By Daniel A. Horwitz:
Malicious prosecution is a civil tort claim that plaintiffs can bring against defendants who unsuccessfully initiated prior legal proceedings against them. “In order to establish the essential elements of malicious prosecution” claim that arises from a civil proceeding, “a plaintiff must prove that (1) a prior suit or judicial proceeding was instituted without probable cause, (2) [the] defendant brought such prior action with malice, and (3) the prior action was finally terminated in [the] plaintiff’s favor.”[1] Thus, in theory, malicious prosecutions claims may be available to a party whenever they prevail in a legal proceeding that was initiated against them. In practice, however, defendants who are sued for malicious prosecution have several powerful defenses available to them that often make defending against malicious prosecution claims a simple matter.
People can be sued for malicious prosecution based on most forms of legal proceedings that do not go their way. For example, people can be sued for malicious prosecution for filing an unsuccessful civil lawsuit.[2] They can also be sued for malicious prosecution for initiating an unsuccessful administrative complaint to a regulatory agency.[3] Prompting or maintaining an unsuccessful criminal prosecution can result in a malicious prosecution lawsuit as well,[4] although a criminal investigation that is not followed by a subsequent prosecution does not qualify.[5]
Despite the theoretical availability of malicious prosecution claims following virtually all legal proceedings, though, establishing the tort’s underlying elements and overcoming each of the (many) defenses and immunities that are available is another matter. Tennessee’s courts have also instructed that there is “a heavy burden of proof on the plaintiff in malicious prosecution actions in establishing malice and lack of probable cause[,]”[6] because Tennessee public policy dictates that “the reporting of valid complaints, if supported by probable cause to believe they are true, should not and will not be inhibited.”[7]
Element #1: Probable Cause
For purposes of a malicious prosecution claim, “[p]robable cause exists where the party that instituted the underlying proceedings had a reasonable belief in the existence of facts supporting his or her claim and a reasonable belief that those facts made out a legally valid claim.”[8] Further, “[t]he reasonableness of the party’s belief is an objective determination made in light of the facts and circumstances at the time the underlying proceedings were initiated.”[9] Thus, evidence that comes to light only after a legal proceeding has been initiated is irrelevant to whether probable cause existed in the first instance. In the same vein, “[t]ermination of the prior proceeding in Plaintiff’s favor has no bearing on whether probable cause existed at the time prosecution was initiated, and, where relevant, the jury shall be specifically so instructed.”[10]
Moreover, as relevant in many malicious prosecution cases that arise out of unsuccessful civil lawsuits, “[t]he defendant in a malicious prosecution lawsuit may establish the existence of probable cause by demonstrating that he or she relied on the advice of counsel in initiating the underlying proceedings.”[11] Of note, in addition to advice provided by privately retained counsel, “[t]he district attorney general is counsel whose advice can constitute a defense to a malicious prosecution action” as well.[12] “To establish probable cause through reliance on the advice of counsel, the defendant must prove three elements: (1) that the attorney’s advice was sought in good faith, (2) that the defendant disclosed all material facts relating to the case in his possession and all facts that could have been ascertained by reasonable diligence, and (3) that the case was commenced pursuant to the attorney’s advice.”[13] Critically, “If the elements of advice of counsel have been established, the fact that the attorney’s advice was unsound or erroneous is immaterial and does not defeat the defense.”[14]
