IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 27, 2015 Session

RANDALL THOMPSON v. HERBERT HAMM

Appeal from the Circuit Court for Shelby County

No. CT00470610 D’Army Bailey, Judge

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No. W2015-00004-COA-R3-CV – Filed November 17, 2015

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Plaintiff brought a malicious prosecution action against defendant. Defendant moved for 

summary judgment, which the trial court granted. Discerning no error, we affirm.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which ARNOLD B.

GOLDIN, J., and BRANDON O. GIBSON, J., joined.

T. Edgar Davison, Memphis, Tennessee, for the appellant, Randall Thompson.

John Michael Ryall and Deborah Godwin, Memphis, Tennessee, for the appellee, Herbert 

Hamm.

OPINION

Background

Plaintiff-Appellant Randall Thompson (―Appellant‖) was the Maintenance Manager at 

the City of Memphis South Water Treatment Plant (―the plant‖) for over four years. During 

his tenure as Maintenance Manager, the City allegedly received numerous complaints against 

Appellant concerning racial discrimination against African Americans. In May 2008, 

Defendant-Appellee Herbert Hamm (―Appellee‖) provided the City of Memphis (―City‖) 

with an affidavit describing certain instances of discrimination by Appellant in the hiring 

process at the plant. The allegations against Appellant prompted the City to hire legal counsel 

to conduct an independent fact-finding investigation into the allegations involving racial 
2

discrimination in the hiring process.1 Attorneys from the law firm of Glankler Brown, PLLC, 

(―Glankler Brown‖) conducted several interviews with the plant’s employees, including 

Appellee. Throughout the investigation and subsequent proceedings, Appellant has 

adamantly denied the allegations that he had engaged in discriminatory practices.

As a result of the investigation by Glankler Brown, the City found that it had 

sufficient evidence to charge Appellant with various violations of City policies and work 

rules. The City held pre-disciplinary hearings for Appellant on September 10, 2008 and 

September 14, 2008. Appellant was presented with the affidavit of Appellee at this time and 

denied the allegations. After the hearing, the City ultimately determined that sufficient 

evidence existed to sustain the charges against Appellant. As a result, Appellant was 

terminated on September 18, 2008, from his position with the plant as Maintenance Manager. 

Appellant thereafter appealed his termination to the City’s Civil Service Commission 

(―Commission‖). The Commission conducted two evidentiary hearings during November and 

December 2008. During these hearings, testimony was heard from Appellant, Appellee, and 

multiple co-workers. The co-worker witnesses allegedly denied that Appellant had acted 

discriminatorily against anyone.2Testimony also showed that tension existed between 

Appellant and Appellee. Appellee, however, affirmed the allegations contained in his 

affidavit.

On January 9, 2009, the Commission issued a decision to set aside the termination, 

finding that there was insufficient evidence to sustain the charges against Appellant. The City 

appealed the decision to set aside the termination to the Shelby County Chancery Court. By 

written order entered September 2, 2009, the chancery court affirmed the Commission’s 

decision to set aside the termination. The chancery court’s order provides:

[T]he Commission did not abuse its discretion or act arbitrarily 

or capriciously in finding Mr. Thompson to be more credible 

than Mr. Hamm. The record[3] clearly points to the fact that all 

witnesses other than Herbert Hamm (Mr. Thompson’s accuser) 

had never heard Mr. Thompson make racially derogative 

remarks. The record reflects that Mr. Thompson played a part in 

 

1

The specific date that the law firm was retained to perform the investigation is unclear from the 

record on appeal.

2Appellant asserts that the co-workers testified that Appellant had not discriminated against African 

Americans previously. Appellee does not appear to dispute this fact. However, the record on appeal does not 

include the full transcript of the hearings.

3

The full record from the administrative proceedings is not included in the record on appeal to this 

Court.
3

establishing a committee to help with racial tensions in the Plant 

and that Mr. Thompson also hired African American employees. 

. . . The record reflects that Mr. Hamm had issues with Mr. 

Thompson. Mr. Hamm did not get the promotion he wanted. . . . 

The Court finds that the findings of the [Commission] are 

supported by the weight of the evidence contained in the record.

In affirming the Commission’s decision, the chancery court also concluded that Appellant 

should be immediately reinstated. Appellant was awarded back pay with interest. 

