Taylor v. Nashville Banner Pub. Co.

• Decision Date: 31 March 1978
• Citation: 573 S.W.2d 476
• Parties: Robert L. TAYLOR, Plaintiff-Appellant, v. NASHVILLE BANNER PUBLISHING COMPANY, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 476

573 S.W.2d 476

Robert L. TAYLOR, Plaintiff-Appellant, v. NASHVILLE BANNER PUBLISHING COMPANY, Defendant-Appellee.

Court of Appeals of Tennessee, Middle Section.

March 31, 1978.

Rehearing Denied May 16, 1978.

Certiorari Denied by Supreme Court Nov. 6, 1978.

Fyke Farmer, Nashville, for plaintiff-appellant.

James F. Neal and Jon D. Ross, Neal & Harwell, Nashville, for defendant-appellee.

OPINION

DROWOTA, Judge.

This is an appeal by plaintiff, a public figure, from a summary judgment dismissing with prejudice his libel suit against defendant newspaper.

Plaintiff Robert L. Taylor is a well-known attorney, a former Chancellor, and a former judge of the western section of this Court. He once unsuccessfully sought the Democratic nomination for governor of Tennessee. In the spring of 1974, he was an active candidate for the Democratic nomination to the Supreme Court of Tennessee. Defendant Nashville Banner Publishing Company (Banner), one of two daily newspapers in Nashville, published two articles containing material allegedly defamatory of plaintiff on May 30 and May 31, 1974. The articles dealt with events surrounding the selection of Democratic candidates for the Supreme Court.

The Tennessee Supreme Court is composed of five judges, "of whom not more than two shall reside in any one of the grand divisions of the State." Tennessee Constitution Art. 6, § 2. Supreme Court judges are to be "elected by the qualified voters of the State" according to such rules as the legislature prescribes. Tennessee Constitution, Art. 6, § 3. Article 6, § 5 of the State Constitution provides that the judges of the Supreme Court shall appoint the Attorney General of the State. By tradition, the Attorney General is appointed from the one grand division, east, middle, or west, that is represented by only one Supreme Court judge.

At one time, judges of all the appellate courts of this State were chosen by means of a merit selection plan. This plan, set out in T.C.A. §§ 17-701 17-716, provides for the governor to fill judicial vacancies by appointing one person from a group of three recommended by the appellate court nominating commission, a body established by the statute. The appointee then appears on the next general election ballot to be accepted or rejected by the voters on a "yes/no" basis. While this system still applies to intermediate appellate courts, the legislature in 1974 excepted the Supreme Court judges from its operation. The result is that Supreme Court judges are selected in popular, contested elections much like holders of political offices in the executive and legislative branches of government.

In the spring of 1974, the State's political parties were anticipating the election of Supreme Court judges to be held in August of that year. The Tennessee State Democratic Executive Committee, which was to choose its party's five nominees for the Court, had scheduled a meeting in Nashville for that purpose for June 1, 1974. The Committee had received from a special Judicial Selection Commission the names of eight people recommended as qualified for the Court. Plaintiff Taylor's name was not one of the eight names submitted. The Executive Committee was not absolutely bound to choose its five nominees from among the eight recommended, however, and plaintiff remained an active candidate.

In the context of this political nominating process, the Banner published the first story of which plaintiff complains on May 30, 1974. The gist of the story was that a great deal of political maneuvering was occurring in Democratic ranks with respect to the Supreme Court nominations. In the part of the story particularly complained of by plaintiff, and alleged to be defamatory of him, it is stated that plaintiff was actively seeking the nomination, "possibly by working a deal with the liberal element of the executive committee whereby . . . Russell Sugarman, a black, would be made attorney general" if plaintiff were nominated to the Court. The entire article is reprinted in an appendix to this opinion, and is further discussed below.

On May 31, 1974, the day before the Executive Committee meeting, the Banner published the second article of which plaintiff now complains. The article told of bribery charges lodged with the District Attorney General in Nashville by a member of the Democratic Executive Committee. The Committee member, it was reported, "said an attempt was made this week to 'buy my vote' for Memphis Attorney, Robert Taylor" by an unidentified man and woman. The article went on to describe in detail the attempted bribe, the Committee member's refusal, and her filing of a statement with District Attorney General Shriver, who was said to be investigating the matter. The entire article is reproduced in the appendix to this opinion.

