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.

Plaintiff later filed this civil action asserting claims for malicious prosecution and abuse of process against defendant. The trial court granted summary judgment to defendant, finding that there was probable cause for plaintiff’s arrest, that plaintiff could not prove an essential element of her malicious prosecution claim, and that plaintiff could not prove the elements of her abuse of process claim. This ruling was affirmed on appeal.

Looking first to the malicious prosecution claim, the Court stated that the elements of such a claim are that “(1) a prior suit or judicial proceeding was instituted without probable cause, (2) defendant brought such prior action with malice, and (3) the prior action was finally terminated in plaintiff’s favor.” (internal citation omitted). First, the Court of Appeals rejected plaintiff’s argument that this was not the type of case for which summary judgment was appropriate. The trial court found that reasonable minds could not differ as to probable cause here, and the Court of Appeals agreed.

Second, the Court pointed out that “a grand jury’s indictment creates a rebuttable presumption that probable cause to institute the criminal proceeding existed unless the indictment was procured by fraud or by a defendant who did not believe in the guilt of the plaintiff.” (internal citation omitted). In this case, plaintiff was indicted by the grand jury, and she failed to show that the indictment was procured by fraud. There was undisputed evidence that not all the missing jewelry had been gifts to plaintiff; that the detective was shown a men’s Rolex watch sold to the jewelry store by plaintiff; that defendant identified the watch as one taken from his home; and that plaintiff’s son had told defendant that plaintiff took jewelry from the home. The Court found that these facts “certainly demonstrate that [defendant] had reasonable grounds for his belief that [plaintiff] was guilty of taking at least one of his watches.” Plaintiff could therefore not show that that the criminal action was initiated without probable cause, and summary judgment was affirmed.

The Court next considered the abuse of process claim. A plaintiff asserting abuse of process must show “(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge.” (internal citation omitted). In this case, the evidence showed that defendant was present at court hearings and questioned the assistant district attorney when the charges were dropped, but was otherwise uninvolved in the criminal process. He never testified or provided any evidence. Based on these facts, the Court found that plaintiff had “failed to adequately explain how this activity constitutes improper use of process,” and it affirmed summary judgment on this claim.

This opinion was released 4.5 months after oral arguments in this case.

Note:  Chapter 1, Section 1; and Chapter 78, Sections 1 and 7 of Day on Torts: Leading Cases in Tennessee Tort Law have been updated to include this decision.

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