Mark A. Winslow v. John Bruce Saltsman, Jr. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 27, 2015 Session
MARK A. WINSLOW v. JOHN BRUCE SALTSMAN, JR., ET AL.
Appeal from the Circuit Court for Davidson County
No. 11C229 Joseph P. Binkley, Jr., Judge
No. M2014-00574-COA-R3-CV – Filed October 21, 2015
Mark Winslow brought suit against Charles Fleischmann and his campaign advertising
consultant, John Saltsman, to recover for allegedly false and defamatory statements made
in the course of Mr. Fleishman‟s campaign for election to the United States Congress,
and related contractual claims. Mr. Fleishman and Mr. Saltsman moved for summary
judgment on the grounds that the statements were not false or capable of defamatory
meaning or published with actual malice, and that they took no action to induce a breach
of contract or otherwise interfere with the relationship between Mr. Winslow and the
Tennessee Republican Party. Mr. Winslow did not contest the grant of summary
judgment on the contract claims; the trial court granted the motion as to the defamation
and false light claims, holding that there was no evidence from which to infer malice, that
the statements were not defamatory or capable of a defamatory meaning, and that any
statements upon which the action was based which related to Mr. Winslow were either
true or substantially true and, therefore, not actionable. Mr. Winslow appeals. Because
Mr. Fleishman and Mr. Saltsman demonstrated that the undisputed facts negate the
element of actual malice which is essential to the defamation and false light claims, we
affirm the trial court‟s grant of summary judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
W. Gary Blackburn, Bryant Kroll and Raymond Throckmorton, III, Nashville,
Tennessee, for the appellant, Mark A. Winslow.
Paul C. Ney, Jr., Nashville, Tennessee, for the appellee, John Bruce Saltsman, Jr.
Richard E. Spicer, Brent S. Usery, and Lance W. Thompson, Nashville, Tennessee, for
the appellee, Charles J. Fleischman.
Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting
Solicitor General; and William J. Marett, Jr., Senior Counsel, for the Tennessee Attorney
General.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND1
Mark A. Winslow (“Winslow”) served as the Chief of Staff for the Tennessee
Republican Party (“TRP”) from September 2007 to June 2009; during Winslow‟s tenure,
Robin T. Smith, Chair of the TRP, (“Smith”) supervised him. In early May 2009, Smith
informed the TRP staff that she was considering running for United States Congress and
would be resigning her position. Smith offered the TRP staff contracts which would
ensure their employment through the end of 2009. Winslow accepted Smith‟s offer,
which continued his employment at a rate of $3,916.00 per month; his contract
(“Employment Agreement”) also included a termination clause stipulating that Winslow
was to be paid four months‟ salary, $15,664.00, if he was terminated without cause.
On May 15, 2009, Smith resigned; on May 31 the TRP elected a new Chair,
Samuel C. Devaney (“Devaney”). Devaney informed Winslow on June 3 that his
services were no longer needed as Chief of Staff and offered him a consulting position
through August 2009 at half his salary. Winslow declined the offer and on June 9
showed Devaney a copy of the Employment Agreement and presented him with a
Release and Non-Disclosure Agreement (“Winslow Proposal”), in which he proposed
that he immediately end his employment at the TRP and receive $15,664.00. With the
assistance of their respective counsel, Winslow and Devaney negotiated, and on June 15
signed a Release and Non-Disclosure Agreement (“Release Agreement”) whereby
Winslow would resign his employment effective June 4 and receive from TRP the total
sum of $12,504.00 in bi-weekly payments beginning June 15; the Release Agreement
contained a confidentiality provision which also prohibited either party from distributing
copies. On July 1, Smith announced her candidacy for Congress; shortly thereafter,
Winslow volunteered with her campaign and accepted employment as media coordinator.
Contemporaneously with these events, Charles J. Fleischmann (“Fleischmann”)
announced and began his candidacy for the congressional seat for which Smith was
running. Fleischmann hired S&S Strategies, owned and operated by John B. Saltsman,
1
The facts are taken primarily from the pleadings. affidavits filed relative to the summary judgment
motions, and the parties statements of undisputed facts, unless otherwise noted.
2
Jr. (“Saltsman”), to assist with his campaign‟s message, media presence, and advertising.
