Hibdon v. Grabowski

• Decision Date: 27 September 2005
• Citation: 195 S.W.3d 48
• Parties: Kerry HIBDON v. George J. GRABOWSKI, et al.
• Court: Tennessee Court of Appeals

195 S.W.3d 48

Kerry HIBDON v. George J. GRABOWSKI, et al.

Court of Appeals of Tennessee, Western Section, at Nashville.

July 12, 2005 Session.

September 27, 2005.

Permission to Appeal Denied by Supreme Court March 27, 2006.

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August C. Winter of Brentwood, Tennessee for Appellant, Kerry Hibdon.

Henry D. Fincher of Cookeville, Tennessee for Appellees, George J. Grabowski, Ind. & d/b/a HPT Sport USA, Fagan Pace, Ind. 7 d/b/a Pace Tech, Ben Pennington, Ronnie Reels and Larry Talley.

OPINION

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER, J. and HOLLY M. KIRBY, J., joined.

Plaintiff/Appellant owner of jet ski customizing business brought defamation action against defendants alleging libel, civil conspiracy and false light invasion of privacy stemming from statements defendants made about plaintiff, which were published on an Internet news group. The trial court held that venue was proper in Warren County, Tennessee, and that the court had jurisdiction over out-of-state resident defendants. Finding that plaintiff was a public figure for purposes of libel action, that plaintiff could not prove actual malice, and that plaintiff failed to show actual damage, the trial court granted summary judgment in favor of the defendants. Plaintiff appeals. We affirm in part, reverse in part, and remand.

Kerry Hibdon ("Hibdon," "Plaintiff," or "Appellant") operates a television repair business in McMinville, Tennessee. An interest in riding jet skis, and in modifying jet skis to increase their speed, led Hibdon to start a jet ski customizing business called The Jet Shop. This business was also located in McMinville. Hibdon advertised his jet ski business on the Internet. He also published descriptions of the speeds his customized jet skis were achieving on the Internet news group rec.sport.jetski.¹ In July of 2000, SPLASH Magazine, a periodical for jet ski enthusiasts, published an article reporting that two of Hibdon's jet skis had been tested and that the results substantiated Hibdon's claims that his modified jet skis were capable of reaching speeds of over seventy miles per hour. The SPLASH article authored by Jeff Ames reads:

Kerry and April Hibdon have what appears to be matching Kawasaki Ultra 150 watercraft. We found Hibdon boasting about his Ultra 150 reaching a top speed of 74.2 mph in the rec.sport.jetski Internet news group. To make it a little more enticing Hibdon also claimed that his wife April's Ultra radared in at 71.5 mph. He also went on to make the claim that both of these watercraft run on pump gasoline. After hearing these claims it was easy to choose the Hibdons as SPLASH Magazine's first victims of the "Net Patrol". We set a date for testing and prepared to put the Ultras to the test.

Unfortunately Mother Nature didn't cooperate with us as easily as the Hibdons. A storm system moved through the area which dropped the temperature almost fifty degrees in a 24-hour period. Instead of 70 to 75 degrees it was now 20 degrees. Since deadlines do not pay attention to weather reports, we could only postpone our testing until the following day. This day turned out a little warmer (low 40's) and not quite as windy as the previous day. Unfortunately, we still had winds in the vicinity of about 8-10 mph, making the water a little choppy. Not an ideal scenario for top speed and acceleration testing, but like a trooper Hibdon went on with the test. For top speed passes at the radar gun Kerry's Ultra 150 topped out at 72.3 mph a little less than the 74.2 mph that he had claimed on the news group. April's Ultra 150 had a top speed of 71.0 mph[,] .5 short to the claim in the news group.

There is no question in our minds that the speeds that were listed in the news group are factual numbers on these watercraft. The conditions we were faced to test in were not ideal and [conducive] to a good top end speed. The overall acceleration of both craft was very impressive even in the choppy water. Kerry's Ultra accelerated 0-60 in 4.61 seconds, April[']s 5.24 seconds. Both Ultras have stock milled heads, prototype V-Force Delta II reeds, porting, resistor for timing set, re-pitched impeller and Worx Sponsons. The Pumps on both Ultras have been removed and had all the rough edges smoothed as well as had the intake grate and pump shoe sealed. Kerry also reworked the front splash guard on each to keep the nose of the watercraft from diving in rough chop. About the only difference between the two Ultras is that Kerry's has a set of Buck Shot Carbs and a more aggressive port job. The combination between the two is what gives Kerry's Ultra the acceleration edge and top speed power.

