# FILED

Novemb er 14, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

KITSIE LEE HENDRIX, ) ) Plaintiff /Appella nt, ) Shelby Law No. 45801 T.D.

) vs. ) ) JAMES S. COX & ASSOCIATES, ) Appeal No. 02A01-9510-CV-00233 JAMES S. COX, RUSSELL FOWLER, ) SCOTT F. M

AY, and KEN

NETH ) OWEN KING, ) ) Defend ants/Appe

llees. )

APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE WYETH CHAN DLER, JUDGE For the Defendant/Appellee, For the Defendant/Appellee, Kenneth Owen King : Scott F. May : Alan R. Str

ain Scott F. May Memphis, Tennessee Memphis, Tennessee For the Defendants/Appellees , For the Plaintiff/Appellant : James S. Cox & Associates, James S. Cox and Russell Fowler: Duncan E . Ragsda le Memphis, Tennessee Hal Gerber Lewi e R. Po lk , III Memphis, Tennessee

AFFI RMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

DAV ID R. F ARM ER, J.OPINION

This is a malicious prosecu

tion case . In the su

it underlying the ma

licious pr osecutio n claim, the trial court ruled in a manner favorable to the Appe llees, and the trial court’s ruling was reversed

on appeal by this Court. In the subsequent malicious pro se cution action, the trial court granted summary judgment in favor of the Defendant/App ellees. Bas ed on the trial court’s ruling in the underlying lawsuit, we find that the trial court in this case properly granted summary judgment, and theref ore aff irm. In 1990 , Appellee Kenneth Owen Kin g (“King ”) and A ppellant Kitsie Le e Hendr

ix (“Hendrix”) were in the process of getting a divorce. Hendrix eventually retained Appellee James S. Cox (“Cox” ) to rep lace her original attorneys in the divorce action. Appe llee Scott F. May (“May”) represented King. In December, 1990, after repre senting Hend rix for approxim ately four months, Co x withdrew as her divorce attorney. Hendrix then tempora rily retained

her previous attorneys. Cox then sued Hendrix for unpa id attorneys’ fees. He was represented by his law partner, Appellee Russell Fowler (“Fowler”). On Janua

r y 28, 1991, Cox and He ndrix agr eed to a c onsent jud

gment awa

rding him $23,017.16. At the time, King and Hendrix had a marital residence loca t ed at 811 Sweetbr

iar, in Memphis, Tennessee (“Sweetbriar”). T he property was owned as tenants by the entirety. Cox filed to levy execution upon Hendrix’ interest in Sweetbriar in satisfaction of the consent judgment. On February 19, 1991, a

fter a hearing i n which both Cox and Hendrix were represente d and in which oral arguments were heard, the Chancer y Court ordered that Hendrix’ interest in Sweetbriar be sold. That same day, Cox filed to garnish Hendrix’ acco un t at National Bank of Commerce, which containedfunds totaling $1,368.95. On March 7, 1991, the bank answered that the garnishment had been accomplished. The sale of Hendrix’ Sweetbriar intere st occurred on March 14, 1991. Hendrix did not appear or bid at the sale, and Cox bought her interest for $3,500. On April8, 1991, Cox filed a Motion to Confirm Sale, and to Divest and Vest Title. He sent

a letter to May to the

effec t that King ’s intere sts w ould be better protected if King supported the motion. May advised King that he should do so, and King agreed. On April 17, 19 91, Hendrix hired Stevan Black (“Black”) to represe nt her. The next day, the hearing on Cox’ motion was held. That morning, May filed a Petition of Co-owner to Confirm Sale and D ivest

and Vest Title. Hendrix appeared in court with Black. When May handed Black2

a copy of his petition, Black requ ested a cont inuance in order to read the petition and prepar e a response. In order to avoid a continuance, May withdrew the petition. Black stated that he might calleither May or King as witnesses during the hearing, and consequently they were excluded from the courtroom. They were not called as witnesses a nd left after the hearing was over. During the hear

ing, Black

opposed c onfirmat

ion of the saleon the bas is that no nulla bona return had been made on Hendrix’ personalty before Cox levied execution on her re alty, as required by T ennessee Code Annotated § 26-3-101. Fowler, repre senting Cox, argued that it was now too lateto object

to the sale . Black re sponded th at his ar gument would have been premature earlier because case law held that land an d personalty can be levied on at the same time so long as the personalty is sold first. The court responded:

