Tabor v. Eakin

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE May 26, 1999
Cecil Crowson, Jr.
Appellate C ourt
JOHN G. TABOR, Individually, ) C/A NO. Clerk
03A01-9902-CV-00043
and TABOR CONSTRUCTION, INC., )
)
Plaintiffs-Appellants, )
)
v. )
) APPEAL AS OF RIGHT FROM THE
) KNOX COUNTY CIRCUIT COURT
)
CHRISTI EAKIN, GETTYSVUE )
PARTNERS, L.P., CLUB PARTNERS, )
INC., and WANG LAU and wife, )
FLORENCE LAU, )
) HONORABLE DALE C. WORKMAN,
Defendants-Appellees. ) JUDGE
For Appellants For Appellees Christi Eakin,
Gettysvue Partners, L.P.,
THOMAS R. HENLEY and Club Partners, Inc.
Lufkin, Henley & Conner
Knoxville, Tennessee RICKY L. APPERSON
Spicer, Flynn & Rudstrom, PLLC
Knoxville, Tennessee
For Appellees Wang Lau and
Florence Lau
JAMES Y. (BO) REED
JAMES C. CONE
Jenkins & Jenkins, PLLC
Knoxville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
The plaintiffs, John G. Tabor and Tabor Construction,
Inc. (collectively, “Tabor”), brought this action for damages
against Christi Eakin (“Eakin”), Gettysvue Partners, L.P., Club
Partners, Inc., and Wang Lau and his wife, Florence Lau (“the
Laus”), alleging that the defendants were guilty of “libel and
slander1 and defamation.” The trial court dismissed each of
Tabor’s claims against the various defendants,2 Tabor appeals,
raising the following issues for our consideration:
1. Did the trial court err in dismissing the
Laus on the ground that they did not publish
the libelous letter from Eakin?
2. Did the trial court err in dismissing the
Laus on the ground that their libelous
communications were absolutely privileged?
3. Did the trial court err in dismissing
Eakin, Gettysvue Partners, L.P., and Club
Partners, Inc., on the ground that the
libelous letter from Eakin was an absolutely
privileged communication?
We affirm.
I. Facts and Procedural History
The core facts of this controversy are essentially
undisputed. The Laus contracted with Tabor to build a house in
Gettysvue Subdivision in Knox County. Various disputes arose
between the Laus and Tabor regarding the construction of the
house and the amount owed by the Laus. According to the Laus,
1
Tabor apparently has abandoned the slander claim.
2
Gettysvue Polo, Golf and Country Club was also named as a defendant in
the complaint, but was dismissed on its motion. Tabor specifically excepted
Gettysvue Polo, Golf and Country Club from the notice of appeal, and it is
therefore not a party to this appeal.
2
Tabor, among other things, had failed to complete the agreed-upon
landscaping work; had failed to complete construction in various
areas of the house; had demanded an excessive amount to complete
work on the basement; and had failed to build a sun deck in
accordance with proper safety specifications.
The Laus subsequently received a letter from Eakin, the
Vice President of Gettysvue Partners, L.P., which letter states
as follows:
On Tuesday, April 15, 1997 and on behalf of
the Gettysvue developers, I inspected the
landscaping at your home. Gettysvue
covenants and restrictions require that your
yard be sodded and landscaped according to
the landscaping plans which were submitted
and approved. Although you have taken
residence, the sod and landscaping at your
home have not been completed. Clearly, the
incomplete status of your landscaping is in
violation of the covenants and restrictions.
As I understand, the builder, John Tabor,
refuses to complete the landscaping which he
is required to do pursuant to your building
contract. I am sorry and do sympathize with
your situation. In fact, I daily receive
complaints regarding Mr. Tabor’s actions from
not only his customers, but also from vendors
and suppliers in the Knoxville area. As you
know, Gettysvue has officially notified Mr.
Tabor that he is no longer allowed to build
in Gettysvue. His total lack of cooperation
and refusal to abide by the Gettysvue
restrictions as well as the complaints
prompted this decision.
