When a nolle prosequi order was entered in a shoplifting case, halting the prosecution of the case, the discharge of the action did not qualify as a favorable termination in order to support a later claim of malicious prosecution.
In Smith v. Dillard Tennessee Operating Limited Partnership, No. W2024-010881-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff was charged with shoplifting from the defendant department store. After criminal proceedings began, the State entered an Order for Expungement of Criminal Offender Record because a nolle prosequi had been entered in the case. The shoplifting case was accordingly discharged.
Based on the shoplifting charges, the plaintiff filed a claim for malicious prosecution. The trial court granted summary judgment to defendant, ruling that the plaintiff could not show that the underlying cause of action was terminated in her favor, and the Court of Appeals affirmed.
To successfully claim malicious prosecution, a plaintiff must show “(1) that the defendant instituted a legal proceeding against him or her without probable cause and (2) with malice, and (3) that the legal proceeding terminated in the plaintiff’s favor.” (internal citation and quotation omitted). The issue in this case focused on the third element, a favorable termination.
The Court explained that the Tennessee Supreme Court defines nolle prosequi as “the formal entry of record in which the district attorney general terminates the prosecution of a case.” (internal citation omitted). The Court noted that “there may be many reasons prompting and fully justifying such action by the State in any given case.” (internal citation omitted).
In its analysis, the Court looked to previous Supreme Court cases interpreting the favorable termination element of malicious prosecution claims. Quoting extensively from Mynatt v. National Treasury Employees Union, 669 S.W.3d 741 (Tenn. 2023), the Court reiterated:
We now clarify that the favorable termination standard provided in Himmelfarb and Parrish applies regardless of whether the underlying dismissal involves a criminal or civil action. A plaintiff can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.
(quoting Mynatt).
Applying that reasoning here, the Court wrote that a “nolle prosequi is a discharge of the case without a conviction or acquittal and does not ordinarily bar a subsequent prosecution.” (internal citation omitted). After stating again that there “are many reasons why a prosecutor might decide not to pursue a case,” the Court found that there was nothing in this order that reflected the merits of the case or indicated that the plaintiff was innocent. Accordingly, the nolle prosequi was not a favorable termination for purposes of malicious prosecution, and summary judgment was affirmed.
This opinion contains a good overview of what is required to show a favorable termination in a malicious prosecution case, especially if the underlying case is in criminal court.
This opinion was released 3.5 month after oral arguments.