In the course of his work for Fleishmann‟s campaign, Saltsman obtained a copy of a
financial review of the TRP as of Smith‟s date of resignation which showed the TRP‟s
debts to exceed assets by $100,000.00, as well as $19,000.00 in overdrafts. Fleishmann
and Saltsman also became aware of Federal Election Commission (“FEC”) records
showing payments from the TRP to Winslow during the time that Winslow was working
on Smith‟s campaign. In late spring to early summer of 2010, Saltsman found an
envelope outside his garage containing both the Employment Agreement and the
Winslow Proposal.
In July 2010, one month before the primary, the Fleischmann campaign purchased
television and print advertisements stating that Smith “left the state Republican party over
$100,000.00 in debt[;] . . . [w]orse, on the way out the door, Smith gave her future
Congressional campaign staff lavish bonuses.” On July 19, in an interview on WGOW
radio station, Saltsman stated that Winslow “was paid out of the Republican Party funds
for three months while he was working for Robin Smith‟s campaign. So, in fact, he was
getting party funds to work on her congressional campaign,” and that the arrangement
was “against FEC violations and a bunch of other things.”2 Saltsman was quoted on July
27, by the Knoxville News Sentinel to say the TRP payments to Winslow were “at worst,
illegal and, at best, just plain wrong.” The following day, the Fleishmann campaign
launched a website presenting TRP financial records, FEC records showing TRP
payments to Winslow, the Employment Agreement and the Winslow Proposal. Smith
lost to Fleishmann in the election.
On January 18, 2011, Winslow filed suit against Saltsman, asserting that
Saltsman‟s statements on the radio and the release of the Employment Agreement and the
Winslow Proposal had cast Winslow in a false light and defamed him. Winslow also
asserted that Saltsman induced the TRP to breach the confidentiality provisions of the
Release Agreement and had, through his statements on the radio and release of the
Employment Agreement and Release Agreement, interfered with Winslow‟s prospective
business relations. On November 28, 2011, Fleischmann was joined as defendant;
Winslow filed his first amended complaint the next day, asserting the same claims against
Fleishmann as those against Saltsman.3
In due course Winslow moved for partial summary judgment on the claim of
inducement to breach contract. The court denied the motion, finding that genuine issues
2
The quoted statements are from Saltsman‟s affidavit which was filed in support of his motion for
summary judgment; the affidavit does not provide the specific date of the interview. The only evidence in
the record that provides a date for the interview is Winslow‟s affidavit, filed in opposition to the motion.
3
Winslow initially brought suit against Fleishmann in Davidson County Chancery Court on July 27,
2011. The suit was dismissed voluntarily January 23, 2012.
3
of material fact remained as to whether the Release Agreement was breached as well as
whether or not the parties had intended the confidentiality provision in the Release
Agreement to apply to the Winslow Proposal. On January 3, 2013, Winslow moved to
join the TRP as a defendant and to file a second amended complaint, alleging that the
TRP had breached the confidentiality provision of the Release Agreement; the motion
was granted.4 Winslow resolved his dispute with the TRP and it was dismissed from the
suit on November 18, 2013. On December 12 and December 13 Fleischmann and
Saltsman, respectively, moved for summary judgment on the claims of tortious
interference, inducement to breach contract, defamation, and false light. A hearing on the
motions was held on January 23, 2014, and on February 4, the court granted both
motions.
On February 13, 2014, Winslow filed a motion requesting the court to make
additional findings of fact and conclusions of law as follows:
1. That the court determine specifically whether the comments made by
Mr. Saltsman on WGOW Radio in Chattanooga, Tennessee by Mr.
Saltsman and subsequently endorsed upon the same program on a
different day by Mr. Fleischmann placed Plaintiff in a false light, and if
not, the specific reasons for so finding.
2. Whether it was substantially true that Mr. Winslow was guilty of illegal
conduct involving violations of federal election law, which conduct was
specifically comparable to that of the former Republican party chair in
the state of Florida who was under indictment at the time the comments
were made.[5]
3. Whether defamation by implication or innuendo is a separate,
independent tort from that of common law defamation and therefore had
to be pleaded separately.
4. Whether the pleadings in this case regarding the false light are sufficient
to state a claim as well of defamation by implication or by innuendo.
5. Whether the Court applied the summary judgment standards adopted by
the Tennessee Supreme Court in Hannon [sic] v. Alltel Publishing, Co.,
270 S.W.3d 1 (2008) or that proposed by the General Assembly in
T.C.A. § 26-16-101 with regard to each defendant.
