### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE NOVE MBER 6, 2001 Session
STEPHE N B. C ANTRE LL, DD S, MD v. MAR TIN SIR Direct Appeal from the Circuit Court for D avidson County No. 99C-2554; The Honorable Barbara N. Haynes, Judge

No. M2001-00272-COA-R3-CV - Filed April 23, 2002

This appe al involve s a trial c ourt’s g rant of s ummary

judgmen t, which dismissed a

doctor’ s claim for ma lici ous prosecution against an attorney . The attorney had drafted a complaint for a former patient of the doctor that wa s fi led by the patie nt pro se several y ears prior to the initiation of the present suit. The patient’s claim was ultimately dismissed, prompting the doctor to file suit again st the attorney who dr

afted the complaint. The trial court found that the docto r was una ble to show a basis for finding malice or damages and grante d summary judgme nt in favor of the attorney . For the following reasons, we affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined. Stephanie C. Hatchett, Nashville, TN, for Appellant Winston S. Evans, Phillip Byron Jones, Nashville, TN, for Appellee
OPINION Facts and Procedural History

Barbara A. Sweeney

(“Ms. Sweeney ”) underwent a dental procedure at General Hospital of Davidson County, Tennessee ( “General Hospital”) in August 1992, which involved the removal of her impacted wisdom teeth. Dr. Steven B. Cantrell (“Dr

. Cantrell”) assisted in the procedure. As a result of post-operative difficulties stemming from the procedur e, Ms. Sweeney

was hospitalized.-2-

Ms. Sweeney, some time a fter being released fr

om the hospital, contacted the Nashville Bar Association to find an attorney to represent her in an action aga inst General Hospital and the doctors involved i n completing the pr ocedure . The bar

associa tion refe rred Ms. Sweeney

to Martin S. Sir (“Mr. Sir”), a local attorney

. Mr. Sir first met with Ms. Sweeney in April 1993. Approximately four months later, o ne to three days befor

e the statute of limitations was set to expire, Mr. Sir agreed to prepare a

complaint for Ms. Sweeney na

ming Dr. Cantrell, among others, as a defendant. Mr. Sir alleges that he agree d to assist Ms. Sweeney in order to preserve her malpractice cla im. Although M r. Sir dra fte d the complaint and sign ed as sur ety on the cos t bond, he

was neve r listed a s the attor

ney of reco rd in Ms. Sweeney’ s case. I

nstead, t he reco rd indica tes that Ms

. Sweeney f

iled the compl aint pro se on Augu st 16, 1993 and p aid the f

iling fe e herself. Ms. Swe eney eventua lly r etained two oth er N ashville at to rn eys in March of 1994, as her at to rn eys of reco

rd. Thes e new at

torney s substitute d for Mr. Sir on the cost bond. Ms. Sweeney’ s suit was ultimately dismissed on April 9, 1996.
On April 20, 1998, Dr. Cantrell filed suit against Mr. Sir for malicious prosecution, which is the case now befo re this Cou

rt on appe al. In his complaint, Dr. Cantrell allege s that Mr. Sir acted malicious ly

and without probable cause in drafting the compl aint file d by

Ms. Sweeney . Dr. Cant

rell further allege s that Mr . Sir’s ac ti ons proximately caused him to suffer da mage to his reputation, delay and additional travel expenses in his effort to obtain a New Jersey medical license, and loss of income.
On October 12, 2000, Mr. Sir filed a statement of uncontested facts along with a motion for summary judgment. Mr. Sir, in his motion, argued that Dr. Cantrell had failed to show evidence of malice, as required for a malicious prosecution clai m, or any damage s. Dr. Can

trell re sponded to the mo ti on by fili ng an affidavit in which Dr. Samuel J. McKenna indicated that Dr . Cantrell’s actions did not violate th

e applic able sta

ndard of care a nd thus, did not amount to negligence. Dr. Cantrell further insisted t hat under his interpretation of the law, summary judgment would be improper because malice c ould

be presumed by

a showing of lack of probable cause. On January 9, 2001, the court, finding no issues of material fact and that Mr. Sir was entitled to a judgment as a ma tter of law, entered an order g ranting Mr. Sir’s motion for summary judgment. D r. Cantrel l appealsfrom the court’s grant of summary judgment and raises the following issues for our review.
Issues
I. Whether

the court erred in granting summary judgme

ntbased on a finding that no material issues of fact existed;
II. Whether

the cour t erred in finding

that ther e was no b asis for finding malice under the facts supplied by Dr . Cantrell; and
III. Whether

the court erred in finding that Dr. Cantrell failedto establi sh any damage s.-3- Standard of Review The Tennessee Supreme Court recently offered a thorough and informa tive commentary on the standard of

review applicable in this appeal in Staples v. CBL & Associates, I nc. , 15 S.W.3d 83 (Tenn. 2000):
The standards governing an appellate court's review of a motion for summary judgment are well settled. Since our inquiry involves purely a que stion of law, no presumption of corr

ectn ess a ttaches to the lowe r court' s judgme

nt, and ou

r task is confinedto reviewing therecord to determine whether the requirements of T ENN
. R. C IV
. P. 56 have been met. See Hunter v. Brown , 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran

