### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE EDNA J. KELLEY, ET AL 

### . v. JAMES C. TOMLINSON, ET AL 

### . Direct Appeal from the Circuit Court for Davidson County No. 98C-1532 Barbara N. Haynes, Judge

No. M1999-01176-COA-R3-CV - Decided June 16, 2000

The trial court granted summary judgment to the defendants in this malicious prosecution case

. Because we find that the

plaintiffs raised genuine issues of material fact in regard to the existence of probable cause in the antecedent defamation case, we reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded C ANTRELL , P.J., M.S., delivered the opinion of the court, in which K OCH and C AIN , JJ., joined. G. Kline Preston, IV and Lawrence D. Wilson, Nashville, Te n nessee , for th e appe llants , Edna J

. Kelly and Jeanette M. Coke. John E. Herbison, Nashville, Tennessee, for the appellees, James C. Tomlinson and Charles McK elv ey. Darrell G. Townsend, Nashville, Tennessee, for the appellee, Dan R. Alexander.

OPINION I. C HANGES AT C ITY H ALL This malicious prosecution lawsuit was filed after we affirmed

the trial court’s dismissal of the antecedent defa

mati on suit. Tomlinson v. Kelley , 969 S.W.2d 402 (Tenn. Ct. App. 1997). Although we discussed the circumstances that led to the alleged defamation in our earlier opinion, we must recite them ag

ainin order to address the issue of probable cause, which will be dispositive of the current appeal. To avoid confusion, in this section we will refer to the parties by their proper names rather thanas “plaintiffs” or “defendants”, for the plaintiffs in the de

famation case be

came the defendants in the malicious prosecution case, and vice versa.-2-

In July of 1995, the commissioners of the City of Berry Hill were James Tomlinson, Charles McKelvey a

nd Harold

Spray. Mr. McKelvey also serve d as the appointed mayor. Dan Alexander was the ci ty att

orney. A copy of the new sletter of the City of Berry H ill dated August 1, 1995 chronicled

several changes in this line-up. According to the newsletter, Mr. McKelvey announced his resignation as commissioner and mayor on July 10; the appointment of Mr. Tolby McPheron as commissioner

in his place was announced at a senior breakfast on July 11; and Mr. McKelvey

was hiredas City Manager after a special meeting on July 17. The signatures of Tomlinson, Spray and McPheron were on the bottom of the newsletter. Edna Kel ley and Jeannette Coke were long-time

residents of Be

rry Hill who

frequently attendedmeetings of the Ci ty Commission. In February, 1996, the ear lier-published newsletter was brought to their attention. At that time, M s. Kelley ’s son, Cliff Kelley, was a candidate for the commissioner’s seat held by Mr. Tomlinson. Ms. Coke was Mr. Kelley’s campaign treasurer. The newsletter

aroused the inter

est of the two ladies, a

nd they dec

ided to go to City

Hall to look at the minutes of the Board of Commissioners. According to Ms. Kelley, she read the July 10 minutes on this occasion, and they contained no reference to Mr. McKelvey’s resignation. She also claimed that Mr. McKelvey came over to the counter where

she and Ms. Coke we

re reading, a

nd they aske

d him why there w

as no referenc

e to his resignation in th

e minu tes. He looked at the minutes, and responded that it was because he resigned after the meeting was over. Ms. Kelley and Ms. C oke returned to City Hall twice more to look at the minutes. They claim that the first time they were denied access to the minutes. They returned again, and noticed that this time the last paragraph in the minutes did discuss Mr. McKelvey’s resignation. I

t reads in pertinent part a

s follows: There being no further business on the agenda .

. . Commissioner Spray read a letter from Mayor McKelvey anno uncing that he was resign ing as Ma yor of City of Berry Hill effective as of mid-night on the nig ht of July 10, 1995. Upon reading this paragraph, Ms. Kelley exclaimed “The y’ve changed the minutes. We’ve got them now. We just don’ t h ave any proof.” On February 21, Ms. Coke contacted Aissatou Sidime, a reporter for

the Tennessean, an

d told her that she h

ad been refuse

d access to the min

utes, and that someone had altered them. She also told the reporter about the contents of the newsletter. On March 7, 1996, the Tennessean ran an article under Ms. Sidime’s byline with the hea dline “Berry Hill election heats up