Additionally, absent fraud or express malice, a previous judicial determination of probable cause generally establishes—by itself—that probable cause to initiate the proceeding existed[15] (unsurprisingly, a judgment in favor of the original plaintiff is generally conclusive as to probable cause as well[16]). Sometimes referred to as the “interim adverse judgment rule,”[17] this restriction essentially ensures that if a previous court determined that a legal proceeding should move forward against someone based on the evidence presented, then a subsequent malicious prosecution claim is barred. This rule frequently operates to foreclose malicious prosecution claims based on criminal proceedings that have been indicted by a grand jury, for example, which is a routine occurrence. Specifically, Tennessee’s courts have held, “an indictment by a grand jury equates to a finding of probable cause,”[18] and thus, “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.”[19]
The interim adverse judgment rule does not apply when a person maintains a proceeding after learning that it is baseless, however. Specifically, Tennessee’s courts have explained, “even though one has probable cause to initiate criminal charges, there can be liability for the malicious continuation of a criminal proceeding.”[20] Even then, though, “the private person must take an active part in continuing or procuring the continuation of criminal proceedings” in order to be liable in a subsequent malicious prosecution lawsuit.[21]
Element #2: Malice
The second element of a malicious prosecution claim that a plaintiff must establish to prevail is that the “defendant brought [a] prior action with malice[.]”[22] To prove malice, a plaintiff must “demonstrate[] an improper motive.”[23] Further, Tennessee’s courts have explained:
“The absence of probable cause raises a rebuttable presumption of malice. Kerney v. Aetna Cas. & Sur. Co., 648 S.W.2d 247, 252 (Tenn. Ct. App. 1982). Malice may be inferred from the absence of probable cause, or from want of reasonable grounds for prosecution as the circumstances appeared to the prosecutor or as they would have appeared to a person of ordinary circumspection and diligence. Perry v. Sharber, 803 S.W.2d 223, 225 (Tenn. Ct. App. 1990); Peoples Protective Life Ins. Co. v. Neuhoff, 56 Tenn. App. 346, 407 S.W.2d 190 (1966). Ill will or personal hatred need not be shown. Kelley v. Tomlinson, 46 S.W.3d 742, 746 (Tenn. Ct. App. 2000). Any improper motive is sufficient to constitute malice when malicious prosecution is charged. Lawson v. Wilkinson, 60 Tenn. App. 406, 447 S.W.2d 369 (Tenn. Ct. App. 1969).”[24]
As with probable cause, however, there is also “a heavy burden of proof on the plaintiff in malicious prosecution actions in establishing malice . . . .”, because Tennessee’s courts have made clear that “the reporting of valid complaints, if supported by probable cause to believe they are true, should not and will not be inhibited.”[25]
Element #3: Prior Termination in the Plaintiff’s Favor
The third and final element of a malicious prosecution claim—that “the prior action was finally terminated in [the] plaintiff’s favor”[26]—is also deceptively difficult to establish in many cases. “When a criminal case concludes with a judgment of acquittal or a civil case ends with a judgment of no liability against the defendant after a trial on the merits, such a judgment is almost always deemed final and favorable to the defendant for malicious prosecution purposes.”[27] Where other outcomes result, however, whether a prior proceeding terminated in the Plaintiff’s favor for purposes of a subsequent malicious prosecution claim is far murkier, due in part to conflicting guidance arising from an out-of-date Tennessee Supreme Court decision that has not yet been expressly overruled.[28]
Despite some previous confusion on the matter, the Tennessee Supreme Court has made clear that “a judgment that terminates a lawsuit in favor of one of the parties must address the merits of the suit rather than terminating the suit on procedural or technical grounds.”[29] As such, a previous termination based on—for example—a voluntary non-suit without prejudice[30] or even with prejudice,[31] a settlement,[32] and other non-merits resolutions[33] all preclude a subsequent malicious prosecution claim.
Defenses to Malicious Prosecution
Even in the rare case in which a plaintiff can satisfy all three elements of a malicious prosecution claim, several defenses are available that may nonetheless preclude liability, some of which are set forth below.