On September 17, 2009, Appellant filed an action against Appellee in the Shelby 

County General Sessions Court. On the civil warrant, he asserted claims of defamation and 

slander. The case was continued on several occasions, and eventually, on September 9, 2010, 

the general sessions judge entered judgment. Although the judgment section of the civil 

warrant is illegible, neither party disputes that judgment was entered in favor of Appellee. On 

September 16, 2010, Appellant filed a notice of appeal to the Circuit Court. He did not file a 

complaint in the Circuit Court at this time.

Appellee moved to dismiss Appellant’s appeal on October 22, 2010 on two separate 

bases: (1) that the affidavit filed by Appellee could not form the basis of a defamation claim, 

and (2) that the statute of limitations had expired by the time Appellant filed the civil 

warrant. Appellant responded to the motion to dismiss on December 9, 2010. The crux of his 

response was a request to amend his complaint to ―clarify the allegations‖ against Appellee. 

On January 4, 2011, without a ruling from the trial court on his request, Appellant filed a 

complaint in the Circuit Court.4In this complaint, Appellant asserted, for the first time, a 

cause of action for malicious prosecution. The complaint omitted the claims for defamation 

and slander, as had been alleged in the civil warrant filed in General Sessions Court.

Appellee moved to dismiss the newly-filed complaint on May 4, 2011, pursuant to 

Rule 12.06 of the Tennessee Rules of Civil Procedure. Appellee argued that Appellant failed 

to state a malicious prosecution claim because Appellee did not institute the administrative 

proceedings against Appellant. The trial court denied this motion via written order entered 

December 11, 2012. The trial court also issued a decision letter dated February 18, 2014.5 On 

 

4Although Appellant requested leave of court to file his complaint, permission from the court was not 

necessary because Appellee had not yet filed a responsive pleading. See Tenn. R. Civ. P. 15.01 (―A party may 

amend the party’s pleadings once as a matter of course at any time before a responsive pleading is served . . . 

.‖). Appellee’s motion to dismiss is not a ―responsive pleading.‖ Adams v. Carter Cnty. Mem’l Hosp., 548 

S.W.2d 307, 309 (Tenn. 1977). 

5

It is unclear the reason for the substantial delay. The trial court’s decision letter, unlike its order, 

contains its reasoning for denying the motion to dismiss. The trial court found that ―how deeply Defendant 

Hamm participated in the administrative case against Plaintiff . . . is an issue of fact to be tried by the [j]ury.‖
4

August 29, 2014, Appellee answered the complaint and generally denied the material 

allegations. 

On October 28, 2014, Appellee filed a motion for summary judgment asserting that 

Appellant could not establish a claim for malicious prosecution for several reasons. First, 

Appellee argued that neither a lawsuit nor judicial proceeding was ever brought against 

Appellant as is required to state a claim for malicious prosecution. Appellee also argued that, 

even assuming a lawsuit or judicial proceeding had occurred, he was not the party who 

initiated it. He also argued that probable cause existed to institute disciplinary proceedings 

against Appellant because the City sustained the violations after an investigation. Finally, 

Appellee again argued that the statute of limitations had expired. Appellee also attached the 

affidavit of Chandell Ryan Carr in support of his motion. Ms. Carr served as the EEO/Labor 

Relations Manager for the City’s Division of Human Resources. She stated that the City had 

received numerous complaints against Appellant alleging discriminatory practices in his job 

selection process. She further asserted that the City indeed hired outside legal counsel to 

investigate these claims and that the City ultimately decided to pursue disciplinary action 

against Appellant. She stated that the conclusion was based on evidence from multiple 

sources, including Appellee’s affidavit. Further, she stated that ―[t]he City’s determination 

that [Appellant] should face disciplinary action was made by management personnel of the 

[City] and was based on the totality of the evidence.‖ 

The trial court granted Appellee’s motion for summary judgment on December 3, 

2014, finding that Appellee’s involvement in the proceedings against Appellant was

insufficient to support a claim of malicious prosecution. It concluded that the City, if anyone, 

was responsible for initiating the proceedings, and Appellant’s involvement was limited to 

providing information to the City. Accordingly, the trial court concluded that Appellee was 

entitled to judgment as a matter of law. Appellant appealed.

Issue

Appellant presents one issue for review: Whether the trial court erred by ruling that 

Appellee was entitled to summary judgment on Appellant’s claim of malicious prosecution 

because Appellant could not state a cause of action.

