiff in Wilson County. On or about that day
Defendant Murray severely beat the Plaintiff causing her severe head injuries as to acquire [sic]
hospitalization. That was out of Paragraph 6. Paragraph 7. On or about May 3, 1998, Defendant
Murray again severely beat the plaintiff. When she returned to the dwelling, they co-habitated. I’m
going to leave out Paragraph 8. It’s not much to it. Number 9. Defendant Ashe in his capacity to
sheriff of Wilson County was aware of the abusive, violent behavior exhibited by Defendant Murray
toward plaintiff. Defendant Ashe under color of state law. In case any of you out there don’t realize
what color of law is, there’s only 10 lawyers in Nashville, Tennessee, that understand the color of
law. The color of law is 2800 pages long. There’s maybe 2 or 3 in Lebanon that understand it. I
could call their names but they don’t want to be named it doesn’t matter. Anyway it’s a big deal, it
doesn’t, they’re not talking about the color of your skin, it is your civil rights the law can’t see any
color is what they’re trying to say but it takes them 2800 pages. It’s a big deal. Defendant Ashe
under the color of law and pursuant to his duties as the duly elected Sheriff to Wilson County failed
to take any action to protect plaintiff or take any legal action to punish Defendant Murray or prevent
future incidents of violence. Paragraph 10. Defendant Ashe in his capacity [as] Sheriff of Wilson
County and under the color of state law engaged in a conspiracy with Defendant Murray and other
members of the Wilson County Sheriff’s Department to cover up and keep secret incidents of
violence against plaintiff by defendant Murray. Paragraph 11. Defendant Ashe in his capacity as
the Sheriff of Wilson County, Tennessee and under the color of State Law insisted on prosecuting
Plaintiff for criminal trespass when he was fully aware no such offense had occurred and in that fact
at the time of the May 3, 1998 assault plaintiff co-habitated with defendant Murray at the site of the
assault. Defendant Ashe threatened on multiple occasions to terminate defendant Murray’s
employment with Wilson County’s Sheriff Department if he failed to go forward swearing out a
warrant and prosecuting plaintiff. Number 12. In an attempt to silence the plaintiff and prevent her
from taking legal action to readdress the violation of her civil rights, Defendant Ashe and Murray
and other members of the Wilson County Sheriff’s Department, reckon who they are, have engaged
in a course of conduct aimed at intimidating the plaintiff. This course of conduct includes
conducting surveillance operations on the plaintiff when no probable cause exists to suspect that she
was involved in criminal activities. Threatening the plaintiff and disseminating false and malicious
information about the plaintiff. Some or all of these activities have been conducted under the color
of State Law. Number 13. As direct and proximate result of the beatings doled out to the defendant
by plaintiff Murray, [sic] suffered medical expenses and injuries possible permanent impairment,
pain, suffering, loss of wages, possible loss of earning capacity. Number 15. I skipped 14.
Plaintiff’s rights as codified under the 1st, 4th, 5th, 6th, 8th, 9th, & 14th Amendments to the Constitution


                                                    -7-
of the United States have been and continue to be abrogated by the course of conduct in which
Defendants Ashe and Murray are engaged. Number 16. The acts of Defendant Murray are
repeatedly and violently striking, beating, kicking, and otherwise engaging in abusive and offensive
contact constitutes the intentional tort of battery. The acts of Defendant Murray in repeatedly
causing the fear imminent and serious bodily harm, Defendant Murray and subjects Plaintiff came
[sic] constitutes the intentional tort of assault. It’s time we had a sheriff that took up for someone
it don’t matter who your daddy was or who anybody is related to that will defend you no matter who
you are, no matter what you are or what you done, we’ll do it right you don’t have to sit around and
make up a bunch of other, “What happened” . . . . . . . .We need a sheriff that will help you, instead
of help you cover it. You’re not helping nobody when you cover up a crime. Your [sic] making it,
the law, you’re tying the laws hands, it’s not right. Now back to the script. It’s not a script it’s a
lawsuit you can pick it up at the Federal Court House. Mr. Sheriff this is filed in Federal Court
everybody knows it’s filed in Federal Court. It’s not in Lebanon, a little different you broke a federal
law. The failure of defendant Ashe who knew and condoned the physical, emotional abuse suffered
by plaintiff at the hands of defendant Murray, to punish in any way intervene Plaintiff’s rights as he
has taken oath to do by law constitutes a tort of outrageous conduct and/or intentional infliction of
emotional distress. Defendant Ashe’s course of conduct in forcing the prosecution of Plaintiff when
he knew no crime had transpired, and further actions in harassing and surveilling Plaintiff constitutes
the tort of outrageous conduct. There’s a lot more here to read. I’m not going to take your time with
it. A lot of people don’t understand the difference in an intentional tort and . . . . .

You said you wanted if anything happened to you on the radio station that you wanted officers from
your department to help you. Well the person that wrote this thinks maybe it was just to get you so
you’d cover up any wrong doing on your part you know like you did for this Murray thing I read
before but I’ll tell you something else and I’m going to leave this boy’s name out of it.

Segment 4

That was another one where he covered up a crime, attempted to cover it up, and that’s the way this
lawsuit reads. I’m not the judge and jury on that, but it was just where they, um . . a girl was being
beat and they put ankle chains on her and had her say that she had been beating the deputy and come
to find out when I dug all into it, the deputy, the reason they took this approach, the deputy had a
father that’s a commissioner. Well that’s what I’ve been talking about the whole time. That whole
thing’s tied together in a big ball of wax. You know, I started to just jerk the sheriff out and now,
I’ve ended had to get them all. You see, but I’m only going to get the ones that are trying to be
connected. Most of them can be converted. You see, when I get there and see what I’m about they’ll
stay with me. And they’ll, they’ll at least respect me enough to do their job and earn their pay.

Segment 5

You couldn’t get your hand on that money. That’s the deal. Then you got deputy’s [sic] running the
bond companies, good grief I don’t understand it and one more thing you asked me about the lawsuit,
the federal lawsuit on the 2.1 million dollars. The federal lawsuit you asked me about that, you


                                                  -8-
know people are missing the point on that, a little girl got beat up that’s bad, that’s terrible. That’s
not the real point. The man beat the girl up that’s a postage stamp laying on a football field when
it’s all over with that’s all that is but the big crime the thing they ran a bull elephant down Main
Street and nobody saw it was that the Sheriff cover it up. If the Sheriff’s convicted of that he can’t
be Sheriff no more. What are we up here talking about that’s what I’m trying to tell you. That’s the
blimp that went down and nobody saw it or they don’t want to talk about it.

Segment 6

Bubba Murray lawsuit- This is the second lawsuit Bubby, this fella calls him Bubby, Bubby Murray,
has gotten the county in to [sic] for the past couple of years. The first lawsuit was the Thaker suit.
The county insurance had to pay this. Bubba went around bragging that his file had been cleaned
up. Well, all the past write ups by Lt. Fox, evidently Lt. Fox had been writing him up and they
pulled all that out of his file, you see, to keep the people that sued from getting a hold of that file you
see because if they had of they could use it as evidence in court. If you wonder why Bubby is so
important that Ashe would risk so much covering up for him I guess it’s because he’s the
commissioner’s son and Ashe needs all the help he can get when he proposes another budget
increase. Now I got taped meetings a lot of tapes. But I got one right here that’s a lot more
interesting than others . . . . . . .




                                                   -9-