First, malicious prosecution claims are subject to a short statute of limitations in Tennessee: Just one year.[34] Of note, however, “an action for malicious prosecution cannot be maintained until the termination of the original action in the plaintiff’s favor, and the cause of action does not accrue until that point.”[35] The statute of limitations also is “not tolled by the period for appeal.”[36]
Second, virtually all malicious prosecution lawsuits are subject to the heightened protections available under the Tennessee Public Participation Act (TPPA)—Tennessee’s new anti-SLAPP statute—because malicious prosecution claims almost necessarily arise from a defendant’s “exercise of the right to petition.” Consequently, as courts in other jurisdictions have noted, anti-SLAPP statutes like the TPPA “potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch.”[37]
Third, all malicious prosecution lawsuits—again nearly without exception—are subject to the protections of the Tennessee Anti-SLAPP Act of 1997. Decades ago, the General Assembly enacted the Tennessee Anti-SLAPP Act of 1997 “to provide protection for individuals who make good faith reports of wrongdoing to appropriate governmental bodies.”[38] The statute recognizes that “[i]nformation provided by citizens concerning potential misdeeds is vital to effective law enforcement and the efficient operation of government.”[39] Additionally, in enacting the Tennessee Anti-SLAPP Act of 1997, the General Assembly determined
“that the threat of a civil action for damages in the form of a “strategic lawsuit against political participation” (SLAPP), and the possibility of considerable legal costs, can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. SLAPP suits can effectively punish concerned citizens for exercising the constitutional right to speak and petition the government for redress of grievances.”[40]
With respect to the immunity afforded by the Tennessee Anti-SLAPP Act of 1997, Tennessee Code Annotated § 4-21-1003(a) additionally provides that subject to the strictures of § 4-21-1003(b), which lays out the relevant mental state required to qualify for immunity under the Tennessee Anti-SLAPP Act of 1997:
“Any person who in furtherance of such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue communicates information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency shall be immune from civil liability on claims based upon the communication to the agency.”
Fourth, in cases involving reports of criminal misconduct, an additional conditional privilege—either the public interest privilege, the common interest privilege, or both—will frequently be available. Because “[t]he interests of the public in preventing crime and punishing criminals outweigh the interest of any plaintiff concerning statements of accusation,” as long as an accusation is made in good faith and without express malice, statements made to law enforcement are protected by the conditional “public interest privilege.”[41] Under the public interest privilege, a publication is privileged from liability
“if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.”[42]
Separately, “Tennessee courts have recognized a common interest privilege as [another] type of conditional privilege.”[43] More specifically:
“Our Supreme Court has described the communications covered by a conditional privilege as follows:
‘Qualified privilege extends to all communications made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. . . . The rule announced is necessary in order that full and unrestricted communication concerning a matter in which the parties have an interest or a duty may be had. It is grounded in public policy as well as reason.’”[44]
Given all of these barriers—the difficulty of establishing the elements of malicious prosecution in the first place, and the many available defenses, including immunities, that apply to malicious prosecution claims even when liability could otherwise be established—few malicious prosecution claims are successful. Indeed, many of them result in expensive consequences for the plaintiffs who file them. As such, although defending against a malicious prosecution lawsuit competently requires significant expertise, most defendants who are sued for malicious prosecution can rest (comparatively) comfortably, assured in the knowledge that most such claims are unlikely to be successful.
Daniel Horwitz is a free speech lawyer who represents clients across Tennessee. If you would like to purchase a consultation from him, you can do using the form below.
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[1] Roberts v. Fed. Exp. Corp., 842 S.W.2d 246, 247–48 (Tenn. 1992) (citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn.1992); Lewis v. Allen, 698 S.W.2d 58, 59 (Tenn.1985)). The elements of a malicious prosecution claim based on a terminated criminal proceeding are slightly different. In particular, with respect to such claims,
[i]t is settled law in this jurisdiction that there are four essential elements in a malicious prosecution case arising from an arrest for an alleged criminal act. These elements are (1) the defendant instituted a criminal prosecution against the plaintiff; (2) the criminal prosecution was terminated in favor of the plaintiff; (3) the defendants lacked probable cause to institute the proceeding, and (4) the defendant acted maliciously or for some reason other than to bring the plaintiff to justice.