In addition, Appellee presents one issue for review: Whether Appellant’s claim is 

barred by the applicable statute of limitations.

Standard of Review

Summary judgment is appropriate where: (1) there is no genuine issue with regard to 

the material facts relevant to the claim or defense contained in the motion and (2) the moving 

party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P. 
5

56.04. In cases where the moving party does not bear the burden of proof at trial, the movant 

may obtain summary judgment if it:

(1) Submits affirmative evidence that negates an essential 

element of the nonmoving party’s claim; or

(2) Demonstrates to the court that the nonmoving party’s 

evidence is insufficient to establish an essential element of the 

nonmoving party’s claim.

Tenn. Code Ann. § 20-16-101 (applying to cases filed after July 1, 2011); see also Rye v. 

Women's Care Ctr. of Memphis, MPLLC, --- S.W.3d ---, 2015 WL 6457768, at *22 (Tenn. 

Oct. 26, 2015) (judicially adopting a summary judgment parallel to the statutory version 

contained in Tenn. Code Ann. § 20-16-101). When the moving party has made a properly 

supported motion, the ―burden of production then shifts to the nonmoving party to show that 

a genuine issue of material fact exists.‖ Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 

(Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may 

not simply rest upon the pleadings but must offer proof by affidavits or other discovery 

materials to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the 

nonmoving party ―does not so respond, summary judgment, if appropriate, shall be entered.‖ 

Tenn. R. Civ. P. 56.06.

On appeal, this Court reviews a trial court’s grant of summary judgment de novo with 

no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408, 

412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence in 

the light most favorable to the nonmoving party and resolve all factual inferences in the 

nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim 

v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support 

only one conclusion, then the court’s summary judgment will be upheld because the moving 

party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 

529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Discussion

This appeal requires this Court to examine whether any genuine disputes of material 

fact exist, and if they do not, whether the undisputed facts demonstrate that Appellant can 

proceed with his claim for malicious prosecution. According to the Tennessee Supreme 

Court, to establish a claim for malicious prosecution, a plaintiff must prove the following 

essential elements: ―(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.‖ Roberts v. Fed. Express Corp., 842 S.W.2d 246, 247–
6

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)).6

Appellant asserts that the trial court erred when it granted summary judgment in favor 

of Appellee for several reasons. First, Appellant claims that the termination proceeding 

constituted a proceeding sufficient to sustain a claim for malicious prosecution. In his brief, 

he relies heavily on his assumption that, ―[a]s a result of the Affidavit submitted by 

[Appellee], [Appellant] was investigated and terminated.‖ Further, he asserts that the 

termination proceeding was brought with malice and without probable cause. Finally, he 

notes that the proceedings were terminated in his favor when the chancery court overturned 

the Commission’s decision and reinstated his employment. 

The trial court, as stated above, disagreed with Appellant’s contentions. The trial court 

ultimately concluded that Appellee was entitled to judgment as a matter of law on 

Appellant’s claim for malicious prosecution:

. . . because the undisputed facts do not establish that Defendant 

Hamm initiated any type of lawsuit or judicial proceeding 

against Plaintiff. The facts demonstrate that Plaintiff’s claims 

arise from an internal termination decision made by the City of 

Memphis. Defendant Hamm’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. Furthermore, the Civil 

Service proceedings involved in Plaintiff’s case were initiated 

by Plaintiff, not Defendant Hamm.

Accordingly, the trial court granted the motion for summary judgment in favor of Appellee 

and dismissed Appellant’s cause of action.

Appellee asserts that Appellant cannot establish a claim for malicious prosecution 

because the proceedings that resulted in Appellant’s termination do not constitute judicial or 

quasi-judicial proceedings of a kind to support a claim for malicious prosecution; that 

Appellee did not institute the proceedings against Appellant; that there was sufficient 

probable cause to support the allegations; and that Appellee did not act with malice. We 

begin with Appellee’s argument that his provision of information to the City is insufficient to 

 

6 While claims of malicious prosecution were historically limited to the institution of criminal 

proceedings, it is now generally recognized that the malicious institution of civil proceedings may be the basis 

for a claim. Kauffman v. A.H. Robins Co., 448 S.W.2d 400 (Tenn. 1969). 
7

establish that Appellee instituted a wrongful prosecution, as our resolution of this issue is 

dispositive of this appeal. Generally,

One who causes a third person to institute a wrongful 

prosecution may be held liable in damages to the party injured to 

the same extent as if he or she had directly instituted the 

proceedings. Thus, a person is liable for malicious prosecution 

even though he or she did not personally sign the complaint that 

initiates the proceeding or did not file a direct charge.