4
References herein the “the complaint” are to the Second Amended Complaint unless otherwise noted.
5
Saltsman‟s affidavit and Winslow‟s statement of undisputed facts provide that Jim Greer was a
Republican Party chairman in Florida who was indicted for allegedly misappropriating $125,000.00 in
party funds.
4
On March 12, the court entered an order disposing of the motion. With respect to
Winslow‟s first two points, the court reiterated its February 4 ruling that the “subject
publications/communications” were not actionable as they were true or substantially true
and were not “of and concerning” Winslow and that the specific language of “lavish
bonuses,” “improper,” “illegal,” “plain wrong,” and “unethical” in those publications and
communications was “rhetorical hyperbole and/or statements of opinion based on
disclosed, non-defamatory facts,” and not actionable. Responding to the third and fourth
points, the court reiterated that defamation by implication or innuendo is a recognized tort
in Tennessee6 and that Winslow had failed to specifically plead it; the court went further
and held that, even had the defamation by implication or innuendo claim been properly
pled, Winslow would have failed to meet his burden to “come forward with clear and
convincing evidence from which a reasonable juror could infer actual malice” in that
regard. With respect to Winslow‟s fifth point, the court clarified that it had “considered
itself obligated to follow the holding of Hannan with regard to the Saltsman claim and
T.C.A. § 26-16-101 with regard to the Fleischmann claim.”
Winslow appeals, raising the following issues:
1. Whether the General Assembly intruded upon the separate judicial
powers of the Supreme Court in violation of the Constitution of the
State of Tennessee in enacting T.C.A. §20-16-101.7
2. Whether the trial court applied the correct summary judgment standard
in its ruling.
3. Whether the spoken words and publications of the defendants placed
Mark Winslow in a false light.
4. Whether accusing Mr. Winslow, a long-time loyal Republican, sixteen
(16) year employee of Senator Bill Frist, Jr., and former Executive
Director of the Republican Party, of conspiring with Ms. Robin Smith to
misappropriate Party money for use in a congressional race, and
characterizing him as engaging in unethical and illegal behavior would
have been highly offensive to a reasonable person in the position of Mr.
Winslow.
6
The court cited Eisenstein v. WTVF-TV, News Channel 5 Network, LLC., 389 S.W.3d 313, 318 n.5
(Tenn. Ct. App. 2012) for this proposition.
7
We do not reach this issue as it was not raised or addressed at the trial court level. Dorrier v. Dark, 537
S.W.2d 888, 890 (Tenn. 1976). As this court has previously noted, “failure to provide notice of a
constitutional challenge to the Attorney General as mandated by T.C.A. § 29-14-107 and T.C.A. 24.04 is
fatal „except to the extent the challenged statutes are so clearly or blatantly unconstitutional as to obviate
the necessity for any discussion.‟” Buettner v. Buettner, 183 S.W.3d 354, 358 (Tenn. Ct. App. 2005)
(quoting In re Adoption of E.N.R., 42 S.W.3d 26, 28 (Tenn. 2001)).
5
II. ANALYSIS
A motion for summary judgment should be granted only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show 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.” Tenn. R. Civ. P. 56.04. “The
party seeking the summary judgment has the burden of demonstrating that no genuine
disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009). Inasmuch as the complaint against
Saltsman was filed prior to July 1, 2011 and the complaint against Fleishmann filed after
that date, the standard we apply as we consider the motions for summary judgment in this
case is different.8
The framework for summary judgment analysis for cases filed prior to July 1,
2011 (referred to herein as the “Hannan standard”) is as follows:
The moving party may make the required showing and therefore shift the
burden of production to the nonmoving party by either: (1) affirmatively
negating an essential element of the nonmoving party‟s claim; or (2)
showing that the nonmoving party cannot prove an essential element of the
claim at trial. Both methods require something more than an assertion that
the nonmoving party has no evidence. Similarly, the presentation of
evidence that raises doubts about the nonmoving party‟s ability to prove his
or her claim is also insufficient. The moving party must either produce
evidence or refer to evidence previously submitted by the nonmoving party
that negates an essential element of the nonmoving party‟s claim or shows
that the nonmoving party cannot prove an essential element of the claim at
trial. . . .