THE COURT : I’m fam

iliar with that statu te. But I th

ink the ide a behind i

t was that you could d o it at the sam e time but if you had it all at one time then you exhaust the personalty before you went on the land. That was the idea behind it. So, I’m fami liar with i

t, very f amiliar w ith it. The court overruled the objection and confirmed the sale. Hendrix appealed the decision. This Court ruled that it was a “requirement that the sheriff’s return indicate no personal property is to be found in hi s county be

fore re alty can be executed upon.” James S. Cox & Assocs. v . King , No. 020A1-9109-CH-00213, 1992 WL 58498, at *2 (Tenn. App. Mar. 27, 1992). Because no such return had been made, this Court reversed the trial court’s order to sell Hendrix’ interest in Sweetbriar and the order conf irming that sale. Id. at *2-3. Before this Court issued its decision, Hendr ix and King entered into a marital dissolution agreement

and their divorce became final. Cox’ judgmentagainst Hendrix was paid by funds from King and from Hendrix’ bond for a premature ly-filed redemption suit. Subsequently, Hendrix

filed this lawsuit for malicious prosecution and outrageous conduct against the law firm of James S. Cox & Associates and individually against Cox, Fowler, May, and King (“Defendant/Appellees”). He ndrix alleged that they had maliciously and without probable

cause levied execution on Hendrix’ interest in Sweetbr

iar when they knew

that they could not d

o so without first acquiring a nulla bona return. Hendrix asserted that May and King acted

in furtherance of the malicious prosecution by supporting Cox’ motion to confirm the sale of Sweetbriar. The de fendant s in the mal icious pr osecutio n action m

oved for dismissal o

r for su mmar y judgment. After a hearing, the trial court denied summary judgment on the malicious prosecution3

issue but granted summary judgment on the charge of outrageous conduc t. The de fendant s subseque ntly moved the

court to r

econside r its denia

l of summar

y ju d gment on malicious prosecution. After

another hearing, the trial court granted the def endants summary judgment on the allegations of malicious prosecution. In its order, the court found:

From the plea

dings, af fidavits, and depo sitions filed in this cause and the entire record , includin g briefs of all p arties, the Court is of the opinion that in the prior civil proceeding in the case of Cox v. Hendrix the defenda

nts had pr

obable cause to undertake or participate in the civil proce edings against the plaintiff. The Court further finds that at the hearing on the petition of the defendant Cox to confirm the Clerk and Master sale (April 18, 1991) Chancellor Aaron Brown, in considering said petition, announced to the parties that he was familiar with the law pertaining to execution and ruled on the said petition based on his understanding of the law and the facts. This Court is of the opinion that the parties ( the defe ndants herein) had a right to rely on the state

ment and r

uling of sa

id Chance

llor: that said ruling is conclusive that

there was probable cause to bring said civil proceeding, and said ruling was not procured by fraud. As to the defendant King only, the Court further finds tha t said def endant in good faith sought the advice of an attorney before par ticipatin g in the ci vil proceeding against the plaintiff. The Court further find s that the defendant King made a full, fair and complete disclosure to his attorney of the pertinent

materia l facts of which he had knowl edge tending to pro ve the ci vil allegations against the plaintiff, and thereafter said defendant acted upon the advice of his attorney and in the belief of the plaintiff’s liability. From this decis ion, Hend

rix now a ppeals. On appea

l, Hendr ix argues that there were genuine issues of mater ial fact which should have p