However, to render one liable for a malicious prosecution begun 

by another, it must appear that he or she was the proximate and 

efficient cause of putting the law in motion; some affirmative 

act in connection with the prosecution must be shown. A private 

person can be said to have initiated a criminal proceeding, thus 

satisfying that element of a malicious prosecution claim, if he or 

she has insisted that the plaintiff should be prosecuted, that is, if 

he or she has brought pressure of any kind to bear upon the 

public officer’s decision to commence the prosecution.

52 Am. Jur. 2d Malicious Prosecution § 25 (footnotes omitted); see also 52 Am. Jur. 2d 

Malicious Prosecution § 9 (noting that principles surrounding the tort of malicious 

prosecution generally apply equally to claims based on civil and criminal proceedings). 

However, this Court has held ―that before one can be liable for malicious prosecution, he 

must do something more than merely give information.‖ Wykle v. Valley Fidelity Bank & 

Trust Co., 658 S.W.2d 96, 99 (Tenn. Ct. App. 1983), perm. app. denied (Tenn. Aug. 1, 

1983). Further, the ―giving of information or the making of the accusation . . . does not 

constitute a procurement of the proceedings which the third person initiates thereon if it is 

left to the uncontrolled choice of the third person to bring the proceedings or not as he may 

see fit.‖ Cohen v. Ferguson, 336 S.W.2d 949, 954 (Tenn. Ct. App. 1959) (citing 

Restatement (First) of Torts § 653, cmt. b (1938)). The person sought to be found liable 

must ―take[] some active part in instigating or encouraging the prosecution.‖ Wykle, 658 

S.W.2d at 98 (quoting Prosser on Torts 836 (4th ed.)). 

Appellee argues that the Tennessee case of Wykle v. Valley Fidelity Bank & Trust 

Co. is analogous to the case-at-bar and that it demonstrates that his involvement is 

insufficient to sustain Appellant’s malicious prosecution claim. In Wykle, Ivey Whittaker 

purchased an Oldsmobile Cutlass from a dealership under a conditional sales contract. 

Wykle, 658 S.W.2d at 97. The contract was assigned to a bank, which acquired a lien on the 

vehicle. The lien, however, was never noted on the title. Mr. Whittaker eventually traded the 

Oldsmobile to plaintiff, who eventually sold it to a bona fide purchaser. Several months later, 
8

a representative of the dealership, Lester Fox, contacted plaintiff concerning the indebtedness 

owed on the Oldsmobile, and plaintiff contacted Mr. Whittaker. Mr. Whittaker assured 

plaintiff that it was an unsecured personal debt. Eventually, Lester Fox’s son, an attorney, 

told one of the bank’s vice presidents that plaintiff was aware of the indebtedness on the 

Oldsmobile when he sold it. After an investigation by the bank’s attorney, a warrant was 

issued for plaintiff for violation of Tennessee Code Annotated Section 39-3-927, which 

concerns the disposal of encumbered property. Although Mr. Fox testified at plaintiff’s 

preliminary hearing, the criminal case against plaintiff was ultimately dismissed for lack of 

probable cause and, although presented to the Grand Jury, no indictment was returned. 

The plaintiff subsequently brought a malicious prosecution action against the bank, 

one of its vice presidents, and Mr. Fox. Id. at 96. The trial court dismissed the case upon the 

defendants’ motion for summary judgment. On appeal, we stated that we were ―[mindful] 

that Mr. Fox’s [dealership] assigned the contract with recourse and that he obviously had an 

interest in collecting the note,‖ but he is not liable ―’merely because of his approval . . ., nor 

for appearing as a witness against the accused, even [if] his testimony is perjured . . . .’‖ Id. at

98 (quoting Prosser on Torts 836 (4th ed.)). In affirming the grant of summary judgment in 

favor of Mr. Fox, we concluded that he merely provided information, which was insufficient 

to support a malicious prosecution claim. Id. at 99.7

In this case, as stated above, both parties agree that Appellee provided an affidavit to 

the City alleging Appellant had a history of discriminating against African Americans. 

