Davis v. The Tennessean

• Decision Date: 21 August 2001
• Citation: 83 S.W.3d 125
• Parties: Ronald L. DAVIS v. THE TENNESSEAN, et al.
• Court: Tennessee Court of Appeals

Page 125

83 S.W.3d 125

Ronald L. DAVIS v. THE TENNESSEAN, et al.

Court of Appeals of Tennessee, at Nashville.

August 21, 2001.

Permission to Appeal Denied by Supreme Court October 29, 2001.

Ronald L. Davis, Only, TN, pro se.

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

OPINION

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

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.

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, 120 S.Ct. 505, 145 L.Ed.2d 390 (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 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 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 libelproof, 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 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), affg, 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...