reclude d the tria

l court’sgrant of

summary ju dgment. A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd v. Ha ll , 847 S.W.2 d 208, 211 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence i n favor o f the nonm oving par ty, allow a

ll reason able inf

erence s in favor

of that pa rty, and discard all countervailing evidence. Id. at 210-11 . Summary j udgment is only appropr iatewhen the

facts a nd the leg al concl

usions dra

wn from th

e facts reasona

bly permit

only

one conclusion. Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law

are involved, there is no presumption of correctness regarding a trial c ourt's grant of summary judgment. Id. Therefore, our review of the tr ial court’s grant

of summar

y judgment

is de novo on the record before this Court. Id. In order for a plaintiff to prevail in an action for malicious prosecution, he must prove that1 Roberts only overruled Memphis Gayoso Gas to the extent that it held that the

determination of the reasonableness of a def endant’s actions in relation to the question of probable cause, once the facts ha d been found by the jury, was to be determined by the court. Roberts , 842 S.W.2d at 249. 4 (1) the defendant ini tiated a previous suit or judicial proceeding without probable cause, (2) the defendant acted w ith malice in bringing the suit or proceeding, and (3) the earlier suit or proceeding endedin a result which favored the plaintiff in the malicious prosecution action. Lantroop v. Moreland , 849 S.W.2d 793, 797 ( Tenn. Ap p. 1992). “Probab le cause is the linchpin of malicious prosecution.” Carter v. B aker’s Fo od Rite Store , 787 S.W.2d 4, 6 (Te n n. App. 19 89). Prob able

cause is established when there e xists “such facts and circumstances sufficient to excite in a

reasona ble mind the be lief that the accused is guilty of the crime charged.” Roberts v. Federal Express Corp. , 842 S.W.2 d 246, 248 (Tenn. 199 2). Furthe rmore, “ [p]roba

ble caus e is t o b e determinedsolely from an objective examination of the surrounding facts and circumstances.” Id. In this malicious prosecution case, the trial court granted summary judgment to t h e Defendant/Appellees in this case solely on the basis that probable cause existed for the decision to levy executi on on Hend

rix’ inte rest in Sweetbriar . This find ing was based on the fa ct that the Chancellor

who ordered and confirmed the sale conside red the appl icable law during the confirmation hearing and ruled in Cox’ favor. The trial court found that this initial ruling in Cox’ favor created a presumption of probable cause. Probable cause in a malicious prosecution action was considered in Memphis Gayoso Gas Co. v. Williamson , 56 Tenn. 314 (1872), overruled on other grounds by Roberts v. Federal Express Corp. , 842 S.W.2d 246, 249 (Tenn. 1992). 1 In the un derl ying suit, in Memphis Gay oso , the defenda nts in the malicious prosecution case had initially been success ful in

obtaining an injunction and in having it made pe

rmanent . However, the lower court’s ruling was re versed when an opposing party appealed to the United States Supreme Court. Id. at 323-24. In Memphis Gay oso , the Tennessee Supreme Cou rt foun d that “the great weight of authority may be regarded as having established the rule that the judgment of a court of competent jurisdiction, in favor of the plaintiff below, after r

eversa l in a higher

court, is to be taken

as prima faci e evidence of probable cause.” Id. at 323. Such evidence can only be rebutted by a showing that the judgment was procured through fraud. See id. at 323-24, 340. See also Christian v. L apidus , 833 S.W.2d 71, 74 (Tenn. 1992) (“.