If the moving party makes a properly supported motion, then the
nonmoving party is required to produce evidence of specific facts
establishing that genuine issues of material fact exist. The nonmoving
party may satisfy its burden of production by:
(1) pointing to evidence establishing material factual disputes
that were over-looked or ignored by the moving party; (2)
rehabilitating the evidence attacked by the moving party; (3)
producing additional evidence establishing the existence of a
genuine issue for trial; or (4) submitting an affidavit
8
Our standard of review of trial court‟s decision on motions for summary judgment is de novo with no
presumption of correctness of the trial court‟s decision, as the resolution of a motion for summary
judgment is a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); see also Martin v.
Norfolk Southern Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008).
6
explaining the necessity for further discovery pursuant to
Tenn. R. Civ. P., Rule 56.06.
McCarley [v. W. Quality Food Serv.], 960 S.W.2d at 588; accord Byrd [v.
Hall], 847 S.W.2d at 215 n.6. The nonmoving party‟s evidence must be
accepted as true, and any doubts concerning the existence of a genuine
issue of material fact shall be resolved in favor of the nonmoving party. “A
disputed fact is material if it must be decided in order to resolve the
substantive claim or defense at which the motion is directed.” A disputed
fact presents a genuine issue if “a reasonable jury could legitimately resolve
that fact in favor of one side or the other.” Id.
Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 83-84 (internal citations omitted);
see also Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
For cases filed after July 1, 2011, summary judgments are considered in
accordance with Tenn. Code Ann. § 20-16-101:
In motions for summary judgment in any civil action in Tennessee, the
moving party who does not bear the burden of proof at trial shall prevail on
its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential
element of the nonmoving party‟s claim; or
(2) Demonstrates to the court that the nonmoving party‟s
evidence is insufficient to establish an essential element of the
nonmoving party‟s claim.
Irrespective of the standard for summary judgment to be applied, the claims against
Saltsman and Fleishmann invoke the same substantive law.
Our Supreme Court adopted the following definition of false light invasion of
privacy from the Restatement of Torts when it recognized the tort as a cause of action in
Tennessee in West v. Media Gen. Convergence, Inc.:
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for
invasion of his privacy, if:
(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false light
in which the other would be placed.
7
West, 53 S.W.3d. 640, 645 (Tenn. 2001) (quoting Restatement (Second) of Torts § 652E
(1977).
Pertinent to the facts of this case, the West court held that “actual malice is the
appropriate standard for false light claims when the plaintiff is a public official or public
figure, or when the claim is asserted by a private individual about a matter of public
concern.” Id. at 647. Actual malice exists where the defendant publishes or makes a
statement “with knowledge that it was false or with reckless disregard of whether it was
false or not.” Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005) (citing
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). In Lewis v. NewsChannel
5 Network, L.P., this court discussed the nature and quantum of proof necessary to
establish reckless disregard in cases in which actual malice is the standard:
Failing to investigate information provided by others before
publishing it, even when a reasonably prudent person would have done so,
is not sufficient by itself to establish reckless disregard. However,
publishing statements when the publisher entertains serious doubts about
their truth can amount to reckless disregard. This subjective standard
requires a “high degree of awareness of ... probable falsity.” It may be
satisfied when there exists obvious reasons to doubt the veracity of the
person who supplied the information or the accuracy of the information
itself. Thus, while the “failure to investigate will not alone support a
finding of actual malice, the purposeful avoidance of the truth is in a
different category.”
238 S.W.3d 270 at 301 (Tenn. Ct. App. 2007)(internal citations omitted).
In the present case, Winslow has conceded that he is, at least, a limited public
figure. As a result, our focus is on whether “the record discloses clear and convincing
evidence upon which a trier of fact could find actual malice.” Piper v. Mize, No. M2002-
00626-COA-R3-CV, 2003 WL 21338696, at *7 (Tenn. Ct. App. June 10, 2003).
A. Saltsman Motion for Summary Judgment
At the outset, we note that Winslow contends that the statement contained in the
order granting summary judgment to Saltsman that “as a matter of law, Plaintiff failed to
meet his burden to come forward with clear and convincing evidence of actual malice.
Plaintiff made no affirmative showing of facts from which a reasonable juror could infer
actual malice” evidences that the court erroneously applied the Tenn. Code Ann. § 20-16-
101 standard rather than that set forth in Hannan. We do not agree with this contention.