witha meeting contr

oversy.” T

he article conta

ined accusations

by Ms. Coke and Ms. Kelley th

at the commissioner

s had held a secr

et meeting in viola

tion of state

law to appoint Mr. McPheron as interim commissio ner, and that the m

inutes had been c

hanged to include Mr. McKelvey’s resignation.-3-

The article noted the contradiction between the news letter announcement of Mr. McPheron’s appointment

on July 11, and the official vote to approve his appointment on August 14. Mr. M cKelvey

was also quoted as

saying “I t’d be a serious of

fense to chang

e these minutes af

te r the y were approved by the sworn board.” II. T HE D EFAMATION S UIT The day the Tennessean article was published, Mr. Tomlinson and Mr . McKelvey

met with Mr. Alexander in Mr. Alexander’s office to discuss what they could do about the activities of Ms. Kelley and Ms. Coke, and they decided to sue for defamation. The following day, Mr. Alexander filed a complaint in the D

avidson County

Circuit Court. The complaint was served on the two ladies after 5:30 p.m. by a uniformed Berry Hill police officer. The allegations of the complaint were that Ms. Coke and Ms. Kelley had “deliberately a nd intentionally

published false and defamatory allegations” against the two city officials of altering the minutes of t he Bo ard’ s Ju ly 10, 1995 m eeting, and of holding a secret meeting to replace Mr. McKelvey with Mr. McPheron. The plaintiffs asked for $100,000 in damage s. Ms. Kelley and

Ms. Coke filed a moti

on for summary judg

ment asserting th

at their comments were protected speech, that they had not acted ma

liciously, and that their comments were not defa mat ory. The trial court granted their

motion on June 18, 1996, and dismissed all cl

aims against them. The commissioners app ealed to this

court, arguing that the defendants knew or should have known that the critical statements they made to the Tennessean reporter were f alse. On appeal, we noted that public officials had

to meet stringen

t requirements in o

rder to prevail o

n a defamation sui

t. See New York Times Co. v. Sullivan , 376 U.S. 254 (1964). Because of the importance of free speech on political matters, the Court has held that “debate on public issues should be uninhibited, robust and wide-open.” 376 U.S. at 270. A public official who feels that he has

been unjustl

y ac cused of unethical or illegal acts must prove by clear and convincing evidence that

his accusers acted with malice: that is, that they knew that their accusations were false, or that they acted in reckless disreg ard as to their truth or falsity. On appeal, we found that the record showed that at the time Ms. Kelley and Ms. Coke spoke to the Tennessean r

eporter, they

had reasonable

grounds for bel

ieving that the in

cumbent city officials had changed the minutes, and that those same officials had decided on Mr. McPher on ’s ap pointmentlong before taking any official action. We ac cordingly affirmed the judgment of th e trial court.-4- III. T HE M ALICIOUS P ROSECUTION S UIT On June 4, 1998, Ms. Coke a nd Ms. Kelley

filed suit for malicious prosecutionand abuse of process, naming Mr. Tomlinson, Mr. McKelvey, and Mr. Alexander as defendants. They later ame nde d th eir com pla int to a dd a cla im f or ci vil con spi racy. The plaintiffs claimed that there had been no legal basis for the defamation suit, that the action was filed with

the improper motive of silencing them, and that they suffered fear, anxiety , and mental and phy

sical injury

as a result

of the lawsuit. Ms. K

elley and Ms

. Coke asked for $10,000 in compensatory damages, and an unspecified amount of punitive damag es. After the trial court dismissed the abuse of process claim, the defendants filed motions for summary judgment on the claim of malicious pro secution. On August 13, 1999, the trial court granted summar

y judgment t

o two of the defen

dants: After consideration of the entire record in this cause, the Cour t finds and concludes that reasonable minds could not differ as to the existence of probable cause for filing of the ant

ecedent c ivil action. The Plainti

ffs have accor

dingly fai led to present a prima facie case that the defamat ion action was file d without probable cause. The Court finds fur ther that the Def

endants Tomlinson and McKelvey were entitl ed, as a mat ter of law, to rely on the advice of their attorney , the Defendant Alexander, that

probable cause

existed for filing of the defamation action. In light of these findings, the Court also concludes that the Plaintiffs have failed to present evidence sufficient to make a prima facie case of ci vil conspiracy among the Defendants to maliciously prosecute a civil action. On August 16, the court also granted summary judgment to Mr. Alexander on all claims. The court rejected subsequent motions by the plaintiffs to be relieved of