I am very concerned about all of the
unsuspecting potential home customers with
whom he may come in contact, because just as
you did, others will place faith in him that
he will fulfill his contract obligations.
Just recently, I learned that he is building
a home in the “Parade of Homes” in
Whittington Creek on Northshore Drive.
Amazing, isn’t it? It is difficult to
believe that the Tennessee Board of Licensing
Contractors and/or Knoxville Home Builders
3
Association would continue to allow him to
conduct business.
While as [sic] I have communicated my
understanding of your situation, I still need
to understand the resolution. Please keep me
updated, and I will do whatever I can to
help.
(Underlining in original.)
Shortly thereafter, the Laus filed a complaint against
Tabor with the Tennessee Board for Licensing Contractors (“the
Board”). Along with various other information in the complaint,
the Laus forwarded a copy of Eakin’s letter, as well as a letter
from Mr. Lau which states as follows:
I am filing a complaint against Tabor
Construction, Inc. and Mr. John Tabor and am
reporting violations as the Tennessee
registration law requires. Please see
attachment.
This complaint is not an ordinary complaint
regarding [a] Contractor not performing work.
This Contractor has been “disbarred” from
building at the Gettysvue Polo, Golf, and
Country Club, a new and big subdivision in
Knoxville where Mr. Tabor had started at
least seven houses.... This Contractor has
also persisted in the violation of safety
practices and building codes and has also
engaged in the practice of gouging his
clients for money. The professional conduct
of the Contractor is highly questionable.
It is understood that the license of Tabor
Construction, Inc., is up for renewal on May
31, 1997.
I trust that the Board will make a timely
inquiry into this matter. I shall be in full
cooperation with the Board as the law
requires.
(Bold lettering in original.)
4
Tabor subsequently filed this action against Eakin,
Gettysvue Partners, L.P., Club Partners, Inc.,3 and the Laus. In
the complaint, Tabor alleges that the majority of Eakin’s letter,
several statements in Mr. Lau’s letter to the Board, and numerous
other statements contained in the Laus’ complaint to the Board
are libelous. With regard to Eakin’s letter, Tabor’s theory is
set forth in the complaint as follows:
...Wang L. Lau, with the full knowledge and
consent and approval and assistance and
cooperation and in conspiracy with defendants
Christi Eakin and his wife Florence Lau did
solicit, encourage, urge and assist defendant
Eakin to write the said letter with the
express purpose of publishing it in his
complaint to [the Board] which he filed with
the Board on or about May 1, 1997. Defendant
Lau informed defendant Eakin that he was
going to use it in his complaint to the
Board, and she composed and published the
said letter knowing that it would be used
against plaintiffs and that it would be
published to the Board and to others.
The Laus filed a motion to dismiss and/or for summary
judgment. They also filed a joint affidavit in which they
stated, among other things, that they did not cause, request or
suggest that Eakin’s letter be written or mailed to them, and,
furthermore, that they did not act in conspiracy with any of the
other defendants to cause the letter to be published. Eakin,
Gettysvue Partners, L.P., and Club Partners, Inc., also filed a
motion to dismiss. Their motion was unsupported by any material
outside the pleadings. Tabor did not file any factual matters in
response. The trial court granted the motion of each defendant,
and Tabor appealed.
3
Club Partners, Inc. apparently is the general partner of Gettysvue
Partners, L.P.
5
II. Applicable Law
The Supreme Court has held that “statements made in the
course of a judicial proceeding that are relevant and pertinent
to the issues involved are absolutely privileged and cannot be
the predicate for liability in an action for libel....” Lambdin
Funeral Serv., Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn.
1978); Jones v. Trice, 360 S.W.2d 48, 50 (Tenn. 1962). This
concept is to be liberally construed so as to insure unfettered
access to the judicial process. See Myers v. Pickering Firm,
Inc., 959 S.W.2d 152, 161 (Tenn.App. 1997).
