Davis v. the Tennessean

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 7, 2000

RONALD L. DAVIS v. THE TENNESSEAN, ET AL.

Appeal from the Circuit Court for Davidson County
No. 99-C1888 Barbara N. Haynes, Judge

No. M1999-01602-COA-R3-CV - Filed August 21, 2001

The plaintiff filed a libel action against a newspaper, The Tennessean, its publisher and its editor,
alleging his reputation had been harmed by a sentence in an article which stated that he had shot a
man, when, in fact, his co-defendant had killed the victim. The trial court granted the defendants’
motion to dismiss, finding the plaintiff to be “libel proof” in this matter because he had been
convicted of aiding and abetting in the murder and incarcerated for the remainder of his life for the
crime, “render[ing] any reputation he may have had virtually valueless.” We affirm.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J. M.S.,
and WILLIAM C. KOCH , JR., J. joined.

Ronald L. Davis, Only, Tennessee, Pro se.

Alfred H. Knight, Nashville, Tennessee, for the appellees, The Tennessean, et al.

OPINION

The plaintiff, Ronald L. Davis, is an inmate of the Tennessee Department of Correction. He
was convicted of aiding and abetting murder in the second degree, and sentenced to ninety-nine years
in prison. His co-defendant, Tommy L. King, was convicted of felony murder and sentenced to
death.

In June 1999, The Tennessean, a newspaper, published an article copyrighted by the
Associated Press reporting the Tennessee Supreme Court’s decision upholding the death sentence
of Tommy King. See King v. State, 992 S.W.2d 946, 947 (Tenn. 1999), cert denied, 528 U.S. 1007
(1999). The Court’s opinion stated, in pertinent part:
 The defendant, Tommy Lee King, and his co-defendant, Ronald Davis, entered a
tavern in May of 1982. The defendant fired a shot into the air and ordered the
tavern’s patrons and owner to lie down on the floor. The defendant robbed the
patrons, rifled through the tavern’s cash register and took the owner’s car keys.
Apparently, the defendant then without provocation shot the tavern owner, who was
lying on the floor. . . . The tavern owner died approximately one week later as a result
of the gunshot wound.

Id.

The Associated Press article in The Tennessean reported the decision of the Supreme Court
upholding Mr. King’s death sentence, including the following statements:

The state Supreme Court Monday upheld the death penalty for a man who killed a
Maury County tavern owner in 1982 . . . [Two justices], in a separate opinion, said
Tommy Lee King was guilty of first degree murder but should not be sentenced to
death. . . . King was convicted in the robbery of tavern patrons and the shooting death
of its owner.
...

King and co-defendant Ronald Davis entered a tavern, ordered patrons to lie on the
floor and robbed them. Before leaving, Davis shot the owner as he lay on the floor.

The last sentence, factually attributing the shooting to Mr. Davis, was inaccurate and forms
the basis of Mr. Davis’s “Complaint for Libel and Slander.” He alleged the defendants published
this false statement with reckless disregard for the truth and with malice.

The defendants filed a motion to dismiss for failure to state a claim upon which relief can be
granted, relying on the wire service defense for libel defendants which has been applied by courts
of other states for a number of years. They asserted the article “was an Associated Press story which
was republished by the defendants without substantial change, and without knowing or having reason
to know that it contained a significant inaccuracy.”1 The defendants also asserted that, because the
plaintiff was convicted of aiding and abetting the murder and had been sentenced to 99 years in
prison, he was “‘libel-proof,’ having no reputation that is capable of being injured or substantially
compensated for.”

The trial court considered the written submissions of the parties and granted the defendants’
motion to dismiss, stating in its order:

The plaintiff is currently serving a 99 year sentence in the Tennessee State

1
Because of our disposition of this appeal on other grounds, we need no t address the “w ire service defense,”
i.e., whether reliance on a wire service negates the element of negligence.