. . a judgment in favor of the original plaintiff is conclusive of probable cause, unle ss procured by5

fraud.”). In addition, an a nalogous i s sue is discussed in Hall v. Hodge , C.A. No. 215, 1990 WL 131446 (Tenn. A

pp. Sept. 1 4, 1990) in

which the

plaintiff Hall filed a malicious prosecu tion claim against an attorney. Hall alleged that, in the underlying suit, the attorney had filed an action without making a reasonable inquiry into the facts and legal basesfor that suit. The underlying suit was nonsuited, but Hall sought sanctions against the a tto rney for allegedly violating Rule 11 of the Tennessee Rules of Civil Procedure. The trial court in the underlying suit had ruled ag ainst Hal l in his application for sanctions. Id. at *2. This Court found:

In deciding the Rule 11 motion in the underlying case, the tri al court was required to conside

r the issue

of whether the c omplaint in the un derlying case was filed by the parties and the attorney after ma king rea sonable

inquiry a nd was we

llgroundedin fact and warranted by existing law or an extension thereof. The trial court found this issue in the af

firmativ e. This co nclusively precludes any finding that the underlying suit was filed without probable cause and with malice. Id. at *3. Thus a judicial finding in favor of th e plaintiff in the underlying suit is evidence that probable cause e xisted to bring that s uit, even if the de fendant

finally pr evails. Other jurisdictions have also ruled that a judgment for a plaintiff, even if reversed on appeal, is evidence of

probable cause, rebuttable only upon a showing that the first judgment was procured through fraud. See Berge r v. North Am . Co. for Life & Health Ins. , 694 F.2d 23 3, 235-36 (11th Cir. 198 2); Visco v. Fi

rst Nat’l Bank , 415 P.2d 90 2, 906 (Ar iz. Ct. App . 1966); Goldstein v. Sabella , 88 So. 2d 910, 9 11-12 (Fla . 1956); Colquitt v. Network Rental, Inc. , 393 S.E.2d 28, 30 (Ga. Ct. App. 1990 ); Keefe v

. Aluminum Co. of

Am. , 519 N.E.2d 955, 956 (Ill. App. Ct. 1988); Laughlin v. St. Louis Union Trust Co. , 50 S.W.2d 92, 93 (Mo. 1932). In the unpub lished case Brannon v. Py le , No. 03A01-9506-CV-00199, 1995 WL 571885 (Tenn. App. Sept. 29, 1995), this Court considered whether the presumption of probable c ause created by an initial favorable determination should be “conclusive” or “ prima facie.” The conclusi ve presu

mption wasdescrib ed as follows: (1) The convic tion, although reversed on appeal, is conclusive evidence of the existence of probable cause, unless obtained by f ra ud, perju ry or othe r corru pt means. Brannon at *5. The prima facie presumption was also described: (2) The overt

urned c onviction

is prima faci e evidence, creating a presumption of probable cause, which the plaintiff may rebut by providing com petent and convinci

n g evidenc e which c learly o vercome s it. Id. The Brannon court acknowledged that the “conclusive presumption” wa s the ma jority rule.6

Neverth eless, it adopted the minority view, that a fa vorable initial ru ling cre ates only a prima f acie presumption of probable cause which may be overcome by “competent and convincing evidence.” Id. In this case , we nee d not rea ch the iss ue of whether

the pres umption of

probable cause is conclusive or prima facie, because Hendr ix has not presented proof sufficient to overcome the presumption under either rule. Here, the question of law at issue was argued before the trial court by counsel for both parties. The facts were f ully presented to the trial court, including the fact that

no nulla bona return had been made. Hendrix’ attorney argued the correct law, that in the absenc e of a nulla bona return, no levy co uld be mad

e on the r ealty. Th e issue wa s specif

ically addressed by the trial court, with a ruling favorable to the Defendant/Appellees. The only evidence to re but the presumpt

ion of pro bable cause is the eventual reversal of the trial c ourt’s decision by this Court. In and of itself, a reversal by this Court is insufficient to overcome the presumption under e ither standard; otherwis e, every decision reversed by this Court could form the basis for a malicious prosecu tion claim

. Therefore, the evidence wa s insufficient for a trier of fact to f ind that He

ndrix had satisfied an essential element of her malicious prosecution clai m, lack of probable cause, and the trial court properly granted summary judgment in favor of the De fendant/Appellees. The decision of the trial court is affirmed. Costs are assessed against Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

DAVID R. FARMER, J.