This general rule applies in “administrative
proceedings before boards or commissions that are clothed with
the authority to revoke a license ‘after a hearing for good cause
shown....’” Lambdin, 559 S.W.2d at 792. As the Court in Lambdin
explained,
[t]he “judicial proceeding” to which the
immunity attaches has not been defined very
exactly. It includes any hearing before a
tribunal which performs a judicial
[f]unction, ex parte, or otherwise, and
whether the hearing is public or not.... It
extends also to the proceedings of many
administrative officers such as boards and
commissions, so far as they have powers of
discretion in applying the law to the facts
which are regarded as judicial, or “quasi-
judicial” in character. Thus the ordinary
administrative proceeding to revoke a license
is held to lie within the privilege.
Id. (quoting from PROSSER , LAW OF TORTS (3d ed. 1964)). (Emphasis
in Lambdin).
6
In Lambdin, the plaintiffs brought suit after the
defendant had, among other things, filed charges against them
with the Tennessee Board of Funeral Directors and Embalmers, and
had participated in the ensuing hearing before that Board. The
Supreme Court observed that the Board in question possessed the
authority to revoke the plaintiffs’ license, and also noted that
the statements at issue had been pertinent to the issues involved
in that proceeding. Finding that the defendant’s statements were
absolutely privileged, the Court affirmed the trial court’s
dismissal of the plaintiffs’ claims for slander, libel,
conspiracy to libel and defame the plaintiffs, and invasion of
privacy. Id. at 791-92.
We have previously pointed out the Supreme Court’s
“willingness to extend the doctrine [of absolute privilege] to
communications preliminary to proposed or pending litigation.”
Myers, 959 S.W.2d at 161.4 (Emphasis added.)
III. Tabor’s Claim Against the Laus
We shall first address the propriety of the trial
court’s grant of summary judgment to the Laus.
We review the trial court’s decision against the
standard of Rule 56.04, Tenn.R.Civ.P., which provides in
pertinent part as follows:
4
In Myers, we found a consultant’s report criticizing an architectural
firm’s work to be absolutely privileged, as published to the party with whom
the firm had contracted, where the report contained information that was
pertinent and relevant to pending litigation and was prepared in anticipation
of testimony. Id. at 160-61.
7
...the judgment sought shall be rendered
forthwith 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....
When reviewing a grant of summary judgment, an appellate court
must decide anew if judgment in summary fashion is appropriate.
Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.
1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d 42, 44-45
(Tenn.App. 1993). Since this determination involves a question
of law, there is no presumption of correctness as to the trial
court’s judgment. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.
1997); Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996). In
making our determination, we must view the evidence in a light
most favorable to the nonmoving party, and we must draw all
reasonable inferences in favor of that party. Byrd v. Hall, 847
S.W.2d 208, 210-11 (Tenn. 1993). Summary judgment is appropriate
only if no genuine issues of material fact exist and if the
undisputed material facts entitle the moving party to a judgment
as a matter of law. Rule 56.04, Tenn.R.Civ.P.; Byrd, 847 S.W.2d
208, 211 (Tenn. 1993).
As explained in Byrd, “the party seeking summary
judgment has the burden of demonstrating to the court that there
are no disputed, material facts creating a genuine issue for
trial... and that he is entitled to judgment as a matter of law.”
Id. at 215. One method of accomplishing this is by “conclusively
establish[ing] an affirmative defense that defeats the nonmoving
party’s claim....” Id. at 215 n.5.
8
In the instant case, the Laus submitted an affidavit in
which they denied being responsible, in any way, for the initial
publication of Eakin’s letter. The trial court subsequently
determined that no material issues of fact existed as to whether
the Laus had caused, or had conspired to cause, the publication
of the letter. Significantly, Tabor submitted no affidavits or
other material to contradict the Laus’ affidavit. Accordingly,
we hold that the trial court was correct in granting summary
judgment to the Laus as to the publication of Eakin’s letter to
the Laus. On the facts before the trial court, and now before
us, the Laus were not culpable with respect to the initial
publication of Eakin’s letter, and therefore under no
circumstances can they be found liable for its initial
publication.5
Tabor also alleges a cause of action against the Laus
predicated on their filing of the complaint with the Board.