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 Penitentiary as a result of aiding and abetting in the murder which is referred to in his
complaint. The Court is of the opinion that this conviction of an infamous offense
resulting in his incarceration for what may be the remainder of his life renders any
reputation he may have virtually valueless and that he is in the eyes of the law “libel
proof.” Since he has no substantial reputation that could have been injured by the
matter stated in the article of which he complains, his libel claim should be
dismissed.

The plaintiff appeals, contending the trial court erred by dismissing his complaint.2

I.

A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a claim upon
which relief can be granted tests only the legal sufficiency of the complaint, not the
strength of a plaintiff's proof. Such a motion admits the truth of all relevant and
material averments contained in the complaint, but asserts that such facts do not
constitute a cause of action. In considering a motion to dismiss, courts should
construe the complaint liberally in favor of the plaintiff, taking all allegations of fact
as true, and deny the motion unless it appears that the plaintiff can prove no set of
facts in support of [his] claim that would entitle [him] to relief. Cook v. Spinnaker's
of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering this appeal
from the trial court's grant of the defendant's motion to dismiss, we take all
allegations of fact in the plaintiff's complaint as true, and review the lower courts'
legal conclusions de novo with no presumption of correctness.

King v. Danek Med., Inc., 37 S.W.3d 429, 453-54 (Tenn. Ct. App. 2000) (quoting Stein v. Davidson
Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).

II.

The plaintiff claims that the defendants libeled him. Libel and slander are both forms of
defamation; libel being written defamation and slander being spoken defamation. Quality Auto Parts
Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994). To establish a prima facie
case of defamation, the plaintiff must prove that (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

2
The plaintiff also claims the trial court erred by failing to follow its own local rules of practice. He contends
that the trial court did not order the defendants to provide copies of “four (4) other state decisions and one Tennessee
unpublished decision” which he claims they cited in support of their motion to dismiss, but did not provide to him . We
decline to address this issue for two reasons. First, we find no indication that the issue was raise d in the trial court, and
issues may not be raised for the first time on appeal. In re V alle, 31 S .W .3d 5 66, 5 71 (Tenn. Ct. App. 2000). Second,
even if the issue had been raised with the trial court, the record does not co ntain the supposed ly obje ctionable document,
and the “appellant has the primary burden to see that a proper record is prepared o n app eal and filed in this co urt.”
McDonald v. Onoh, 772 S.W .2d 913, 914 (Tenn. Ct. App. 1989 ).

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the truth of the statement or with negligence in failing to ascertain the truth of the statement.
Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (relying on RESTATEMENT
(SECOND) OF TORTS § 580 B (1977)).

However, “the basis for an action for defamation, whether it be slander or libel, is that the
defamation has resulted in an injury to the person's character and reputation.” Quality Auto Parts,
876 S.W.2d at 820. To be actionable, the allegedly defamatory statement must “constitute a serious
threat to the plaintiff’s reputation.” Stones River Motors, Inc. v. Mid-South Publ’g Co., 651 S.W.2d
713, 719 (Tenn. Ct. App. 1983). Damages from false or inaccurate statements cannot be presumed;
actual damage must be sustained and proved. Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 416,
419 (Tenn. 1978).

It is from these general principles establishing that the gravamen of a libel claim is injury to
reputation that the concept of ‘libel proof’ parties has arisen. This doctrine essentially holds that “a
notorious person is without a ‘good name’ and therefore may not recover for injury to it.” ROBERT
D. SACK , SACK ON DEFAMATION : LIBEL, SLANDER AND RELATED PROBLEMS 35 (Cum. Supp. 1998).

If the purpose of defamation law is to guard against harm to reputation, a person
without reputation has nothing for the law of defamation to protect. Whether for this
reason, or because courts wish to rid their dockets of and spare defendants from
nuisance suits by people with nothing legitimate to gain from such litigation, some
courts have held that there are persons so notorious that they have no reputation on
which to base a defamation claim. Their suits are necessarily frivolous. They are
said to be “libel-proof.”

Id. at 36.

