1

FILED

January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

RESIDENTS AGAINST INDUSTRIAL ) C/A NO. 03A01-9703-CV-00102

LANDFILL EXPANSION, INC. (RAILE),)

PERRY RUSSELL, DON BEAL, BETTY )

BEAL, GARY LONG and JUDY LONG, )

 )

Plaintiffs, )

 )

and )

 )

DIANNA WILLIAMS, )

 ) APPEAL AS OF RIGHT FROM THE

Plaintiff-Appellant, ) McMINN COUNTY CIRCUIT COURT

 )

 )

 )

v. )

 )

 )

 )

DIVERSIFIED SYSTEMS, INC. and )

WILLIAM T. ALT, )

 ) HONORABLE JOHN B. HAGLER, JR.,

Defendants-Appellees. ) JUDGE

For Appellant For Appellee William T. Alt

GARY A. DAVIS ELIZABETH G. ALT

Knoxville, Tennessee Chattanooga, Tennessee

For Appellee Diversified

 Systems, Inc.

NO APPEARANCE

O P I N I O N

VACATED AND REMANDED Susano, J.
1

For ease of reference, Diversified and Alt will be collectively

referred to as “the defendants.”

2

The individual plaintiffs are Perry Russell, Don Beal, Betty Beal, Gary

Long, Judy Long and the appellant, Dianna Williams.

2

The trial court granted the defendants, Diversified

Systems, Inc. (“Diversified”) and its attorney, William T. Alt

(“Alt”)1, summary judgment on the complaint for malicious

prosecution and abuse of process filed by the plaintiffs,

Residents Against Industrial Landfill Expansion, Inc. (“RAILE”)

and six individuals2 (collectively, “the plaintiffs”). Dianna

Williams (“Williams”) is the only plaintiff who has appealed. 

She presents the following questions for our review:

1. Did the trial court err in granting

summary judgment in favor of Diversified and

Alt?

2. Did the trial court err in failing to

continue Diversified’s and Alt’s motions for

summary judgment in order to allow further

discovery?

I. Facts

The events leading to this litigation began in 1990,

when Diversified applied to the Tennessee Department of

Environment and Conservation for a permit to expand a landfill

near Athens, Tennessee, which it had operated since approximately

1981. Diversified’s application precipitated the incorporation

of RAILE by several area residents concerned with the landfill’s

safety and environmental impact. The appellant Williams was not

involved in the initial formation of RAILE.
3

This is the landfill at which Diversified proposed its expansion.

3

Members of RAILE, not including Williams, subsequently

participated in a public hearing regarding the proposed landfill

expansion and submitted written comments on the subject. They

also appeared before the McMinn County Commission, seeking a

resolution opposing the expansion of the landfill. During these

appearances, members of RAILE made various statements regarding

prior contamination problems at the landfill and the suitability

of the proposed expansion.

While Williams first became involved with RAILE in

1992, her initial participation was limited to opposing an

incinerator that had been proposed by a company other than

Diversified. In her sworn affidavit, Williams states as follows:

Prior to the time that Diversified sued me

for $13.2 million in March 1993, I had not

participated in any public hearings or McMinn

County Commission meetings concerning the

Mine Road Landfill3. I had not made any

statements concerning the landfill to

government officials or to the press.

I did attend approximately three RAILE

meetings at which the Mine Road Landfill was

discussed and also attended a public hearing

concerning the proposed Mine Road Landfill

expansion in August 1993. I did not speak

about my concerns regarding the landfill

expansion at the public hearing in August

1993 because of the $13.2 million lawsuit

that [Diversified] had filed against me. 

This was the extent of my involvement with

RAILE concerning the Mine Road Landfill.

In June, 1991, prior to Williams’ initial involvement

with RAILE, that organization filed suit against Diversified in

the United States District Court for the Eastern District of
4

See Residents Against Industrial Landfill Expansion v. Diversified

Systems, Inc., 804 F.Supp. 1036 (E.D.Tenn. 1992).

4

Tennessee. RAILE’s suit was an effort to remedy the discharge of

pollutants from the Mine Road Landfill into two area streams. 