Cannon v. Peninsula Hosp., No. E2003-00200-COA-R3-CV, 2003 WL 22335087, at *1 (Tenn. Ct. App. Sept. 25, 2003) (citations omitted), app. denied (Tenn. Mar. 22, 2004). See also Sewell v. Par Cable, Inc., No. 87-266-II, 1988 WL 112915, at *2 (Tenn. Ct. App. Oct. 26, 1988), no app. filed; Davis v. Beckham, No. 2, 1989 WL 67197, at *1 (Tenn. Ct. App. June 19, 1989), app. denied (Tenn. Sept. 11, 1989).
[2] See, e.g., Preston v. Blalock, No. M2014-01739-COA-R3-CV, 2015 WL 3455384, at *1 (Tenn. Ct. App. May 29, 2015).
[3] See, e.g., Kauffman v. A. H. Robins Co., 448 S.W.2d 400, 403 (1969) (“It is our view that the ‘prior judicial proceeding’ need not be conducted in a ‘court’ in the strict technical and legal sense; but that certain administrative proceedings are at least ‘quasi-judicial’ to the extent that they may be the basis for a malicious prosecution action, provided all the requisite elements of such an action are both alleged and proved.”); Lewis v. Allen, 698 S.W.2d 58, 60 (Tenn. 1985) (“[A]ny administrative tribunal or body duly established to conduct investigations or investigatory hearings and to make adjudicatory findings that may adversely affect legally protected interests of persons subject to its jurisdiction will satisfy the first element of a malicious prosecution action.”).
[4] Wykle v. Valley Fid. Bank & Tr. Co., 658 S.W.2d 96, 98 (Tenn. Ct. App. 1983) (citing Prosser on Torts, 4th Ed., P. 836); Hatfield v. Cleveland Bank & Tr. Co., No. 03A01-9506-CV-00209, 1995 WL 621003, at *3 (Tenn. Ct. App. Oct. 24, 1995).
[5] Pagliara v. Moses, No. M201802188COAR3CV, 2020 WL 838482, at *5 (Tenn. Ct. App. Feb. 20, 2020) (“A criminal investigation by law enforcement is neither a judicial proceeding nor a quasi-judicial administrative proceeding with the authority ‘to make adjudicatory findings that may adversely affect legally protected interests of persons subject to its jurisdiction.’ See Lewis, 698 S.W.2d at 60. A criminal investigation by law enforcement, without a subsequent prosecution, does not have an adjudicatory function.”).
[6] Kauffman, 448 S.W.2d at 404 (citing Lipscomb v. Shofner, 33 S.W. 818 (Tenn. 1896)).
[7] Id. See also Himmelfarb v. Allain, 380 S.W.3d 35, 41 (Tenn. 2012) (“The threat of a malicious prosecution action may reduce the public’s willingness to resort to the court system for settlement of disputes. We decline to adopt a rule that would deter litigants with potentially valid claims from filing those claims because they are fearful of a subsequent malicious prosecution action.”) (internal citation omitted).
[8] Preston, 2015 WL 3455384, at *4.
[9] Id. (emphasis added) (citing Roberts, 842 S.W.2d at 248).
[10] Roberts, 842 S.W.2d at 249.
[11] Preston, 2015 WL 3455384, at *5 (citing Sullivan, 678 S.W.2d at 911). See also Cooper v. Flemming, 84 S.W. 801, 802 (1904) (stating that the purpose of the advice of counsel defense is to “establish the existence of probable cause”).
[12] See Spicer v. Thompson, No. M2002-03110-COA-R3-CV, 2004 WL 1531431, at *25 (Tenn. Ct. App. July 7, 2004) (citing Cooper, 84 S.W. 801), perm. to app. denied (Tenn. Dec. 20, 2004).