Negating an essential element of the nonmoving party‟s claim is common to both the
Hannan standard and that set forth § 20-16-101. The language used by the trial court
8
and, more importantly, its resolution of the motion was, as more fully explained
hereinafter, consistent with the Hannan standard and applicable law.9
Winslow‟s complaint alleges in conclusory fashion that “Mr. Saltsman and Mr.
Fleischmann publicized matters concerning Mr. Winslow that placed him before the
public in a false light that was highly offensive to a reasonable person,” and that “[t]he
Defendants had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which Mr. Winslow was placed.” On appeal,
Winslow also argues that he was placed in a false light by Saltsman selectively presenting
words and documents.
In support of his motion, Saltsman filed his affidavit and a statement of undisputed
material facts.10 Citing the following paragraphs from his statement of undisputed facts,
Saltsman contends that he affirmatively negated the element of actual malice required for
Winslow‟s false light claim:
83. Mr. Saltsman believed that the factual elements of the statements in
issue that he made and that are alleged to be defamatory or constitute a
false light invasion of privacy were true or substantially true. (Saltsman
Affidavit, ¶ 8).11
85. Mr. Saltsman did not make or endorse any statement or advertisement
with knowledge that such statement was false. (Saltsman Affidavit, ¶ 9).12
86. At all times relevant to this matter, Mr. Saltsman had a good faith belief
that the statements and advertisements attributable to him were true as
9
The trial court specifically clarified in its Feb 13, 2013 order that it had applied the Hannan standard
with regard to Saltsman‟s motion for summary judgment and upon our review we find no evidence to
show otherwise.
10
In his statement of undisputed facts, Saltsman adopted and incorporated the 77 statements asserted in
Fleishmann‟s statement of undisputed facts and added 16 statements.
11
Paragraph 8 of Saltsman‟s affidavit states:
8. My statements that payments made to Mr. Winslow by the Tennessee Republican
Party while he was working for Robin Smith‟s congressional campaign as a result of the
employment arrangements made at the direction of Robin Smith were “at worst, illegal
and, at best, just plain wrong” and had “shades of Florida where Jim Greer, who was the
state party chair there, used state party funds for his own gains” were directed to the
actions and conduct of Ms. Smith. Furthermore, I believed then that the factual elements
of the statements were true or substantially true.
12
Paragraph 9 of Saltsman‟s affidavit states:
9. I did not make or endorse any statement or advertisement regarding Mr. Winslow with
knowledge that such statement was false.
9
reflected by news reports and articles, FEC reports, Plaintiff‟s employment
agreement, and the financial information concerning the TRP. (Saltsman
Affidavit, ¶ 10).13
87. At no time did Mr. Saltsman receive any information or other indication
that the statements or advertisements at issue were false. (Saltsman
Affidavit, ¶ 11).14
93. At all times relevant to this matter, Mr. Saltsman acted in good faith
and without malice towards Mr. Winslow. (Saltsman Affidavit, ¶ 15).15
Saltsman‟s affidavit and the quoted portions of his statement of undisputed facts
are evidence that he believed that his statements and the Fleishmann campaign
advertisements were true, and that the FEC reports, news articles, TRP financial
information, and the Employment Agreement reflected the truth of the statements. This is
evidence that Saltsman‟s statements and the Fleishmann campaign advertisements were
made without knowledge and without reckless disregard of any falsity, thereby negating
the actual malice element in the false light claim. The burden then shifted to Winslow to
produce evidence of specific facts establishing genuine issues of material fact on the
issue of actual malice. See Martin, 271 S.W.3d at 84.
13
Paragraph 10 of Saltsman‟s affidavit states:
10. At all times relevant to this matter, I had a good faith belief based on the information
that I had been provided that my statements at issue in this case and the campaign
advertisements published by the Fleischmann Campaign were true.
14
Paragraph 11 of Saltsman‟s affidavit states:
11. At no time have I received any information that caused me to question or doubt the
veracity or accuracy of or to harbor any serious doubt about the truthfulness of my
statements or actions at issue in this case or the advertisements published by the
campaign.
15
Paragraph 15 of Saltsman‟s affidavit states:
15. At all times relevant to this matter, I acted in good faith and without malice toward
Mr. Winslow.