However, the parties do not agree on whether Appellee’s affidavit and provision of 

information during the investigation of Appellant are sufficient to provide the legal basis for

the institution of proceedings against Appellant. Our review of the Appellee’s statement of 

undisputed facts and Appellant’s responses thereto demonstrates that Appellee’s involvement 

was indeed limited to providing information. Subsequently, the City made the independent 

decision to hire Glankler Brown to investigate the claims in the affidavit and interview 

Appellant’s coworkers. 

Even after reviewing the facts in the light most favorable to Appellant—and despite 

Appellant’s attempts to overstate the involvement of Appellee8—the record supports the 

 

7

For reasons not relevant to this appeal, we reversed and remanded the grant of summary judgment in 

favor of the remaining defendants.

8

For example, in Appellant’s response to Appellee’s statement of undisputed facts, he states:

[Undisputed Fact of Appellee No. 11:] Defendant Hamm’s only 

involvement in the investigative process was providing information to the 

City.

RESPONSE: Disputed; Hamm provided a false, malicious affidavit 
9

conclusion that Appellee merely provided information and the City independently decided 

whether to pursue further action against Appellant. The record is devoid of any allegations 

that Appellee urged or encouraged the City to investigate Appellant. As evidenced by the 

investigation and multiple hearings, the City, and not Appellee, had control over the decision 

of whether to pursue or abandon the charges against Appellant. See Pera v. Kroger Co., 674 

S.W.2d 715, 723–24 (Tenn. 1984) (―In order for liability to be imposed under this principle, 

however, the prosecuting witness must have some control over the prosecution. It appears to 

be well settled that where the instigator has no control over the case once prosecution has 

begun, his participation will not subject him to liability.‖) As stated in Pera, ―[c]ases in 

which liability has been imposed . . . usually involve conduct such as urging a prosecutor to 

proceed against his own advice or judgment . . . .‖ Id. at 723. That is simply not the case 

here. Although the record is clear that Appellee made allegations against Appellant and 

provided the City with information, the record is devoid of any other action taken by 

Appellee that could be interpreted as ―urging‖ or ―encouraging‖ the proceedings against 

Appellant. Id. at 723, 724. As evidenced by the affidavit provided by Ms. Carr, the City 

conducted its own investigation and made the decision as to whether to proceed against 

Appellant. To this end, Appellant does not dispute that the City ultimately controlled the 

choice of whether to institute proceedings against Appellant. See Smith v. Kwik Fuel Ctr., 

No. E2005-00741-COA-R3CV, 2006 WL 770469, at *6 (Tenn. Ct. App. Mar. 27, 2006) 

(considering whether the defendant ―exerted control over the decision to prosecute‖). 

Accordingly, we must conclude that Appellee’s mere provision of information to the City, 

without more, is insufficient to render him liable for malicious prosecution against 

Appellant.9

 

intended to get both [Appellant’s co-worker] and [Appellant] terminated. 

Testimony in the Civil Service hearing [showed] that Hamm desired 

[Appellant’s co-worker’s] job and there was animosity towards him and 

[Appellant].

While we acknowledge that Appellant’s assertions of malice are prevalent in the record, they are 

simply insufficient to refute the fact that Appellee indeed did only provide information.

9

In addition, although Appellant denies the allegations contained in the affidavit, his denial is 

immaterial. The law is clear that the provision of information is insufficient to support a claim for malicious 

prosecution, whether the information is truthful or false. Ryerson v. Amer. Sur. Co. of NY, 373 S.W.2d 436, 

438 (Tenn. 1963) (―The plaintiff on the trial may deem it necessary to prove that certain statements made in the 

first trial were false in order to help make out an element of his action, e.g., malice or lack of probable cause; 

but the false statements would only be evidence of the element sought to be shown. They would not be the 

gravamen of the action.‖); Millsaps v. Millsaps, No. 159, 1989 WL 44840, at *2 (Tenn. Ct. App. May 3, 1989) 

(―Averring that allegations in the initial complaint are false and without basis in fact is merely an attempt to 

show lack of probable cause.‖).
10

Still, Appellant asserts that Appellee can be held liable because the ―Affidavit 

submitted by Hamm was the key factor in Thompson’s termination and the City’s decision.‖ 

Respectfully, we similarly find this argument unpersuasive. In Hatfield v. Cleveland Bank & 

Trust Co., plaintiff sued the defendant for malicious prosecution claiming that the defendant 

had sought a warrant from a police officer and urged the prosecution to commence. No. 