At the June 1 meeting, the Executive Committee chose its five nominees from the list of eight recommended. Plaintiff was not one of the five chosen. All five Democratic candidates were successful in the August election, and they constitute our present Supreme Court.

On May 27, 1975, plaintiff brought the instant libel suit against the Banner in Davidson County Circuit Court, alleging that the articles of May 30 and 31, 1974, defamed him. Plaintiff claimed in his complaint that the articles injured his reputation and resulted in his failing to get enough Executive Committee votes for nomination. He asked $500,000.00 in compensatory and punitive damages. The complaint was amended, in March of 1976, to allege that the articles were published "maliciously," that they were "calculated by the defendant to injure plaintiff's candidacy for nomination," and that they "did produce actual damages to the plaintiff by causing him to fail to secure enough votes."

Defendant Nashville Banner took the position that the constitutional privilege first established in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applied, and that there was no evidence of "actual malice" as defined in that case. On October 8, 1975, defendant filed its motion for summary judgment. Two grounds for dismissal were asserted: (1) that the language complained of is unambiguous and not defamatory; and (2) that there is no genuine issue of material fact on the issue of actual malice. In support of its motion, defendant attached certain affidavits and depositions. The depositions were ones taken early in 1975 in the case of Taylor v. Tennessee State Democratic Executive Committee, a suit brought by plaintiff in the Chancery Court for Shelby County. Because it perceived the case as a serious and unusual one, the trial court permitted the parties to engage in very extensive discovery over a long period of time before ruling on the summary judgment motion. Further discovery consisted in large part of new depositions, including fresh testimony from some of those whose depositions in the Chancery case had already been submitted.

On January 5, 1977, the trial court filed a lengthy memorandum opinion in which it sustained defendant's motion for summary judgment on all grounds as to both articles. The opinion contains an orderly and thorough presentation of the facts, and an accurate and extensive discussion of applicable law. It also embodies the court's conclusion that the articles in question are not defamatory of plaintiff, and that there is absolutely no evidence to indicate that plaintiff could prove that defendant published them with "actual malice" within the meaning of New York Times Co. v. Sullivan, supra. In accordance with this opinion, the court on January 7, 1977, entered an order granting defendant's motion for summary judgment and dismissing the case. Plaintiff has appealed.

Plaintiff has raised five assignments of error in this Court. In the first, plaintiff complains of the trial court's conclusion that the articles are not defamatory of him. In the second assignment he disputes the conclusion that there is no genuine issue of material fact on the question of actual malice. In the third assignment plaintiff alleges that the trial court erred in refusing to allow him to amend his complaint, while in the fourth he complains that the trial court improperly weighed the evidence and determined the credibility of the witnesses. In the fifth assignment of error plaintiff simply avers that the trial court erred in granting summary judgment. We will examine the May 30 article in the light of the first two assignments of error, and then proceed to treat the May 31 article in the light of the same two assignments. Finally, we will examine plaintiff's third, fourth and fifth assignments of error.

Summary judgment is to be rendered by a trial court only when it is shown that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." T.R.C.P. 56.03. The summary judgment procedure is not to be regarded as a substitute for trial of disputed factual issues. Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975); Layhew v. Dixon, 527 S.W.2d 739 (Tenn.1975). The party who moves for summary judgment has the burden of showing that no genuine issue of material fact exists, and in ruling on the motion the court must view the record in the light most favorable to the motion's opponent. Lucas Brothers v. Cudahy Co., 533 S.W.2d 313 (Tenn.App.1975). With this standard in mind, we turn to the merits of plaintiff's appeal.

THE ARTICLE OF MAY 30 1974

In his first assignment, plaintiff contends that the trial court erred in concluding that the article of May 30, 1974, is not defamatory of him. Plaintiff points especially to the sixth paragraph of the article. The first six paragraphs read as follows:

Intense political maneuvering that has been termed by one insider as "a hell of a lot of dealing" may determine the nominations for the State Supreme Court.

Jockeying, dealing and political pressure are all part of the picture as candidates are attempting...