10
In response to Saltsman‟s motion, Winslow filed his affidavit, his own statement
of undisputed facts, and responses to Saltsman‟s statement of undisputed facts.16
Winslow‟s responses to the undisputed facts quoted above state: 17
83. RESPONSE: Objection. Mr. Saltsman does not understand and has not
presented the factual elements and if he had this statement would be
compound.
85. RESPONSE: Objection and disputed. This statement is itself false and
compound. Belief in truth or actual truth is not a defense to Plaintiff‟s
claim for False Light and Defamation by innuendo. He characterized an
employment agreement as a “bonus.” Saltsman Dep., p. 83, L.9. He said
the arrangement was illegal and unethical. These are only examples.
86. RESPONSE: Objection and disputed. His subjective state of mind is
not a “fact.”
87. RESPONSE: Disputed. Saltsman has admitted in his deposition that the
employment agreement failed to mention a “bonus” and Winslow‟s June 9
proposal was not executed and the FEC payments did not match either. He
characterized the agreement as illegal. He gave stories to the press as a
confidential informant then quoted them as “proof.” He acknowledges that
the “audit” was a review and the state seal a forgery.
Winslow‟s 16-page affidavit contains 47 numbered paragraphs, the first 21 of which
recount a history of interaction, conflict and ill feelings between him and Saltsman in
various campaigns and internal political party matters going back to 1995. In the
remainder of the affidavit Winslow discusses the events leading to his departure as chief
of staff of the TRP; negotiations relative to the Employment Agreement and the Release
Agreement; and includes assertions relating to statements made by Saltsman on the radio
program, and to the print media, in the campaign television and direct mail
advertisements, and the documents posted on the internet website. There are no facts
asserted in Winslow‟s statement of undisputed facts that provide evidence of any actual
malice towards Winslow on the part of Saltsman.
Winslow‟s responses to the statement of undisputed facts are largely
argumentative and unresponsive to the particular facts relied upon by Saltsman as
pertinent to the issue of malice and which he asserts are undisputed. The responses
16
Winslow‟s responses incorporated his responses to Fleishmann‟s statement of undisputed facts as well
as the additional facts in Saltsman‟s statement.
17
Winslow did not respond to Undisputed Fact 93.
11
simply do not put at issue whether or not Saltsman acted with knowledge or reckless
disregard with respect to the veracity of his statements. 18 In like manner, many of the
statements in Winslow‟s affidavit are statements of past events in the context of the
political environment in which they both operated and are seasoned with antipathy and ill
will toward Saltsman. As noted in Lewis, however, “[t]he concept of „actual malice,‟ as
embodied in New York Times Co. v. Sullivan, should not be confused with the concept of
„malice‟ that connotes personal ill will, hatred, or spite.” Lewis 238 S.W.3d. at 300 (citing
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991)). Construing the
assertions in the affidavit liberally, they do not equate to the actual malice required for a
cause of action for false light.
Taken as a whole and in context, none of the matters set forth in Winslow‟s
affidavit, his responses to Saltsman‟s statement of undisputed facts, or his own statement
of undisputed facts establish a genuine issue of fact with respect to Saltsman‟s actual
malice.
Winslow also contends that Saltsman selectively presented words and documents
to portray Winslow negatively19; in his brief on appeal, Winslow does not cite us to
specific evidence in this regard. We have reviewed the record and determined that
Paragraphs 55, 57, and 58 of Saltsman‟s statement of undisputed facts contain relevant
statements. The pertinent statements of undisputed facts are:
55. In late spring or early summer 2010, Saltsman found on the step of his
garage an unmarked envelope containing a copy of Plaintiffs employment
agreement with the TRP signed by Smith and a copy of the proposed
release that Wes Kliner had prepared. (Saltsman Depo. 91:9-92:14;
Winslow April 11, 2012 Depo. 46:18-48:3).
57. Neither Saltsman nor Mr. Fleischmann had a copy of the executed
release until Plaintiff filed it as an exhibit to his complaints. (Affidavit of
Fleischmann; Saltsman Depo. 116:10-16; Winslow August 11, 2011 Depo.
180:12-22).
58. In the summer of 2010, the Fleischmann Campaign started a website,
www.viewtheproof.com, on which it published the TRP financial records,
18
Additionally, only one of Winslow‟s responses purports to be supported by specific citation to the
record as is required under Tenn. R. Civ. P. 56.03.