[13] Preston, 2015 WL 3455384, at *5 (citing Abernethy v. Brandt, 120 S.W.3d 310, 314 (Tenn.Ct.App.2002) (in turn citing Cooper, 84 S.W. at 802)).
[14] Preston, 2015 WL 3455384, at *5.
[15] See, e.g., Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550, at *5 (Tenn. Ct. App. Mar. 31, 2010) (“Regarding the malicious prosecution claim, an indictment by a grand jury equates to a finding of probable cause.” (citing Parks v. City of Chattanooga, No. 1:02-CV-116, 2003 WL 23717092, at *4 (E.D. Tenn. Dec. 15, 2003), aff’d, 121 F. App’x 123 (6th Cir. 2005))), no app. filed; Gordon v. Tractor Supply Co., No. M201501049COAR3CV, 2016 WL 3349024, at *10 (Tenn. Ct. App. June 8, 2016) (“[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.”), no. app. filed.
[16] Christian, 833 S.W.2d at 74 (“a judgment in favor of the original plaintiff is conclusive of probable cause, unless procured by fraud.”).
[17] Plumley, 164 Cal. App. 4th at 1053 (“This presumption—referred to by some authorities as the ‘interim adverse judgment’ rule—is subject to an exception where the underlying victory was obtained by fraud or perjury.”).
[18] See, e.g., Crowe, 2010 WL 1241550, at *5 (“Regarding the malicious prosecution claim, an indictment by a grand jury equates to a finding of probable cause.” (citing Parks, 2003 WL 23717092, at *4)). See also Bovat v. Nissan N. Am., No. M2013-00592-COA-R3CV, 2013 WL 6021458, at *3 (Tenn. Ct. App. Nov. 8, 2013) (“The Williamson County Grand Jury independently issued the indictment of stalking. An indictment by a grand jury equates to a finding of probable cause.”) (citing Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008–02744–COA–R3–CV, 2010 WL 1241550, at *5 (Tenn.Ct.App. Mar.31, 2010); see Parks v. City of Chattanooga, No. 1:02–CV–116, 2003 WL 23717092, at *4 (E.D.Tenn. Dec.15, 2003) (citing State v. Hudson, 487 S.W.2d 672, 674 (Tenn.Crim.App.1972))).
[19] Gordon, 2016 WL 3349024, at *10
[20] Pera v. Kroger Co., 674 S.W.2d 715, 722 (Tenn.1984).
[21] Bovat v. Nissan N. Am., No. M2013-00592-COA-R3CV, 2013 WL 6021458, at *3 (Tenn. Ct. App. Nov. 8, 2013).
[22] Preston, 2015 WL 3455384, at *4.
[23] Id. (citing Wright Med. Tech, 135 S.W.3d at 582).
[24] Brown v. Bushnell, No. M201701124COAR3CV, 2018 WL 2447049, at *2 (Tenn. Ct. App. May 31, 2018), appeal denied (Sept. 14, 2018)
[25] Kauffman, 448 S.W.2d at 404 (citing Lipscomb, 33 S.W. 818). See also Himmelfarb, 380 S.W.3d at 41 (“The threat of a malicious prosecution action may reduce the public’s willingness to resort to the court system for settlement of disputes. We decline to adopt a rule that would deter litigants with potentially valid claims from filing those claims because they are fearful of a subsequent malicious prosecution action.”) (citation omitted).
[26] Roberts, 842 S.W.2d at 248.
[27] Meeks v. Gasaway, No. M2012-02083-COA-R3CV, 2013 WL 6908942, at *4 (Tenn. Ct. App. Dec. 30, 2013) (citing Christian v. Lapidus, 833 S.W.2d at 74).