A number of jurisdictions have adopted the “libel-proof” doctrine, and it has often been
applied in a situation where the plaintiff’s complaint is that the publication accused him of the wrong
crimes. For example, in Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2d Cir. 1975), plaintiff
sued a book author and publisher who accused him of various criminal activities, denying
participation in some of them. The court concluded he was guilty of other crimes attributed to him
in the book and dismissed the action because he was libel-proof, explaining that term as “so unlikely
by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages
as to warrant dismissal of the case. . . . ” Id. at 639.

A federal court in this state has applied the doctrine in Ray v. Time, Inc., 452 F. Supp. 618
(W.D. Tenn. 1976), aff’d, 582 F.2d 1280 (6th Cir. 1980), regarding a claim by James Earl Ray that
a publication had libeled him as a “narcotics addict and peddler” and another defamed him by
referring to him as a robber. Id. at 622. In examining this claim, the court stated:

The Court is persuaded, in the light of all the circumstances in this cause and in the
public record involved in the other cases mentioned, that plaintiff, James E. Ray, is

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 libel-proof, as that term was used in Cardillo v. Doubleday & Co., Inc., 518 F.2d
638, 639 (2d Cir. 1975). Ray, as Cardillo, is a convicted habitual criminal and is so
unlikely to be able to recover damages to his reputation as to warrant dismissal of his
libel claim in the light of First Amendment considerations attendant to publication
of material dealing with his background and his criminal activities. See also Urbano
v. Sondern, 370 F.2d 13 (2d Cir. 1966), cert. den., 386 U.S. 1034, 87 S. Ct. 1485, 18
L.Ed.2d 596 (1967), aff’g, 41 F.R.D. 355 (D. Conn. 1966) and Urbano v. Fawcett
Publications, 370 F.2d 14 (2d Cir. 1966).

Id.

At least one other trial court in this state has applied the libel-proof doctrine to dismiss a libel
action. Rogers v. Jackson Sun Newspaper, No. C-94-301, 1995 WL 383000 (Tenn. Cir. Ct. Jan. 30,
1995). In that case, the Jackson Sun had reported the criminal record of a defendant who had had
charges of aggravated assault against him dismissed at trial. He sued the Sun for libel, claiming that,
although he had a criminal record, it was less severe than the record published by the newspaper.
The article stated that the plaintiff had convictions of “two aggravated robberies, one robbery, one
assault to commit aggravated robbery, six weapons violations and a burglary conviction.” The
plaintiff contended that his actual record consisted of “convictions for third degree burglary, two
robberies armed with a deadly weapon, one simple robbery and one assault with intent to rob.”

The court dismissed the complaint, relying upon the “libel-proof” defense adopted in Ray v.
Time, Inc., and cases from other jurisdictions. The court held “as a matter of law, Plaintiff’s
reputation in the community at the time of the article’s publication was so severely tarnished, he is
‘libel-proof’ and may not maintain this defamation action for an allegedly erroneous report of his
criminal record.” Id. at *1.

This court applied the “libel-proof” defense in Coker v. Sundquist, No. 01A01-9806-BC-
00318, 1998 WL 736655, at *3 (Tenn. Ct. App. Oct. 23, 1998) (perm. app. denied May, 10, 1999),
finding that, as a matter of law, the plaintiff “would suffer no damages to his reputation by the words
alleged to have been spoken.” In that opinion, this court examined the concept of injury to
reputation, stating

Character is: The predisposition or habit, or aggregate of ethical qualities which
belong to and distinguish an individual person; the general result of the one’s
distinguishing attributes. That moral predisposition or habit or aggregate of ethical
qualities, which is believed attached to a person on the strength of the common
opinion and report concerning him. Although “character” is often used in the sense
of “reputation”, the terms are distinguishable. “Character” is what a man is, and
reputation is what he is supposed to be. “Character” depends on attributes possessed,
and reputation on attributes which others believe one to possess. BLACK’S LAW
DICTIONARY , FOURTH EDITION , p. 294.

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 The words, character and reputation have been used interchangeably because where
character is relevant, it is proved by a “character witness” whose testimony must be
confined to reputation. Thus, “character” must be proven by reputation and not by
acts.

In Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., et al., the appeal was
from the dismissal of the suit of an employee of Bluff City against his employer for
slander by accusing him of falsifying records. The Supreme Court dismissed the
slander action as time-barred and said:

The basis of an action for defamation, whether it be for slander or
libel, is the defamation resulted in an injury to the person’s character
and reputation.

Clearly, the words “character and reputation” were intended to mean “reputation in
respect to character, for character may be shown only by reputation.”

In Little Stores v. Isenberg, the plaintiff obtained a jury verdict for damages from a
false allegation of shoplifting. This Court affirmed and said:

The “character” of an accused means his fixed disposition or
tendency, as shown by his habits, through the manifestation of which
his general reputation, good or otherwise, is obtained. Keith v. State,
127 Tenn. 40, 152 S.W. 1029 (1913).

The claim shows on its face that the claimant is a convicted murderer worthy of
death. Therefore, neither his reputation nor his character could be impaired by the
language allegedly spoken and published.

Id. at *4.

As the Coker v. Sundquist opinion makes clear, it is injury to one’s reputation for good
character with the public which is necessary for an actionable claim of defamation. A libel does not
occur unless the words are “reasonably construable as holding the plaintiff up to public hatred,
contempt, or ridicule.” Stones River Motors, Inc., 651 S.W.2d at 719. To constitute actionable
defamation there must be impairment of reputation and/or standing in the community. Handley v.
May, 588 S.W.2d 772, 776 (Tenn. Ct. App. 1979). To suffer injury to one’s standing in the
community, or damage to one’s public reputation, one must possess good standing and reputation
for good character to begin with.

In Ali v. Moore, 984 S.W.2d 224 (Tenn. Ct. App. 1998), this court considered, among other
issues, whether a broadcast’s depiction of plaintiff’s attempts to bribe two persons was actionable
as libelous when the plaintiff was later acquitted of one count of attempted bribery. Although we

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did not use the term “libel-proof,” we analyzed the injury to reputation on similar principles. This
court held:

Whether Ali, in fact, only attempted to bribe one of these persons is immaterial in
light of these circumstances. Since Ali was convicted of one count of attempted
bribery, his reputation was already tarnished. We do not believe that Ali’s reputation
suffered further disgrace for being accused of twice committing attempted bribery in
light of the fact that he was convicted of rape and one act of attempted bribery.

Ali, 984 S.W.2d at 230.

Thus, Tennessee courts have held that a plaintiff in a libel action must be able to show that
his or her standing in the community and his public reputation for character has been injured by the
inaccurate statement and, further, must have suffered real or actual damages due to that loss of
standing or reputation. Mr. Davis has claimed his “life has been put into danger by other inmates,
his reputation as a paralegal injured, [and he has] suffered humiliation, severe emotional distress and
mental anguish, family bonding, marriage proceedings, interference with criminal appeal, ridicule,
etc.” He sought, among other relief, $700,000 in compensatory and punitive damages.

Although Mr. Davis alleges he suffered unjustified humiliation because of the publication,
he does not allege his public reputation has been injured. We conclude he cannot show such injury
because, at the time of the publication, he was serving a ninety-nine year sentence for aiding and
abetting the murder which is the subject of the article and his complaint. He participated in the
crime which resulted in the murder. His character reputation with the public was established and
could not be harmed by inaccurate attribution to him of conduct which was part of the crime in
which he participated. His continued incarceration for a long time after the publication renders
actual damage, with regard to his standing in the community, as a result of the article unlikely. See
Coker, 1998 WL 736655, at *3-4 (inmate had “reputation . . . of a murderer” which could not be
harmed by inaccurate exaggeration).

Thus, we agree with the trial court that Mr. Davis’s conviction resulting in incarceration for
99 years “renders any reputation he may have virtually valueless and that he is in the eyes of the law
‘libel-proof.’”

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 III.

We affirm the trial court’s dismissal of the plaintiff’s complaint, and remand the case for
such further proceedings as may be necessary. Costs are taxed to the appellant, Ronald L. Davis, for
which execution may issue if necessary.

___________________________________
PATRICIA J. COTTRELL, JUDGE

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