19
A false light claim may succeed even where the defendant‟s statements are literally true if the
statements made were “discrete presentations of information in a fashion which rendered the publication
susceptible to inferences casting [the plaintiff] in a false light.” West, 53 S.W.3d at 649 n.5 (citing Santillo
v. Reedel, 430 Pa.Super. 290, 634 A.2d 264, 267 (1993)).
12
Plaintiffs employment agreement, the FEC records, and Plaintiffs proposed
release. (Saltsman Depo. 41:15-43:9).
The quoted portions of Saltsman‟s statement of undisputed facts and the relevant
portions of the record evidence that Saltsman received copies of the Employment
Agreement and Winslow Proposal; that he made both documents available online in
conjunction with TRP financial records and FEC records; and that Saltsman did not
possess or publish the Release Agreement. This is evidence that Saltsman published all
the relevant documents in his possession and that he did not discretely present documents
with knowledge or reckless disregard of their susceptibility to inferences casting
Winslow in a false light; thus, the actual malice element of this portion of Winslow‟s
false light claim was negated and the burden to produce evidence to show the existence
of a genuine issue of fact with respect to actual malice shifted to Winslow.
Winslow responded to these relevant undisputed facts as follows:
55. RESPONSE: Undisputed that Saltsman has claimed this to have been
how he received documents from Mark Winslow‟s personnel file.
57. RESPONSE: Undisputed that Saltsman and Fleischmann has so
claimed.
58. RESPONSE: Disputed as to “TRP financial records.” Certain pages
were published, characterized as an “audit.”
Winslow‟s responses do not dispute Saltsman‟s factual statements nor do the
responses assert facts which create an issue for trial related to actual malice by Saltsman
in his handling of the materials. Winslow did not otherwise point to overlooked
evidence, rehabilitate evidence, produce any additional evidence establishing a genuine
issue, or submit an affidavit explaining the necessity of further discovery. See McCarley,
960 S.W.2d at 588.
The existence of actual malice is a necessary element for Winslow‟s false light
claim against Saltsman as well any surviving defamation claim. After reviewing the
materials submitted at the summary judgment stage in the light most favorable to
Winslow, there is no “clear and convincing evidence upon which a trier of fact could find
actual malice.” Piper, 2003 WL 21338696, at *7. Consequently, the trial court did not
err in granting summary judgment to Saltsman.
B. Fleischmann’s Motion for Summary Judgment
The allegations and arguments set forth against Fleishmann in Winslow‟s
complaint and on appeal, respectively, are those in the second paragraph of Section II A,
supra.
13
In support of his motion for summary judgment, Fleishmann filed his own
affidavit and a statement of undisputed facts. Fleishmann contends that he affirmatively
negated the element of actual malice required by Winslow‟s false light claim against him;
in support of this contention, Fleishmann cites his affidavit and other exhibits. Upon our
review of the record, we have determined that the following paragraphs from the
statement of undisputed facts contain the pertinent statements in this regard:
63. Saltsman‟s alleged statements that the payments made to Plaintiff were
“at worst, illegal and, at best, just plain wrong” or could be similar to
allegations against “Jim Greer” were not made, adopted, or repeated in any
campaign advertisement, direct mailing, or by Mr. Fleishmann personally.
(Affadavit of Fleishmann; Television Scripts SALTSMAN 000059-64;
Print Advertisements SALTSMAN 000065-72; Winslow August 11, 2011
Depo. 236:12-20).20
69. Mr. Fleischmann did not make or endorse any statement or
advertisement with knowledge that such statement was false. (Affidavit of
Fleischmann).21
70. At all times relevant to this matter, Mr. Fleischmann had a good faith
belief that the statements and advertisements attributable to him were true
as reflected by news reports and articles, FEC records, Plaintiff‟s
employment agreement, and the financial information concerning the TRP.
(Affidavit of Fleischmann).22
20
While the specific paragraph is not identified, we have reviewed Fleishmann‟s affidavit and Paragraph
9 appears to be the factual basis for Undisputed Fact 63:
9. I was not present for and did not participate in a radio interview of Mr. Saltsman on
WGOW on July 27, 2012. To my knowledge, alleged statements by Saltsman that
payments made to Mr. Winslow were “at worst, illegal and, at best, just plain wrong” or
similar to allegations against “Jim Greer” were not made, adopted, or repeated in any
campaign advertisement or direct mailing.
