### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Briefs Februar y 25, 2002 Se ssion

ERICA R. SLA UGHTER v. ROSE TTA RO WE
Appeal from the Circuit Court for Hamilton County No. 99C1839 Samuel H. Payne, Judge

FILED MARCH 18, 2002

No. E2001-00840-COA-R3-CV

Erica R. Slaughter (“Slaughter”) sued Rosetta Rowe (“Rowe”) for slander

and harassment after an allegedphysical altercation precipitated by Slaughter’s affa ir with Rowe’s husband. After the physical altercation, Slaughter filed assault charges against Rowe leading to her

arrest. The assa

ult charge was eventually dismissed. Rowe filed a counter-claim for malicious prosecu

tion. Each party testified at trial to her version of the events. The Trial Court concluded neither party carried he r burden o f proof o n her cla im and dismi ssed the e

ntire law suit. Rowe

appeals , and we a

ffirm.

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

of the Circuit C ourt Aff

irmed; C ase Rem anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Lloyd A. Levitt, Chattanooga, Tennessee, for the Appellant Rosetta Rowe. Erica R. Slaughter, Appellee, pro se
.-2- OPINION Background Slaughter filed a pro se complaint agains t Rowe for slander and hara ssment. Slaughter alleged Rowe went to her home and accused Slaughter of having a sexual relation ship with Rowe’s husband. Slaughter claimed she was physically assaulted by Row e and h er life was threatened. Slaughter also claimed Rowe later went to Slaughter’s place of business a nd used profanity and once again threatened he r life.

Rowe secure d counse l and filed an answer, denying the pertinent allegations containedwithin the complain t. Not to be outdone, Rowe filed a counter-claim against Slaughter, claiming Slaughter swore out a false complaint against Row e, t hereby resulting in Rowe being falsely arrested for assault. Rowe claimed Slaughter acted ma liciously a

nd without p

robable cause, resulting in Rowe’s false arrest.

After obtaining counsel, Slaughter filed an answer to the counter-cla im denying the p ertinent all egations. The case was set for trial on October 18, 2000, but was continued after Slaughter’s counsel withdr ew from her representation. After Slaughter wa s unable to secure new counsel, she proceeded pro se at the trial on February 28, 2001.

Slaughter testifie d she saw

Tony Jaso n Phillips (“ Phillips) for over a year. When the affair began, she did not know Phillips was married to Rowe. Slaughter learned Phillips was married when she star

ted rec eiving te lephone c alls from Rowe who told Slaughter she was havi ng an aff air withRowe’s husband. With regard to the incident on July 4, 1999, Slaughter stated she was talking to Phillips and told him to get off of her front porch. According to Slaughter, Rowe came onto the porch and took two swings at Slaughter. Rowe scratched Slaughter’s arm and tried to grab he r hair. Slaughter then called 911 and told the police officer she wante d to press charges. Eight days later, she filed the nece ssary pa

perwor k to have R

owe arr ested fo r assaul t.
Rowe testifie d she mar

ried Philli ps in 1995, but they w ere sep arated at the time of trial. Rowe cla

imed Phillip s continuously had a ffairs s ince the star t of the marriage. One of the people w ith whom Phil lips had a n affai r was Slaughter. Row e owns an d works a t Hair Language Styling Salon and Day Spa. She has op erated this business for 10 years and has many faithful clients. Rowe stated on July 4, 1999, she received a telephone call on her husba nd’s cell phone. The caller was Slaughter, wh o asked to speak with Phillips. Rowe told h er not to call anymore, to which Slaughter allegedly responded that as long as she was sleeping with Phillips, she woul d call whenever she wanted. About an hour later, Rowe and P hi llips went

over to Sla

ughter’ s home in order to “straighten” things out. Rowe testified she (i.e. Rowe) never got out of the ca r. In August of 1999, a po lice off

icer ca me to Rowe ’s busine ss and arr est ed her f

or assault. This ha

ppened in front of Rowe’s customers. The assault charge late r was dismissed.-3- After hearing the two witnesses, the Trial Court addressed both the com plaint and counter-complaint

by stating: “[I]n order to prove slander or assault or malic ious prose cution or false arrest ... you have to do it by the preponderance of the evidence or the greater weight of the evidence, and I don’t think either one of you has carried the proof.” Accordingly, the Trial Court dismissed both claims. Rowe appeals, claiming the Trial Court erred when it concluded she failed to prove her malicious prosecution claim by a preponderanc e of the evidence.
Discussion

A review o f finding s of fac t by a trial c ourt is de novo upon the record of the tria l court, ac co mp an ie d b y a presum ptio n of corr

ectness , unless th

e preponderanc e of the e

vidence is otherwise. Tenn. Rule

App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review of questions of law is de novo, without a presumption of correctness. See Nelso n v. W al-Mart St

ores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

The Trial Court found Rowe failed to prove her malicious prosecution claim by a prepo nderance o f the evidence. In making this determination, the Trial Court considered the live testimony of Rowe and Slaughter. The Trial Court made a determin ation with

regard to whether the assault actually occurr ed and Sla

ughter’ s motivatio n in having Row e arre sted. “U nlike this C ourt, the trial cou

rt obser ved the ma

nner and demeano r of the w itnesses a nd was in the best p osition to evaluat e their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (T enn. Ct. A pp. 2000). The trial court’s determinations regarding cre dibility are accorded consider able deference by this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3 d 560, 56 3 (Ten n. 200 1). “‘[ A]ppella te court s will not re -evalua te a tria l judge’s assessme

nt of witne ss credibi lity absent clear and convincing evidence to the c ontrary.’” Wells v. Tennessee B d. of Rege nts , 9 S.W.3d 779, 783 (Tenn. 1999).

Based on our review of the record, including t he fact s detailed above, we do not believe the Trial Court committed any revers ible err or with its purely factual based determination that Rowe failed to prove her malicious prosecution claim by a preponde rance of the evidence.
Conclusion

The judgment o f the Tri al Court is affirme d, and this cause is remanded to the Trial Courtfor such further proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs below. The costs on appeal are assesse d against

the Appellant, Rosetta Rowe, and her surety.

___________________________________ D. MICHAEL SWINEY, JUDGE