[28] Compare Christian, 833 S.W.2d at 74(“we are persuaded, and now hold, that abandonment or withdrawal of an allegedly malicious prosecution is sufficient to establish a final and favorable termination so long as such abandonment or withdrawal was not accompanied by a compromise or settlement, or accomplished in order to refile the action in another forum.”) (emphasis added), with Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012) (“Pursuant to Tennessee Rule of Civil Procedure 41.01(2), a voluntary dismissal is an adjudication on the merits of the case only if the order states that it is an adjudication on the merits, or if the plaintiff has twice previously voluntarily dismissed actions based on or including the same claim.”) (emphasis added).
[29] Himmelfarb v. Allain, 380 S.W.3d 35, 38 (Tenn. 2012) (emphasis added) (citing Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn.2005)).
[30] Id. at 40 (“we conclude that a voluntary nonsuit without prejudice is not a favorable termination for purposes of a malicious prosecution claim.”).
[31] Fit2Race, Inc. v. Pope, No. M201500387COAR3CV, 2016 WL 373313, at *5 (Tenn. Ct. App. Jan. 29, 2016) (“We conclude that the Himmelfarb Court’s rationale applies equally whether a case is dismissed with or without prejudice.”).
[32] Meeks v. Gasaway, No. M2012-02083-COA-R3CV, 2013 WL 6908942, at *6 (Tenn. Ct. App. Dec. 30, 2013) (“This holding excluding termination by compromise and settlement as a favorable termination was a restatement of the rule long applied by a line of prior Tennessee cases, that a party that settled a claim was precluded from filing a later action for malicious prosecution based on that same claim.” (citing Foshee v. Southern Finance & Thrift Corp., 967 S.W.2d 817, 819 (Tenn.Ct.App.1997); Landers v. Kroger Co., 539 S.W.2d 130, 133 (Tenn.Ct.App.1976); Martin v. Wahl, 66 S.W.2d 608 (Tenn.Ct.App.1933); Bowman v. Breeden, 1988 WL 136640 (Tenn.Ct.App. Dec. 20, 1988)).
[33] Roberts v. Champs-Elysees, Inc., No. M200801577COAR3CV, 2009 WL 1507670, at *5 (Tenn. Ct. App. May 28, 2009) (“the termination of an action in favor of a party, sufficient to sustain a subsequent malicious prosecution action brought by that party, must be more than a mere procedural disposition of the action, but must in some manner “reflect on the merits” of the action.”).
[34] Selker v. Savory, No. W2001-00823-COA-R3CV, 2002 WL 1905312, at *2 (Tenn. Ct. App. Aug. 13, 2002) (“Section 28-3-104(a) states that claims for malicious prosecution ‘shall be commenced within one (1) year after the cause of action accrued.’”).
[35] Gray v. 26th Jud. Drug Task Force, No. 02A01–9609–CV–00218, 1997 WL 379141, at *2 (Tenn. Ct. App. July 8, 1997) (citing Dunn v. State of Tenn., 697 F.2d 121, 127 (6th Cir. 1982)). See also Moffitt v. McPeake, No. W201601706COAR3CV, 2017 WL 4513568, at *2 (Tenn. Ct. App. Oct. 10, 2017).
[36] Selker, 2002 WL 1905312, at *3.
[37] Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 737, 741 (Cal. 2003).
[38] Tenn. Code Ann. § 4-21-1002(a).
[39] Id.
[40] Tenn. Code Ann. § 4-21-1002(b).
[41] Pate, 959 S.W.2d at 576.
[42] Id. (quoting Restatement (Second) of Torts § 598 (1977)).
[43] See McGuffey v. Belmont Weekday School, No. M2019- 01413-COA-R3-CV, 2020 WL 2754896, at *15 (Tenn. Ct. App. May 27, 2020).
[44] Id. (citing S. Ice Co. v. Black, 189 S.W. 861, 863 (Tenn. 1916)). See also Trotter v. Grand Lodge F. & A.M. of Tenn., No. E2005-00416-COA-R3-CV, 2006 WL 538946, at *7 (Tenn. Ct. App. Mar. 6, 2006); Pate, 959 S.W.2d at 576.