Lewis v. Newschannel 5 Network, L.P.

• Decision Date: 31 May 2007
• Docket Number: No. M2005-00458-COA-R3-CV.,M2005-00458-COA-R3-CV.
• Citation: 238 S.W.3d 270
• Parties: Bradford Jason LEWIS v. NEWSCHANNEL 5 NETWORK, L.P., et al.
• Court: Tennessee Court of Appeals

238 S.W.3d 270

Bradford Jason LEWIS v. NEWSCHANNEL 5 NETWORK, L.P., et al.

No. M2005-00458-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

June 27, 2006 Session.

May 31, 2007.

Permission to Appeal Denied by Supreme Court September 17, 2007.

Robert L. DeLaney, Nashville, Tennessee, for the appellant, Bradford Jason Lewis.

Jon D. Ross and Ronald G. Harris, Nashville, Tennessee, for the appellees, NewsChannel 5 Network, L.P., Deborah Turner, Mike Cutler, and Phil Williams.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN, J., and DAVID H. WELLES, Sp. J., joined.

This appeal involves a television news story about the discipline of a high ranking official of the Metropolitan Nashville Police Department who interceded with a subordinate to prevent his brother-in-law's arrest. Following the broadcast, the police official and his brother-in-law filed separate lawsuits against the television station and three of its employees in the Circuit Court for Davidson County seeking damages for libel and false light invasion of privacy. The television station and its employees filed a motion for summary judgment based on the common-law fair report privilege and on its defense that the heightened "actual malice" burden of proof applied to all claims. In response, the police official's brother-in-law asserted that he should not be held to the "actual malice" standard because he was a private person and because the news story involved a matter of purely private concern. The trial court granted the summary judgment and dismissed the complaints filed by the police official and his brother-in-law. With specific regard to the police official's brother-in-law, the court determined that the television station and its employees were shielded by the fair report privilege. It also concluded that the police official's brother-in-law was not a public figure for the purpose of his libel claim but that he had failed to demonstrate that he would be able to carry his burden of proof to establish a simple negligence claim against the television station and its employees. The court also concluded that the actual malice burden of proof applied to the false light invasion of privacy claim and that the police official's brother-in-law had failed to establish that the television station and its employees had acted with actual malice. Only the police official's brother-in-law appealed. He asserts that the trial court erred by applying the fair report privilege and by concluding that he could not successfully prove that the television station and its employees had been negligent in their investigation and broadcast of the news story. We have determined (1) that the trial court erred by holding that the fair report privilege applies in this case; (2) that the police official's brother-in-law is a limited purpose public figure and, therefore, cannot recover damages unless he can prove that the television station and its employees acted with actual malice; and (3) that the police official's brother-in-law cannot prove that the television station and its employees acted with actual malice in the investigation and broadcast of the news story.

I.

Sometime in early 2000, Phil Williams, an investigative reporter for NewsChannel 5, a television station located in Nashville, began receiving tips about the alleged misconduct of members of the Metropolitan Nashville Police Department ("Department"). Mr. Williams discussed these tips with Mike Cutler, NewsChannel 5's news director. They decided that Mr. Williams should follow up on the most credible tips. Major Carl Dollarhide, the Commander of the Patrol Division, soon became the focus of the investigation. Eventually NewsChannel 5 broadcast four stories about Major Dollarhide.

Mr. Williams's first news story was broadcast on July 11, 2000. It described the close personal relationships between Jimmy Lewis and Major Dollarhide and other high ranking police officials. The story stated that Department rules prohibited officers from associating with convicted felons or persons connected with criminal activity. It pointed out that Jimmy Lewis¹ had pled guilty to a federal gambling charge in 1991. It also pointed out that Jimmy Lewis was the lessee of record for a number of buildings in Nashville housing popular restaurants, as well as a number of sex shops and strip clubs.

The July 11, 2000 news story questioned the propriety of Officer Herb Kajihara, a vice officer, arranging for off-duty police officers to provide security for special events at Jimmy Lewis's restaurants. Part of the story included video footage of Jimmy Lewis having lunch with Major Dollarhide and other high ranking police officers. The story indicated that the rules relating to non-work related contact might not apply to Major Dollarhide's relationship with Jimmy Lewis because Major Dollarhide was married to Jimmy Lewis's daughter² and because Jimmy Lewis was the grandfather of Major Dollarhide's child.