The District Court held that Diversified was required to obtain a

discharge permit.4 Pursuant to a February 10, 1993, settlement

agreement in the federal court action, Diversified agreed to

apply for a discharge permit, to comply with pollution

limitations in the meantime, and to pay the fees and expenses of

RAILE’s attorneys.

Approximately one month after the settlement agreement

was executed, Diversified filed suit in state court against RAILE

and nine named individuals, including Williams. Three “John Doe”

defendants were also sued. Diversified was represented by Alt in

that action. The complaint, which was signed by Alt, sought

$13.2 million in compensatory and punitive damages for alleged

wrongful interference with Diversified’s business relations. 

Specifically, Diversified alleged that RAILE and the individual

defendants had made false and malicious statements to state

officials and to the general public in an effort to defeat its

application for a landfill expansion permit, and had sought to

destroy Diversified’s existing landfill operation by influencing

others to cease doing business and/or breach contracts with

Diversified. Significantly, the complaint failed to contain any

specific allegations regarding any statements or actions by

Williams.
5

See Diversified Systems, Inc. v. Residents Against Industrial Landfill

Expansion, Inc., et al., C/A No. 03A01-9310-CV-00348, 1994 WL 66651

(Tenn.App., E.S., filed March 7, 1994, Sanders, J.).

5

On May 24, 1993, the trial court dismissed

Diversified’s complaint for failure to state a claim upon which

relief could be granted. The trial court denied Diversified’s

motion to amend its complaint, and Diversified appealed to this

court. We reversed the trial court’s decision and remanded the

case to the trial court.5 Thereafter, on May 18, 1994,

Diversified, without amending its complaint, served the

defendants with a notice of voluntary dismissal.

The plaintiffs, including the appellant Williams, filed

the instant action on June 23, 1994, alleging that Diversified

and its attorney, Alt, were guilty of malicious prosecution and

abuse of process as a result of the lawsuit filed by Diversified

against RAILE and the various individuals. In addition to the

general allegations supporting their causes of action, the

plaintiffs alleged that Diversified and Alt filed the prior suit

in order to punish, harass, and silence RAILE, its members, and

other concerned citizens of McMinn County.

Following the filing of the instant malicious

prosecution action, the plaintiffs served Diversified and Alt

with interrogatories and a request for production of documents. 

Diversified and Alt responded by moving for a protective order

and a stay of discovery. Williams then filed a motion to compel. 

The trial court stayed all discovery, except for the depositions

of the plaintiffs and three of Diversified’s current and former

officers. The plaintiffs proceeded to depose these officers, and
6

the defendants commenced the depositions of the plaintiffs. A

dispute arose regarding discovery, resulting in the filing of

further motions by both sides. The trial court ultimately stayed

further discovery pending the filing of motions for summary

judgment by the defendants. In its order, the trial 

court stated that, upon request of the plaintiffs in their

response to the forthcoming motions for summary judgment, it

would consider permitting additional discovery before ruling on

the motions.

The plaintiffs’ response to the motions for summary

judgment that were subsequently filed by Diversified and Alt

included extensive and specific requests for further discovery. 

The trial court, however, denied the plaintiffs’ requests and

granted summary judgment in favor of both Diversified and Alt. 

In so doing, it found that further discovery was not necessary;

that the facts “would have led an ordinarily prudent person to

believe that plaintiffs herein were guilty of tortious

interference with [Diversified’s] business interests”; and that

there was no “genuine issue of material fact to support a finding

that [Alt] acted with malice in advising his client to proceed

with a civil action or that he was not fully informed of the

relevant allegations by his client.”

II. Standard of Review

We measure the propriety of the trial court’s grant of

summary judgment against the standard of Rule 56.04,
7

Tenn.R.Civ.P., which provides that summary judgment is

appropriate where

the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party is

entitled to a judgment as a matter of law.

