Day on Torts
Where a plaintiff continued to pursue a defamation case even after depositions revealed that the allegedly defamatory statements were only made to two of plaintiffs’ friends and the statements did not change their opinion of plaintiff, Rule 11 sanctions against plaintiff were affirmed.
In McMillin v. Realty Executives Associates, Inc., No. E2018-00769-COA-R3-CV (Tenn. Ct. App. April 12, 2019), plaintiff asked two of his friends to contact a realtor and set up a showing of a home that was part of plaintiff’s mother’s estate. During the showing, the realtor stated that utilities had been turned off due to plaintiff removing money from the estate, that the potential buyers might not want to become involved with plaintiff because he had sued several people, that the house had plumbing issues, and that plaintiff had replaced expensive appliances with cheaper ones. Based on these statements, plaintiff brought this pro se defamation suit.
During depositions, it was revealed that the two “potential buyers” were actually friends with plaintiff who had no interest in buying the property, that plaintiff himself had set up the viewing to get information about the condition of the house, and that the man asking to view the home had lied about his occupation to appear to be able to purchase the house. Further, both of the people who viewed the home “stated unequivocally that the statements had no effect” on their opinion of plaintiff. Defendants filed a motion for summary judgment based on plaintiff’s inability to show damages and the fact that the realtor reasonably believed the statements were true when she made them. “Defendants also sought sanctions against Plaintiff for pursuing the claim after depositions revealed the lack of damages and defense counsel notified Plaintiff and requested Plaintiff to nonsuit the case.”
The trial court granted summary judgment on the defamation claim, finding that because the statements had no effect on the people who heard them, plaintiff could not show that he suffered an injury. The trial court also put down a show cause order, giving plaintiff 30 days to show why he should not be sanctioned under Rule 11. The trial court focused largely on an affidavit that plaintiff had filed from one of the two friends that set up the showing. In this affidavit, the friend stated that he was “dissuaded from further considering purchasing the house based on the comments that [realtor] made.” While plaintiff did file a response to the show cause order, the response failed to address the false affidavit. Accordingly, the trial court awarded over $19,000 in sanctions under Rule 11, and the trial judge stated his displeasure with the false affidavit in rather strong terms:
And that is just 100 percent bull. I mean, I don’t even know how to say how false that was. It’s a perpetuation of this fake claim. …I have a real problem with filing a false affidavit. And Plaintiff, you either knew or should have known that that was false, because he never considered purchasing it, and that was true from the get-to.
Plaintiff appealed the trial court’s rulings, but because his notice of appeal was filed more than 30 days after summary judgment was granted, the Court of Appeals refused to review the summary judgment decision. Instead, it only analyzed the propriety of the Rule 11 sanctions, which it affirmed. The Court noted that a trial court “may issue a show cause order upon its own initiative pursuant to Tenn. R. Civ. P. 11.03(b),” and that there was no error with the trial court doing so here. The Court also noted that nowhere in Plaintiff’s response to the show cause order did he address the allegedly false affidavit or the allegation that he “had filed and maintained an action for slander when he either knew or should have known that he suffered no damages and that such a claim was, therefore, without merit.” Sanctions were accordingly affirmed.
This was a pro se case, and the facts as reported in the opinion shed light on why this plaintiff likely could not find a lawyer to help him in this case. This case faced a myriad of problems from the beginning, and plaintiff’s refusal to dismiss when the case was clearly dead lead to a large sanction award against him.