Tabor contends that the filing of the complaint and the
supporting documentation, including the re-publication of the
Eakin letter, amount to an actionable publication of libelous
material. On the contrary, we agree with the trial court’s
determination that such material is absolutely privileged. This
conclusion is supported by the Supreme Court’s holding in
Lambdin, discussed above, and the cases holding that the doctrine
of absolute privilege espoused in Lambdin is to be broadly
applied. See, e.g., Myers, 959 S.W.2d at 151. Furthermore, it
is clear that the statements in question concerned the
5
Even if the Laus had prompted Eakin to write them the letter, we do not
understand how they can be held legally responsible for publishing a libelous
letter to themselves.
9
circumstances surrounding the various disputes between the Laus
and Tabor, and, as such, were “relevant and pertinent to the
issues involved” in the Laus’ complaint to the Board. See
Lambdin, 559 S.W.2d at 792.
In light of the fact that the statements in the Laus’
complaint to the Board, including the supporting material, are
absolutely privileged, we hold that the Laus conclusively
established an affirmative defense to Tabor’s libel claim. It is
also clear that Tabor failed to set forth specific facts
demonstrating the existence of disputed, material facts creating
any genuine issue that would require a determination by a trier
of fact. See Byrd, 847 S.W.2d at 215. Accordingly, the trial
court’s grant to the Laus of summary judgment with respect to
their complaint to the Board was proper. Rule 56.04,
Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 215.
IV. Tabor’s Claim Against Eakin,
Gettysvue Partners, L.P., and Club Partners, Inc.
We next turn to the trial court’s grant of the
remaining defendants’ joint motion to dismiss. Our standard of
review of a trial court’s decision on such a motion is well-
settled:
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. In
considering this appeal from the trial
court’s grant of the defendant’s motion to
dismiss, we take all allegations of fact in
10
the plaintiff’s complaint as true, and review
the lower courts’ legal conclusions de novo
with no presumption of correctness.
Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).
(Citations omitted.)
As noted earlier, Tabor alleges in the complaint that
the Laus and Eakin had conspired to effectuate the publication of
Eakin’s letter, and, specifically, that Eakin had “composed and
published the said letter knowing that it would be used against
plaintiffs and that it would be published to the Board and to
others.”6 The trial court, however, in ruling on the motion to
dismiss, held that the allegedly libelous letter from Eakin to
the Laus was an absolutely privileged communication. Although
the trial court did not specify the basis for this conclusion, we
are of the opinion that the same reasoning applicable to the
Laus’ communications to the Board applies here, i.e., the
statements contained in Eakin’s letter were absolutely privileged
by virtue of the fact that they were made -- according to the
complaint itself -- in anticipation of a quasi-judicial
proceeding before the Board. See Lambdin, 559 S.W.2d at 792;
Myers, 959 S.W.2d at 161. In other words, Tabor is bound by the
factual allegations contained in the complaint, and, taking those
allegations as true, Eakin’s statements would be absolutely
privileged. Furthermore -- as in the case of the statements
communicated to the Board by the Laus -- the statements contained
in Eakin’s letter were “pertinent and relevant” to the Laus’
anticipated complaint to the Board. See Lambdin, 559 S.W.2d at
6
Tabor does not allege that anyone other than the Laus and the Board
received Eakin’s letter.
11
792. Thus, they cannot form the predicate for a finding of
liability for libel on the part of Eakin, Gettysvue Partners,
L.P., and Club Partners, Inc. On its face, the complaint as to
these defendants makes out an affirmative defense to the alleged
cause of action.
We therefore hold that the trial court correctly
granted the remaining defendants’ motion to dismiss.
V. Conclusion
The judgment of the trial court is affirmed. Costs on
appeal are taxed to the appellants. This case is remanded to the
trial court for the collection of costs assessed there, pursuant
to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Houston M. Goddard, P.J.
_________________________
Herschel P. Franks, J.
12