Malicious Prosecution

October 4, 2023

Malicious prosecution and abuse of process summary judgment affirmed.

Where plaintiff filed an action for malicious prosecution and abuse of process based on a criminal theft case, summary judgment for defendant was affirmed. A grand jury indicted plaintiff of the theft charges, which created a rebuttable presumption of probable cause for purposes of the malicious prosecution claim, and plaintiff was unable to prove the elements of her abuse of process claim.

In Christmas v. Kington, No. E2022-00699-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2023), plaintiff and defendant had previously been in a romantic relationship. At two different times, defendant filed civil suits against plaintiff based on the theft of jewelry from defendant’s home, but those suits were both voluntarily dismissed. Defendant also called the local sheriff’s office to report the theft of several pieces of jewelry. Defendant informed the detective that plaintiff’s son had called and informed him that plaintiff had stolen and sold several pieces of jewelry, including a men’s Rolex watch. When defendant went to the store where plaintiff allegedly sold the jewelry, he saw the watch and a few other pieces he recognized.

The sheriff’s office investigated the matter and brought charges, and plaintiff was indicted by a grand jury for theft. Defendant did not testify before any court or grand jury and did not provide documents or records to the grand jury. The criminal charges were eventually dismissed by the State, but nothing in the record indicated that the dismissal was on the merits or based on a lack of evidence.

May 12, 2023

Supreme Court addresses standard for favorable termination in a malicious prosecution claim based on a criminal case.

by The Law Offices of John Day, P.C.

In a malicious prosecution case where the underlying case was criminal rather than civil, 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.”

In Mynatt v. National Treasury Employees Union, Chapter 39, — S.W.3d —, No. M2020-01285-SC-R11-CV (Tenn. Oct. 5, 2023), plaintiff filed a malicious prosecution claim based on an underlying criminal case. Plaintiff alleged that after he criticized defendant union, defendant accused him of misusing union funds and caused him to be charged with two state felonies. In the criminal case, the prosecutor retired the charges against plaintiff for one year and never revived them, such that the charges were formally dismissed when the year passed.

Defendants filed a motion to dismiss the malicious prosecution claim, arguing that “plaintiff could not show that the retirement and dismissal constituted a favorable termination on the merits, which is an essential element of a malicious prosecution claim.” The trial court agreed and dismissed the case, but the Court of Appeals reversed dismissal, ruling that “there are outcomes other than acquittal following trial that can constitute a favorable termination and it is plausible that the charges were dismissed due to a lack of evidence.” (internal citation omitted). In this opinion, the Supreme Court ruled that the trial court was correct to dismiss the case.

August 25, 2020

Dismissal based on statute of limitations not a favorable termination for later malicious prosecution claim.

by The Law Offices of John Day, P.C.

When summary judgment in a previous suit was based on the statute of limitations, a malicious prosecution action cannot be based on that previous suit.

In Horizon Trades, Inc. v. Givens, No. M2019-01876-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2020), defendant was the attorney for Shermane Stuart in a previous action wherein Ms. Stuart filed a claim for breach of contract against Horizon Trades. Horizon Trades filed a motion for summary judgment in that action, and it asserted multiple grounds in its motion. The trial court ruled that although plaintiff had purported to file a breach of contract claim, the claim was actually for “conversion and/or damages to her personal property,” and that the three-year statute of limitations actually applied. The trial court accordingly granted Horizon Trades summary judgment based on the previous suit being untimely. In its ruling, the trial court specifically found that there was “no viable breach of contract claim,” but it did state in its order that even if there were a contract claim, the Statute of Frauds would have barred such a claim based on the value of the property at issue.

March 20, 2020

Attorney not liable for advising client to make true police report

by The Law Offices of John Day, P.C.

Where an attorney advised her client in a family law case that her husband’s actions in distributing a video of the client having sex with another man might be criminal and advised the client to make a true report to the police department, the attorney was not liable for any tort.

In Pagliara v. Moses, No. M2018-02188-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2020), husband and wife were married, but at some time before the marriage yet while they were dating, wife “used Ecstasy and engaged in sexual relations” with another man “and videotaped their encounter.” After husband and wife were married, the wife of the other man on the video found the video and forwarded it to husband, along with a photograph of a sexual nature. Husband received this information while he was on a business trip in California, and he proceeded to forward a part of the video as well as the photo “to close friends of him and wife.”

November 22, 2017

Malicious Prosecution Claims – Statute of Limitations

by The Law Offices of John Day, P.C.

A conviction in a criminal case, even if a post-conviction appeal is pending, does not satisfy the element of a “prior action [being] finally terminated in favor of plaintiff” for the purpose of a malicious prosecution claim.

In Moffitt v. McPeake, No. W2016-01706-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2017), plaintiff had been convicted of aggravated assault against the three defendants in a previous criminal case on July 31, 2014. On appeal, his conviction was affirmed in part and reversed in part, and plaintiff pointed out in arguments to the trial court that he had a “pending post-conviction appeal.”