the summary

judgments. This appeal followed. IV. T HE A PPEAL The standards for reviewing a summary judgment on appe al are well-known, and were discussed at length in the antecedent case, Tomlinson v. K e lley , 969 S.W.2d 402 (Tenn. Ct. App. 1997). Decisions granting summary judgment are not entitled to a pre sumption of corre ctness on appeal. Bain v. Wells , 936 S.W.2d 618 (Tenn. 1997). Appellate courts view the evidence in the light most favorable to the

non-moving part

y, and will a

ffirm the judgme

nt o n ly if there is no genuine dispute as to material facts, and if the defendants are entitled to judgment as a matter of law. Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). In the present case, there are many fac ts in dispute. The only question is whether

those facts raise a genuine dispute as to the existence of the elements of an action for malicious prosecution. In order to prevail on a malicious prosecution claim, a plaintiff must prove that (1) a p ri or suit or-5-

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 plaintiff's favor

. Roberts v . Federal Express Corp., 842 S.W.2 d 246 (Tenn. Ct. App. 1992). There can be no dispute that the disposition of the defamation suit establishes the third element for malicious prosecution. A. M ALICE The definition of malice for purposes of a malicious prosecution lawsuit is not the same as it is in a defamation case. Any improper motive is sufficient to constitute malice when malicious prosecution is charged. Lawson v. Williamson, 447 S.W.2d 369 (Tenn. 1969). Ill will or personal hatred need not be shown, though these would certainly be sufficie nt to establish malice. Deposition testimony in

the record reveals some possible motives for filing the defamation lawsuit. A city employee related a conv ersation that occurred between herself and Charles McKelvey

just before suit wa

s filed. She stated

that Mr. McKelvey

said that he wanted to scare the ladies so they would

shut up and not cre

ate a lot of disturb

ance. He also sa

id he was going to sue themso they would have to hire a lawye r and pay for

it. A former city commissioner testified that McKelvey

later “. . . told me

that he didn’t c are about the law suit, that it had ser

ved its purpose anyway, that we wer

e just trying to quieten the girls down.” The trial court did not address the question of malice, pr obably because there could be no doubtthat there was sufficient evidence in the record to infer the existence of improper motive on the part of the defendants. The court instead based its decision s olely on a finding of lack of probable cause. B. P ROBABLE C AUSE Appellees argue that it is plain from the record that reasonable m inds c ould not differ that they had probable cause to file the defamation suit. They do not elaborate very much on this bare assertion, but instead rely heavily upon the deposition testimony of attorney Alexander that he thoroughly

investigated the

facts of th e case before

filing suit, and th

at the minutes of the

City Commission could not h ave been changed without his knowledg

e. The app

ellees ch aracter ize arguments

in regard to contradictions between Mr. Alexa nder’s testimony and that of the other deponents as “quibbling.” Appel lees also point out that the requirements of

probable cause

are less string

ent in civi l proceedings th

an in criminal: “. . . less in the way of gr

ounds for belief w

ill be required to

justify a reasonable man in bringing a civ

il, rather than a

criminal suit. Sometimes this is expressed by saying that want of

probable cause must be "very clearly proven" or "very palatable" or that "greater latitude" must be allowed than in a criminalcase. Apparently, what is meant is merely that the instigator need not have the same degree of

certainty as to the facts,-6-

or even the same belief in the soundness of his case, and that he

is justified in bringing a civilaction when he reasona bly believe

s that he has a go

od chance of est

ablishing it to the satisfaction of the court or the jury.” Morat v . State Farm Mutual Auto Insurance Co., 949 S.W.2d 692, 695 (Tenn. Ct. App. 1997) quoting Prosser and Keeton on Torts , 5th Ed. § 120, p. 893. See also Kauffman v. A.H. Robins Co. , 223 Tenn. 515, 523 (Tenn. 1969). While we ackn owledge th is distinction, we mu

st also point out that t

he burden of proo

f is more stringent for a

defamation lawsu

it like the present

one than it would

be for other types

of civil suits. As we stated above, in order for public officials t

o prevail in a def

amation lawsuit, th

ey must prove by clear and convinci ng evid ence that their accusers knew that their allegedly defamatory statements