We also note that the nonmoving party, in this case Williams, is

entitled to the benefit of any doubt. Byrd v. Hall, 847 S.W.2d

208, 211 (Tenn. 1993). The court must “take the strongest

legitimate view of the evidence in favor of the nonmoving party,

allow all reasonable inferences in favor of that party, and

discard all countervailing evidence.” Id. at 210-11. All facts

supporting the position of the nonmovant must be accepted as true

by the trial court. Id. at 212. It is only when the material

facts are undisputed and conclusively demonstrate that the movant

is entitled to a judgment that a trial court is justified in

depriving a claimant of its right to a plenary trial; in all

other instances, a trial on the merits is required. Summary

judgment “is clearly not designed to serve as a substitute for

the trial of genuine and material factual matters.” Id. at 210.

When reviewing a grant of summary judgment, an

appellate court must decide anew if judgment in a summary fashion

is appropriate. Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d

42, 44-45 (Tenn.App. 1993). Since this determination involves a

question of law, there is no presumption of correctness as to the
6

The legislature has recently recognized the evils of this type of

lawsuit. See T.C.A. § 4-21-1001, et seq. This legislation was enacted after

the underlying action was filed and hence is not applicable to this case.

8

trial court’s judgment. Id.; Hembree v. State, 925 S.W.2d 513,

515 (Tenn. 1996).

III. The Parties’ Contentions

Williams argues that the judgment of the trial court

should be vacated for several reasons. She contends that summary

judgment was inappropriate because the defendants did not carry

their burden of establishing (1) a lack of material factual

issues and (2) entitlement to judgment as a matter of law. In

the alternative, she insists that the trial court’s denial of the

plaintiffs’ request for further discovery constitutes error, in

that it prevented the plaintiffs from fully and adequately

responding to the defendants’ motions for summary judgment. She

argues that her lack of participation in RAILE’s opposition to

the landfill expansion clearly indicates that there was no

probable cause for an action against her. Williams also contends

that factual issues regarding Diversified’s and Alt’s motivation

remain, as evidenced by the fact that their lawsuit fits all of

the characteristics of a lawsuit filed to intimidate a citizen

into silence regarding an issue of public concern.6 Finally, she

argues that any statements attributable to her are protected by

the First Amendment to the United States Constitution, and thus

cannot form the basis for an action against her.

Alt, meanwhile, argues that the trial court did not

abuse its discretion in limiting discovery, but in fact
7

Several of the cases cited in this opinion involve malicious

prosecution claims in which the underlying proceeding was criminal, rather

than civil, in nature. However, it has been noted that “the same general

rules and limitations apply to an action founded upon a civil proceeding, visa-vis criminal proceedings.” Morat v. State Farm Mut. Auto. Ins. Co., 949

S.W.2d 692, 695 (Tenn.App. 1997). It is clear that a malicious prosecution

claim will lie for a wrongfully pursued civil action. See Peerman v.

Sidicane, 605 S.W.2d 242, 245 (Tenn.App. 1980); Evans v. Perkey, 647 S.W.2d

636, 641 (Tenn.App. 1982).

9

restricted only discovery of irrelevant matters. He also

contends that a claim of malicious prosecution is not appropriate

against an attorney under these circumstances, and that the

evidence demonstrates that he acted with probable cause and

without malice.

Diversified has not filed a brief or otherwise made an

appearance on this appeal.

IV. Applicable Law

To prevail on a claim for malicious prosecution, a

plaintiff must establish the following elements: 1) a prior

action was instituted without probable cause; 2) the defendant

brought such action with malice; and 3) the prior action was

terminated in the plaintiff’s favor. Roberts v. Federal Express

Corp., 842 S.W.2d 246, 247-48 (Tenn. 1992); Christian v. Lapidus,

833 S.W.2d 71, 73 (Tenn. 1992); Lewis v. Allen, 698 S.W.2d 58, 59

(Tenn. 1985); Lantroop v. Moreland, 849 S.W.2d 793, 797

(Tenn.App. 1992).7

Probable cause exists when the facts and circumstances

are sufficient to lead an ordinarily prudent person to believe an

individual is guilty of the conduct alleged. Roberts, 842 S.W.2d
8

In Roberts v. Federal Express Corp., 842 S.W.2d 246 (Tenn. 1992), the

Supreme Court overruled Lewis and other decisions to the extent that they had

held that the question of probable cause was ultimately a question of law for

the court. However, the proposition for which Lewis, Carter and Kerney are

cited in this opinion remains valid.