03A01-9506-CV-00209, 1995 WL 621003, at *3 (Tenn. Ct. App. Oct. 24, 1995). The police 

officer swore out the warrant without ―any independent investigation of the facts related to 

him by [the defendant].‖ Id. at *2. On appeal, we concluded that the trial court erred when it 

granted defendant’s motion for a directed verdict at trial because one could conclude that the 

defendant likely knew, based on her prior dealings with that police officer, that he would 

likely swear out the warrant without further investigation. Id. at 3. 

On the contrary, in the case-at-bar, the City conducted an independent investigation 

before pursuing further action against Appellant. The investigation by Glanker Brown 

ultimately prompted disciplinary action against Appellant, and the City held a civil service 

hearing wherein, we presume from the information in the record, that several witnesses 

testified, including Appellee, Appellant, and multiple co-workers. Although the City only 

found Appellee to be credible and discredited the other three witnesses, it cannot be 

overemphasized that the record supports the conclusion that the City, not Appellee, 

ultimately made the decision to pursue discipline against Appellant, even if the information 

provided by Appellee was a ―key factor,‖ as contended by Appellant. Accordingly, we must 

conclude that the undisputed facts do not support Appellant’s claim for malicious 

prosecution.

Appellant, however, contends that the situation in this case is highly analogous to the 

Tennessee Supreme Court’s decision in Kaufmann v. A.H. Robins Co., 448 S.W.2d 400 

(Tenn. 1969). Respectfully, we disagree. In Kaufmann, the defendant previously filed a 

complaint against plaintiff with the State of Tennessee Board of Pharmacy, charging 

―plaintiff with substituting a medical preparation for defendant’s product . . . .‖ Kaufmann, 

448 S.W.2d at 401. Ultimately, the trial court dismissed the lawsuit, and on appeal, the 

Supreme Court held that plaintiff did state a cause of action against the defendant. However, 

Kaufmann is readily distinguishable from the instant case for several reasons. To begin, the 

primary focus of the Supreme Court’s decision in Kaufmann was whether the proceeding 

before the State of Tennessee Board of Pharmacy constituted a judicial or quasi-judicial 

proceeding sufficient to satisfy that element of a malicious prosecution claim, rather than the 

question of whether Appellee actually instituted the proceedings against Appellant. Further, 

regarding the facts of Kaufmann, the defendant in that case filed ―a formal complaint with 

the Board in which it stated that it stood ready to attempt to prove the alleged violation of the 

pharmacy laws.‖ Id. at 404–05. Thus, it appears that the defendant in Kaufmann assumed a 

prosecutorial role, whereas Appellee in this case simply provided information to the City, 
11

assuming a role more akin to a witness. Last, our research reveals that Kaufmann has never 

been cited by any Tennessee court for the proposition that either testifying or providing 

information to authorities who then conduct an independent investigation to confirm the 

allegations is alone sufficient to support a malicious prosecution claim. Thus, Appellant’s 

attempt to argue that Kaufmann should dictate our analysis of this case is, respectfully, 

unavailing.

Finally, we are cognizant that the Supreme Court has also opined on certain policy 

considerations surrounding malicious prosecution claims: ―Malicious prosecution claims 

have the potential to create a chilling effect on the right to access the courts. The threat of a 

malicious prosecution action may reduce the public’s willingness to resort to the court system 

for settlement of disputes.‖ Himmelfarb v. Allain, 380 S.W.3d 35, 41 (Tenn. 2012). We 

decline to extend the bounds of a malicious prosecution claim such that would potentially 

deter employees from making reports similar to Appellee’s because they are fearful of a 

retributory malicious prosecution action. 

We accordingly affirm the trial court’s decision to grant summary judgment in favor 

of Appellee. Based on this conclusion, all other issues are pretermitted.

Conclusion

The judgment of the Shelby County Circuit Court is affirmed, and this cause is 

remanded for all further proceedings as may be necessary and are consistent with this 

Opinion. Costs of this appeal are taxed to Appellant Randall Thompson and his surety.

_________________________________

J. STEVEN STAFFORD, JUDGE