21
While the specific paragraph is not identified, we have reviewed Fleishmann‟s affidavit and Paragraph
10 appears to be the factual basis for Undisputed Fact 69:
10. I did not make or endorse any statement or advertisement regarding Mr. Winslow
with knowledge that such statement was false.
22
While the specific paragraph is not identified, we have reviewed Fleishmann‟s affidavit and Paragraph
11 appears to be the factual basis for Undisputed Fact 70:
11. At all times relevant to this matter, I had a good faith belief based on the information
that I had been provided that my statements at issue in this case and the advertisements
published by the campaign were true.
14
71. At no time did Mr. Fleischmann receive any information or other
indication that the statements or advertisements at issue were false.
(Affidavit of Fleischmann).23
Fleishmann‟s affidavit and statement of undisputed facts are evidence that
Saltsman‟s statements characterizing payments to Winslow as improper were not made or
adopted by Fleishmann, or attributable to him or his campaign; that he believed that his
statements and the campaign advertisements were true and that the FEC reports, news
articles, TRP financial information, and the Employment Agreement are evidence of the
truth of the statements. This evidence shows, regardless of the literal truth of the
statements and publications, that Fleishmann did not act with knowledge or reckless
disregard of any falsity in the referenced statements or campaign advertisements, thereby
negating the actual malice element in the false light claim. The burden then shifted to
Winslow to produce evidence of specific facts establishing genuine issues of material fact
on those issues. Martin, 271 S.W.3d at 84.
In response to Fleishmann‟s motion, Winslow filed his affidavit, responses to
Saltsman‟s statement of undisputed facts, and his own statement of undisputed facts.
Winslow responded to the undisputed facts quoted above as follows:
63. RESPONSE: Undisputed
69. RESPONSE: Disputed
70. RESPONSE: Disputed
71. RESPONSE: Disputed. No reasonable person would have concluded
the State of Tennessee audited the Republican Party. No lawyer licensed in
Tennessee would have confused an employment agreement with a “bonus.”
No reasonable person with a law license could have concluded that Mark
Winslow had violated the law. No one with simple math skills could have
concluded that amount to be paid under the contract matched the amount
paid by Chair Devaney.
There is no fact asserted in Winslow‟s affidavit or in his statement of undisputed facts
that addresses actual malice towards Winslow on the part of Fleishmann.
23
While the specific paragraph is not identified, we have reviewed Fleishmann‟s affidavit and Paragraph
12 appears to be the factual basis for Undisputed Fact 71:
12. At no time have I received any information that caused me to question or doubt the
veracity or accuracy of or to harbor any serious doubt about the truthfulness of my
statements at issue in this case or the advertisements published by the campaign.
15
Winslow does not dispute Paragraph 63 of Fleishmann‟s statement of undisputed
facts, his responses to Paragraphs 69 and 70 are not supported by a specific citation to the
record, and his response to Paragraph 71 consists solely of conclusory statements equally
unsupported by specific citation; they fail to meet the requirements of Tenn. R. Civ. P.
56.03.24 None of the matters set forth in Winslow‟s affidavit, responses to Fleishmann‟s
statement of undisputed facts, or Winslow‟s own statement of undisputed facts establish a
genuine issue of fact with respect to actual malice by Fleishmann.
Winslow also contends that Fleishmann selectively presented words and
documents to portray Winslow negatively. The relevant statements of undisputed fact
and responses are identical to those in our analysis in Section II A, supra; for the same
reasons we hold that Winslow did not create a genuine issue for trial related to actual
malice in Fleishmann‟s handling of the materials.
“[T]the moving party who does not bear the burden of proof at trial shall prevail
on its motion for summary judgment if it…[s]ubmits affirmative evidence that negates an
essential element of the nonmoving party‟s claim.” T.C.A. § 20-16-101. Fleishmann
affirmatively negated the element of actual malice in Winslow‟s false light claim against
him; consequently, we the trial court did not err in granting Fleishmann‟s motion for
summary judgment.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Fifth Circuit Court of
Davidson County.
________________________________
RICHARD H. DINKINS, JUDGE
24
“Any party opposing the motion for summary judgment must, not later than five days before the
hearing, serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is
undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion for summary
judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by
specific citation to the record.” Tenn. R. Civ. P. 56.03.
16