10

at 248. The existence of probable cause does not depend upon a

subjective assessment of the defendant’s mental state, but

instead is “determined solely from an objective examination of

the surrounding facts and circumstances.” Id. It is now clear

that such a determination is a question for the trier of fact. 

Id. at 249.

The element of malice generally addresses the

subjective mental state of the defendant. Id. at 248. However,

the existence of malice can be inferred from the fact that a

lawsuit was brought without probable cause. Lewis v. Williams,

618 S.W.2d 299, 303 (Tenn. 1981); Carter v. Baker’s Food Rite

Store, 787 S.W.2d 4, 8 (Tenn.App. 1989); Kerney v. Aetna Cas. &

Sur. Co., 648 S.W.2d 247, 252 (Tenn.App. 1982).8 This court has

also held that in actions for malicious prosecution, a showing of

a lack of probable cause will give rise to a rebuttable

presumption of malice. Sullivan v. Young, 678 S.W.2d 906, 911

(Tenn.App. 1984); Kerney, 648 S.W.2d at 252. This is a

presumption of fact. Lewis, 618 S.W.2d at 303. The issue of

malice is a question of fact for the jury. Id.

The defendants acknowledge that the third element of

Williams’ claim -- termination of the prior suit in favor of the

plaintiff -- is satisfied in this case. It is clear that the

voluntary termination by non-suit of a complaint satisfies the
11

requirement of a favorable termination, provided such termination

is not in connection with a settlement or compromise, or

undertaken in order to re-file the action in a different forum. 

Christian, 833 S.W.2d at 74.

With regard to malicious prosecution claims brought

against attorneys responsible for filing the underlying lawsuit,

the general rule is that an attorney is not immune from liability

solely by reason of his status. See Debra E. Wax, Annotation,

Liability of Attorney, Acting for Client, for Malicious

Prosecution, 46 A.L.R.4th 249, 259 (1986). Tennessee recognizes

this general proposition. See Evans v. Perkey, 647 S.W.2d 636

(Tenn.App. 1982), and Peerman v. Sidicane, 605 S.W.2d 242

(Tenn.App. 1980). 

V. Analysis

A. Williams’ Claim Against Diversified

As noted earlier, Diversified did not file a brief in

connection with this appeal. It apparently relies on the record

to support the trial court’s grant of summary judgment.

We turn first to the element of probable cause. In the

underlying action, Diversified alleged that RAILE and its

individual members, including Williams, had wrongfully interfered

with its business relations. Diversified claimed that the RAILE

members had made false and malicious statements in order to

obtain a denial of its application to expand the landfill, and
12

had sought to destroy its business by influencing others to

breach contracts or cease doing business with Diversified. 

However, neither Diversified’s complaint, nor the affidavits and

exhibits accompanying its motions for summary judgment, contain

any specific allegations regarding Williams. Furthermore, none

of the witnesses deposed by Williams testified as to any specific

knowledge of Williams’ involvement.

George Randi, who was President and Chief Executive

Officer of Diversified at the time of the events in question,

testified in his deposition that he had been “told” that Williams

had made certain statements. However, he could not elaborate on

the statements and did not recall who had given him this

information. He also testified that he had assumed that if

Williams was a member of RAILE, then she was necessarily involved

in its opposition to the landfill. Likewise, Ralph Deporter, a

member of Diversified’s Board of Directors at the time, testified

in his deposition that he was unsure whether Williams had

participated in RAILE’s opposition to the landfill expansion

prior to the filing of Diversified’s lawsuit against her. He

also stated that he had no information that would lead him to

believe that Williams had made any false statements regarding

Diversified’s compliance with its landfill permit. By the same

token, Paul Ray Seaton, a shareholder and former officer of

Diversified, testified in his deposition that he had only seen

Williams’ name in the paper or heard it come up in connection

with RAILE. Like the other witnesses, Seaton could offer no

specific testimony regarding Williams’ involvement.
13

In opposition to Diversified’s allegations, Williams

submitted an affidavit in which she states that she was not

involved in RAILE’s opposition to the landfill prior to the

filing of Diversified’s lawsuit against her. She contends that

she made no statements to government officials or the press and

that she attended no public hearings or county commission

meetings prior to the filing of Diversified’s lawsuit. Williams

states that her only participation in the opposition to the

landfill consisted of attending three RAILE meetings, and one

public hearing -- all in August, 1993, well after Diversified

filed its action against her.