were false or that they made such statements in reckl ess disre gard as to their truth or fal sit y. See New York Times Co. v. Sullivan , supra. It is not enough to assert (or even to prove) that the accusations are untrue. In view of this heightened burden, a public offici al contemplating a defamation lawsu

it against a citizen must make a thorough investigation of the circumstances behind the publication that offended him, to determine whether the prospective d

efendants had so

me reasonable ba

sis for believing in the truth of the allegedly defamatory statements. See Cohen v. Cook , 462 S.W.2d 502, 506 (Tenn. Ct. App. 1969). In the present case, it

is not completely certain that the commissioners had violated the Open Meetings Law , or that someone ha d changed the mi

nutes of the June 10 me

eting. However

, it is clear to this cou rt that a th orough investigation would have revealed that Ms. Kelley and Ms. Coke had a basis f or so belie ving. Mr. Alexander testified that he did make such an investigation, but contradictions between his testimony and

that of the other d

eponents raise

questions of material fact as to his credibility, as well as to w heth er the purported investigation was in fact adequate. For example, Mr. Alexander testified that Ms. Coke and Ms. Kelley approached him a

t City Hall

and told him that the minutes have been changed, and

he told them they were mistaken. The plaintiffs both denied that they ever had a conversation with Alexander regarding the minutes. Mr. Alexander also claimed to have had a conversation with Clarence Watson, a former city commissioner, in which he explained that if the minutes had been tampered with he “would b e t he first one to raise the red flag.” Mr. Watson’s affidavit states unequivocally that no such conversation ever took place. Mr. M cKelvey and M r. Tomlinson deny that they possess any advanced legal knowledge, and in depending so heavily on the testimony of Mr. Alexander, they set up their second line of defense: that they relied

upon the advice of

their attorney

in filing suit, and

thus that even if

we find there to have been no probable cause, they themselves cannot be he ld liable.-7-

The defense of advice of counsel is available, ho wev er, o nly to defendants who have disclosed to

their attorney all the relevant information that is in their possession, as well as all the information that can be obtainedthrough reasonable diligence. Sullivan v. Young, 678 S.W.2d 906 (Tenn. Ct. App. 1984). In the prese nt case, it appea

rs that McKelvey

and Tomlinson did

notbother to disclose to Mr. Ale

xander vital inform

ation that would ha

ve helped him to determ ine whether there was proba

ble cause for the

defamation suit. For example, Mr. Alexander was not informed of the conversa

tion at City

Hall between the appellants

and Mr. McKelvey, w

h ich set in motion the chain of events that ultimately led the appellants

to ac cuse the commissioners o f changing the

minutes. Without knowl edge of this inform ation, it was easy for Mr. Alexander to believe that the accusation was rec kless; with it, h e might have shown m

ore restraint be

fore advising h

is clients that they

had grounds for

filing suit. Mr. Alexander also tes

tified that he did no

t see the August 1 newsletter until after filing

suit. I t is unclear whether he was at fault for not seeking it out and reading it (the newsletter was mentioned in the Tennesseanstory, which he did read), or whether McKelvey and Tomlinson were at fault for not bringing it to his attention. In any case , the importance of the newsle tter to the question of probable cause cannot be overstat ed, because it fi

rst led Ms. Kelley

and Ms. Coke to believe that

the Board

of Commissioners had violated the open meetings law. There also can be no doubtthat Mr. Tomlinson and Mr. McKelvey had knowledge o

f its contents: not only did Tomlinson sign the newsletter, but there was testimony that McKelvey participated in its preparation. In view of

these facts, it

appears to us that

Mr. McKelvey

and Mr. Tomlinson c

annot avail themselves of the defense of advice of counsel. Since the record of this case contains genuine issues o f material fact a

s to the question of p

robable cause,

summary judg

ment should

not have bee n granted to the defendants. Should the case proceed to trial, the question of probable cause will be for the jury to decide. See Roberts v. Federa l Express Corp ., 842 S.W.2d 246 (Tenn.1992). V. We reverse the jud gment of the tr ial court. Remand this cause to the Circuit Court of Davidson County for

further proceedings consistent with this opinion. Tax the costs on appeal to appellees, James C. Tomlinson, Charles McKelvey and Dan R. Alexander.