The Jet Shop is Kerry's watercraft business. He is in the process of developing a Big Bore kit, Triple Pipes and impellers for the Kawasaki Ultra. The Hibdons, including son Michael, enjoy their Ultra 150 watercraft for fun and a little friendly side by side racing with the rest of their watercraft friends. It was a pleasure for the Net Patrol to somewhat validate the claims Kerry had made in the news group. For more information on how you can have your watercraft appear on these fine pages, make a posting on the news group about what you've got. If we[']re interested, we'll be contacting you.

A "Source Box" appeared below the article providing the name of Hibdon's business, along with mailing address, phone number and e-mail address.

In March of 2001, SPLASH Magazine published another article reporting that Hibdon had modified a jet ski that successfully reached the speed of eighty miles per hour. This article was highlighted on the magazine's cover with a photo of Hibdon. Hibdon was mentioned two additional times in SPLASH editorials. Following the publication of the articles in SPLASH, the Defendants (also jet ski enthusiasts) published numerous remarks on rec.sport.jetski. Many of these remarks were critical of Hibdon's jet ski modifications and questioned the authenticity of the speed Hibdon's modified jet skis had achieved. The Defendants also criticized Hibdon's skills as a jet ski mechanic, and made negative personal comments about Hibdon. Additionally, Defendant Grabowski, who operates a competing jet ski customizing business in Paducah, Kentucky, HPT Sports USA, published statements about Hibdon on Grabowski's business website under a category called "Chop Shop."

On June 21, 2001, Kerry Hibdon filed a Complaint against George J. Grabowski, HPT Sport USA, Fagan Pace, Pace Tech, Ben Pennington, Ronnie Reels, Larry Talley, David Haynes and James Mehaffey (together the "Defendants") for libel and civil conspiracy.² The substance of the Complaint centered on statements published in 2000 and 2001 by the Defendants on the news group rec.sport.jetski, as well as on Defendant Grabowski's business website. Hibdon alleged that these remarks were defamatory and negatively affected his jet ski business. Hibdon claimed that the comments resulted in economic loss and caused him emotional distress. Hibdon further alleged that Defendant Grabowski offered low or no cost jet ski modification work to Defendants Talley, Haynes and Mehaffey, in exchange for those Defendants publishing comments on the rec.sport.jetski site, which were favorable to Grabowski and critical of Hibdon. On September 11, 2002, Hibdon amended his Complaint to seek damages for libels that were published after the filing of the Complaint. The Amended Complaint also asserts an additional claim for false light invasion of privacy.³

Between August 9, 2001 and November 5, 2001, Defendants Grabowski, Pace Reels, Talley and Pennington filed Rule 12.02 motions to dismiss asserting that venue in Warren County was improper. In addition, the non-resident Defendants Grabowski and Pace asserted that they were not subject to personal jurisdiction in the state of Tennessee. Defendants Grabowski, Pennington and Reels also asserted that the Complaint failed to state a claim upon which relief could be granted and moved for dismissal pursuant to Rule 12.02(6). On September 10, 2002, the trial court entered an Order denying Defendants' motions to dismiss, which reads, in pertinent part, as follows:

This cause came before the Court on August 29, 2002, for hearing of the Rule 12.02 motions to dismiss filed on behalf of the defendants Grabowski, Pace, Pennington, Reels and Talley. All of these defendants moved for dismissal on the asserted ground that venue in Warren County was improper. In addition, the non-resident defendants Grabowski and Pace asserted that they were not subject to the personal jurisdiction of this State. The defendants Grabowski, Pennington and Reels also asserted that the complaint failed to state claims against them upon which relief could be granted, and moved for dismissal pursuant to Rule 12.02(6).

After consideration of the record in this cause, including the affidavits filed in support of and in opposition to these motions, and after considering the oral and written argument of counsel, the Court finds that these motions are not well-taken and are in all respects DENIED. Pursuant to Rule 12.02(6), and at the request of counsel for the defendants Grabowski, Pennington and Reels, the Court also will treat the motions of these defendants as Rule 56 motions for summary judgment. The Court further finds that the Rule 56 motions for summary judgment of the defendants Grabowski, Pennington and Reels are not well-taken and are in all respects DENIED.

On January 14, 2003, Defendants Grabowski, Pace, Pennington, Reels and Talley filed an Answer and Counterclaim that denied the material allegations of the Complaint and asserted a separate counterclaim by Defendants Reels, Pennington and Talley for breach of contract and breach of warranty based upon Hibdon's allegedly deficient work performed on the Defendants' jet skis.

In addition to the affirmative defense...