Thus, there is evidence that Williams was not involved

in RAILE’s opposition to the landfill expansion prior to the

filing of Diversified’s suit, and that she did not make any

statements regarding Diversified or the landfill prior to the

time the underlying action was filed. Such evidence necessarily

raises a question as to whether Diversified had probable cause to

file suit against her. From our “objective examination of the

surrounding facts and circumstances”, Roberts v. Federal Express

Corp., 842 S.W.2d 246, 248 (Tenn. 1992), we find that there is an

issue of material fact as to whether an ordinarily prudent person

would have been led to believe that Williams was guilty of

wrongful interference with Diversified’s business interests. Id.

The facts before the trial court, and now before us, clearly do

not negate the element of lack of probable cause.

We turn next to the element of malice. As noted

earlier, the element of malice may be inferred from an absence of
14

probable cause. Lewis v. Williams, 618 S.W.2d 299, 303 (Tenn.

1981); Carter v. Baker’s Food Rite Store, 787 S.W.2d 4, 8

(Tenn.App. 1989); Kerney v. Aetna Cas. & Sur. Co., 648 S.W.2d

247, 252 (Tenn.App. 1982). Thus, if there are issues of disputed

fact in the instant case regarding the existence of probable

cause, it follows that the issue of malice is still a matter of

disputed fact by virtue of the aforesaid inference. It is clear

that the facts before us would support a finding that Diversified

did not have probable cause to sue Williams. This gives rise to

a presumption of malice.

The record reveals that Diversified failed to negate

any one of the elements of Williams’ claim of malicious

prosecution. Taking “the strongest legitimate view of the

evidence” in favor of Williams, and allowing “all reasonable

inferences” in her favor, Byrd v. Hall, 847 S.W.2d 208, 210

(Tenn. 1993), we find that summary judgment for Diversified is

not appropriate.

B. Williams’ Claim Against Alt

We now turn to the grant of summary judgment in favor

of Alt. Alt contends that Williams satisfied neither the

probable cause nor the malice element of her claim. Alt also

maintains that “malicious prosecution is a cause of action

against a party, not an attorney”; however, he has cited no

authority, nor have we found any, to indicate that an attorney is

immune from such a claim. As we have indicated earlier, the case
15

authority is to the contrary. See Evans, 647 S.W.2d at 642;

Peerman, 605 S.W.2d at 245.

Allowing “all reasonable inferences” in Williams’s

favor, Byrd, 847 S.W.2d at 210, we conclude that the record

reflects material disputes as to both probable cause and malice. 

The existence of probable cause does not depend on Alt’s

subjective mental state, but instead requires “an objective

determination of the reasonableness of [his] conduct in light of

the surrounding facts and circumstances.” Roberts, 842 S.W.2d at

248. He therefore cannot negate the lack of probable cause

element of Ms. Williams’ claim simply by contending that he filed

the action on behalf of his client and in good faith. As

determined from the surrounding facts and circumstances, issues

of fact remain regarding whether an ordinarily prudent attorney

would have proceeded to file the instant action against her. Id.

The element of malice, on the other hand, does involve

a question of subjective intent. Id. However, as with the claim

against Diversified, there is an issue as to whether probable

cause existed; since an absence of probable cause gives rise to

an inference of malice, Lewis, 618 S.W.2d at 303, Carter, 787

S.W.2d at 8, Kerney, 648 S.W.2d at 252, factual disputes

regarding malice remain as well.

Alt filed an affidavit in this case in which he denied

“that he had any ill-will or animosity against any of the

plaintiffs.” His affidavit consists of a series of sworn denials
9

As shown in a different context, an attorney, in filing a lawsuit, has

an obligation to conduct a reasonable inquiry regarding the factual basis for

the suit. See Rule 11.02, Tenn.R.Civ.P.