The second news story aired on July 12, 2000. In this story, Mr. Williams focused on the cozy relationship between Major Dollarhide, Jimmy Lewis, the Printer's Alley Merchants Association, and other downtown nightclub owners. Jimmy Lewis had financial interests in a number of these businesses. When regular police officers began responding to complaints involving various downtown clubs, including those in Printer's Alley, they encountered resistance from the off-duty police officers who had been hired to provide security for the clubs.³ In a televised interview, Captain Joey Bishop stated that Major Dollarhide had arranged a meeting between him and the club owners. Captain Bishop also stated that Major Dollarhide later instructed him to lay off of certain establishments and to deploy his officers elsewhere.

Mr. Williams's third news story about Major Dollarhide aired during the 10:00 p.m. news on July 25, 2000. This story focused on Major Dollarhide's intercession on behalf of his "long-time friend," Charles King. The story focused on a run-in between Mr. King and the police. It reported that Mr. King had been stopped for reckless driving and that the officer had found a pistol under the front seat of his vehicle. Mr. Williams reported that Mr. King's lawyer, Bryan Lewis, was one of Jimmy Lewis's sons and also Major Dollarhide's brother-in-law. He stated that Major Dollarhide had allegedly applied pressure on the arresting officers to drop the charges against Mr. King. Mr. Williams also reported that the prosecutor's file contained a written note that officers had reported that "a police major has been applying pressure to get the case dropped." District Attorney General Victor S. Johnson III confirmed in an on-camera interview that "[w]e felt there was enough merit to at least refer it out, so it was looked at by an outside agency. To go beyond that, I don't think I can." Mr. Williams also reported that an active investigation had begun within the police department's internal affairs division to determine whether any departmental rules had been violated.

By the time Mr. Williams arrived at work on July 26, 2000, there were two anonymous messages on his hotline. These messages involved yet another incident involving Major Dollarhide. The tipsters, who identified themselves only as police officers, claimed that Major Dollarhide had also acted to prevent the arrest of Brad Lewis, Jimmy Lewis's son. During the day, Mr. Williams received a third telephone call from a police officer regarding the Brad Lewis incident. The caller stated that he preferred to remain anonymous because he feared for his job and his safety. He told Mr. Williams that Brad Lewis had been stopped at a roadblock on the Ashland City Highway that had been set up following a prison escape. He also told Mr. Williams that the officer who stopped Brad Lewis found a sawed-off shotgun, a bag containing gambling slips, and a significant amount of cash in Mr Lewis's pickup truck. The caller also told Mr. Williams that Major Dollarhide had intervened to ensure that Brad Lewis, his brother-in-law, would not be arrested.

When Mr. Williams asked the caller how this information could be corroborated, the caller suggested that "Officer Dunn" would be a good person to contact. He also stated that he did not know how to contact Officer Dunn. Mr. Williams did not know Officer Dunn, but he was able to discover his full name — Michael Dunn — along with his home address. Accordingly, Mr. Williams decided to have a face-to-face conversation with Officer Dunn rather than talking with him by telephone.

Mr. Williams drove to Officer Dunn's house and found Officer Dunn and his wife working outside. When Officer Dunn approached Mr. Williams and asked whether he needed any help, Mr. Williams identified himself as a reporter and told Officer Dunn about the information he had received regarding Brad Lewis and Major Dollarhide. Officer Dunn was not pleased to have a television reporter at his home and was reluctant to talk about the incident that had occurred two years earlier on December 27, 1998. Eventually he hesitantly agreed to listen to the information that Mr. Williams had received, to correct any erroneous information, and to provide additional elaboration when it was needed.

After Mr. Williams recounted the information he had received, Officer Dunn stated that he was certain that Brad Lewis had been in possession of gambling slips, an estimated $24,000 in cash, and a sawed-off shotgun. He concurred with most of the information Mr. Williams had already received except one detail involving Jimmy Lewis. The anonymous caller had told Mr. Williams that Jimmy Lewis was with Major Dollarhide when Major Dollarhide picked up Brad Lewis. Officer Dunn stated that Jimmy Lewis did not come to the scene with Major Dollarhide. Officer Dunn also stated that he met Jimmy Lewis later that night when he turned over the bag containing the cash...