The trial court granted defendants’ motion for summary judgment pursuant to the applicable one-year statute of limitations. The trial court ruled that the limitations period began to run when plaintiff was arrested on May 16, 2013, and that his July 27, 2015 suit was thus untimely. The Court of Appeals rejected this ground for dismissal but affirmed on other grounds.

March 10, 2016

Is a Voluntary Dismissal With Prejudice a “Favorable Termination”

by The Law Offices of John Day, P.C.

A recent Court of Appeals case affirmed a trial court’s ruling that a voluntary dismissal with prejudice does not constitute a “favorable termination” for the purpose of a malicious prosecution claim. In Fit2Race, Inc. v. Pope, No. M2015-00387-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), the underlying claim initially started during a contentious divorce proceeding. The court granting the divorce ruled in its final decree that the wife had been secretly working with other parties to steal business from and destroy the company started by the husband, and the court held that wife was “sanctioned and [] forbidden to oppose [husband’s] claim that she subverted and destroyed [husband’s] business.”

After the divorce, husband seized upon the findings of the judge in the divorce and filed a federal complaint against wife, another business, and the owners of the other business alleging interference with business relations and civil conspiracy. Husband eventually voluntarily dismissed this case with prejudice.

Not contend to leave well enough alone, the other business and its two owners (the defendants in the federal court action) filed this malicious prosecution action against husband and husband’s attorney. The trial court granted summary judgment to husband and his attorney, finding that because the trial court in the initial divorce had found that wife and the parties at issue here had worked together to steal/destroy husband’s business, there was “more than ample cause for filing the subsequent federal complaint in the underlying action.” Further, the trial court held that “a voluntary notice of dismissal with prejudice does not constitute a favorable termination without any discussion of the merits of the claim.” The Court of Appeals affirmed the summary judgment.

December 19, 2015

Merely Providing Affidavit To Employer Cannot Give Rise to Malicious Prosecution Claim

by The Law Offices of John Day, P.C.

In Thompson v. Hamm, No. W2015-00004-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), the Tennessee Court of Appeals addressed the issue of whether an affidavit provided to the City of Memphis as an employer of both plaintiff and defendant was enough to establish that defendant “instituted a wrongful prosecution” of plaintiff, ultimately deciding that it was not in the circumstances at play.

Plaintiff was the maintenance manager at a water treatment plant for the city, and during his time as manager the city allegedly received several complaints that plaintiff discriminated on the basis of race. Defendant gave the city an affidavit detailing instances of racial discrimination by plaintiff. After receiving the affidavit, the City hired an independent firm to investigate the claims, and as a result of the investigation decided to charge plaintiff with violations of city policy. The city held a hearing and ultimately terminated plaintiff. Plaintiff appealed his termination to the Civil Service Commission, who found that there was “tension” between plaintiff and defendant and issued a decision setting aside the termination. The Chancery Court affirmed the Commission, and plaintiff was reinstated to his position.

Based on defendant’s affidavit, plaintiff filed suit for malicious prosecution against defendant. Defendant moved for summary judgment on several grounds, which the trial court granted, rulding that defendant’s “only involvement in the City’s internal investigation was providing the City information regarding Plaintiff’s conduct. Such action on the part of Defendant Hamm does not constitute the initiation of a lawsuit or judicial proceeding against Plaintiff as is required to succeed on a claim for malicious prosecution.” On appeal, plaintiff raised several issues, but the Court only analyzed one in affirming summary judgment, finding it dispositive of the case—defendant’s argument that “his provision of information to the City [was] insufficient to establish that [defendant] instituted a wrongful prosecution[.]”

July 1, 2015

The Probable Cause Defense to Malicious Prosecution Claims

by The Law Offices of John Day, P.C.

A recent Court of Appeals decision serves as a good refresher on the elements and defenses in a malicious prosecution case. In Preston v. Blalock, No. M2014-01739-COA-R3-CV (Tenn. Ct. App. May 29, 2015), tenant’s plastic surgery business had signed a lease to rent landlord’s office suite. Tenant stopped paying rent, and landlord filed a breach of contract claim for rent, build-out costs and attorneys’ fees. Landlord was awarded a default judgment, and tenant eventually paid to satisfy that judgment. Landlord subsequently filed another complaint seeking additional attorneys’ fees. Landlord then nonsuited that complaint but filed again seeking additional rent that he claimed had come due.

While this complaint was pending, tenant filed an abuse of process complaint against landlord. The factual basis for tenant’s complaint was that landlord had filed against tenant personally as a guarantor before filing against the business as the principal, that landlord had filed a document entitled partial satisfaction of judgment when tenant had paid the entire judgment, that landlord had given “false and misleading testimony at depositions,” and that landlord had filed “a multiplicity of claims in order to drive up the amount of attorney’s fees.” The trial court granted summary judgment to landlord in the abuse of process case.

After the abuse of process case was finalized, landlord filed a complaint alleging malicious prosecution against tenant and tenant’s lawyer. He asserted that “defendants filed the abuse of process suit…for an improper purpose and without probable cause in an attempt to gain an advantage in the pending breach of lease litigation[.]” The trial court granted summary judgment to tenant/defendant, and the Court of Appeals affirmed.