16

with respect to the allegations against him in the complaint. 

Illustrative of these denials is paragraph 13 of the affidavit:

Affiant denies that he acted maliciously or

oppressively in initiating and prosecuting

the prior lawsuit and its appeal. He further

denies that he had any intent to punish,

intimidate, vex, harass, annoy, injure, or

damage any of the plaintiffs or sought to

frighten or intimidate them in any manner.

On the issue of probable cause, Alt’s affidavit contains sparse

facts:

Affiant became aware through media coverage

that Diversified in connection with its

application for expansion of its landfill was

being opposed by citizens of McMinn County

who were residents in the vicinity of the

landfill.

Any subsequent information learned concerning

the name of the group, their members, etc.,

would all be subject to the attorney/client

privilege.

Alt’s affidavit did not present facts showing that he

had probable cause to file the underlying action.9 That

affidavit certainly was not sufficient to establish undisputed

facts regarding the issue of probable cause as to Williams once

she filed an affidavit reflecting no involvement in the matters

which prompted the filing of the underlying action.

In order to secure summary judgment, Alt had to negate

at least one element of Williams’ claim. He did not show that he
10Abuse of process has been defined as a “use of legal process to obtain

a result it was not intended to effect, for wrongful purposes.” Evans, 647

S.W.2d at 641. While this aspect of Williams’ claim is not discussed

extensively in the briefs, we have concluded that neither of the defendants is

entitled to summary judgment as to this claim.

17

had probable cause to institute an action against her on his

client’s behalf. With no facts in Alt’s affidavit showing

probable cause, and with Williams attesting to a total lack of

involvement in the matters alleged in the underlying lawsuit, we

are left with only one conclusion -- a total lack of probable

cause which in turn gives rise to an inference of malice.

In summary, our analysis proceeds along the following

lines. Williams did not participate in any of the matters upon

which the underlying action was based and did not make any

actionable statements. We know this because she says so in her

affidavit and, as the nonmoving party, she is entitled to our

full belief. While she was not, in fact, involved in any

actionable conduct, we must still determine if Diversified and/or

Alt were possessed of facts that would have led an ordinarily

prudent person to believe she was guilty of such conduct. 

Neither Diversified nor Alt have placed before us any real facts

showing Williams’ involvement. This, plus her non-involvement in

fact, presents a picture of no probable cause. A lack of

probable cause leads to a presumption of malice. Thus, the

record before us presents a lack of probable cause and malice --

the remaining elements of an action for malicious prosecution.

While an attorney can have probable cause to file a

lawsuit and thereby avoid a malicious prosecution action or an

abuse of process action,10 see Evans, 647 S.W.2d at 642, it is
18

likewise clear that his or her involvement can present a factual

scenario supporting a conclusion that the attorney was guilty of

actionable conduct, see Peerman, 605 S.W.2d at 245. In this

case, we do not know the facts, if any, that prompted Alt to

believe that Williams was guilty of the matters alleged in the

underlying lawsuit. Since this information is not now available

to us, Alt is not entitled to a dismissal of this action.

C. Trial Court’s Limitation of Discovery

Having determined that the papers before us do not

justify a grant of summary judgment to either of the defendants,
19

we pretermit the appellant’s alternative basis for attacking

summary judgment, i.e., the alleged failure of the trial court to

allow additional discovery before deciding the defendants’

motions for summary judgment. We do not believe it appropriate

for us to decide whether, and to what extent, additional

discovery is appropriate in this case. Those issues are best

left to the trial court for future determination.

VI. Conclusion

For the foregoing reasons, we hold that the trial court

erred in granting Diversified and Alt summary judgment as to the

plaintiff Williams. That portion of the trial court’s judgment

is hereby vacated. In so holding, we express no opinion as to

the merits of either claim. Costs on appeal are assessed against

the appellees. This case is remanded to the trial court for such

further proceedings as are appropriate, consistent with this

opinion.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

_________________________

Houston M. Goddard, P.J.

_________________________

William H. Inman, Sr.J.