Bank/C entral S outh , 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56 .04 pr ovides tha t summary

judgmen t is appropr iatewhere: ( 1) there

is no genuin e issue wi

th rega rd to the ma

terial f acts re levant to the claim or defense contained in the motion, see By rd v. Hall , 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to a judgment as a matter of law on the

undispute d facts. See Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burde

n of proving that its motion satisfies these requirements. See Do wnen v. Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn.1991). When the party seeking summary

judgment makes a properl y supported motion, the

burden sh

ifts to the nonm

oving pa rty to set for th specif ic facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. See By

rd v. Hall , 847 S.W.2d at 215. To properly support its motion, the moving par ty must either a ffirmat

ively negate an essential element o f the non- moving pa rty 's clai m or conc lusively establish an affirmative defense. See McCarley v. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn.1 998); Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn.1997 ). If the moving party fa

ils t o negat e a clai med ba sis fo r the s uit, the no n-mov ing par ty's burden to produce evidence establishing the existence of a g enuine issue for trial is nottriggered and the motion for summary judgment must fail. See McCarle

y v. West Quality Food Serv. , 960 S.W.2d at 588; *89 Robinson v. Omer , 952 S.W.2d at 426. If t he mov ing party succ essfully neg ates a claimed basis for the action, the nonmoving party may

no t s im pl y r est upon th e pleadings, but

must offe

r proof t o establish the existence of the

essentia l element s of the c laim. The standards governing the assessment of evi dence in the summary judgment context ar

e also we ll establi shed. Cour

ts must view

th e evidence in the light most favorable to the nonmoving party and must al so draw a

ll reason able i nfere nces in the nonmoving party' s favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inferences to be dr a wn fro m the fac ts permit a reasona ble person to reach only

one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 ( Tenn.199 5); Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Staples , 15 S.W.3d at 88-89 (footnote omitted).

Law and Analysis-4-

We find Dr. C antrell’ s first issue on appeal, whether the court erre d in granting summary judgment based on a finding that no material issues of fact

existed, to b e without m

erit. Dr . Cantrell has failedto indicate any disputed mater ial facts in this appeal. Our review of the record leads to the same result; we also have been unable to discover a ny disputed material

facts. Further, we do not agree with Dr. Ca

ntrell’sargume

nt rega rding th e possible existence of material information shielded from him under the attorney -client privilege held between Mr. Sir and Ms. Sweene y. We f ind no indication in the re cord tha t Dr. Cant rell eve n attempte d to forma

lly obtain that information from Mr. Sir. Accordingly , we hold that the trial court di d not err in finding that no issues of material fact existed. We also find Dr. Cantrell’s second issue on appeal, whether the court erred in finding that there was no basis for finding malice under the facts supplied by Dr

. Cantrell , to be without merit. In any action f or malici ous prose cution, a plainti f f must show that the following three essential elementsare pre sent: “(1 ) a prior suit or judi cial pro ceeding was brou ght a gainst plaintiff without probable cause, (2) defendant broug ht such prior action w ith malice, and (3) the prior action was finall y terminated in favor of plaintiff.” Christian v. Lapidus , 833 S.W.2d 71, 73 (Te nn. 1992 ) (citing Lewis v. Allen , 698 S.W.2d 58, 59 (Tenn. 1985)). Dr. Cantrell maintains that the trial court erred by failing to find the second e lement, ma

lice, pr esent fo r purpose s of the su

mmary judgmen t. Dr. Cantrell’s argument is based on his assertion that under Tenne ssee law, malice can be inferre d so long as Mr. Sir lacked probable cause whe n drafting Ms. Sweeney ’s complaint. Dr. Cantrell has cited several Tennessee ca ses, which support the general notion that malice can be inferred where there wa s no probable cause to prosecute the plaintiff. The line of cases cited by Dr. Cantrell, however, deal with malicious prosecution claims where a plaintiff was prosecuted for a criminal offense as opposed to being sued in a civil matter. See gener ally Lew is v. Smith , 618 S.W.2d 299 (Ten

n. 1981); Cohen v. C ook , 4 62 S.W.2d 502 (Tenn. Ct . App. 196 9); Peoples Protective Life I

ns. Co. v. Neuhoff

, 407 S.W.2d 190 (Tenn. Ct. App. 1966); Thompson v . Schulz , 240 S.W.2d 252 (Tenn. Ct. A pp. 1949) . Although we agree with Dr . Cantrell that this Court has held that malice can be inferred when no pr obable cause existed

for initiating a criminal prosecution, we have found no cases where that infer ence has been grante d to a plaintiff who was sued in a c ivil cause. For example, in Dunn v. Ala. Oil & Gas Co. , 299 S.W.2d 25, 28 (Tenn . Ct. App. 1 956), this Courtheld that

ma li ce co ul d b e i nfer re d f ro m a la ck of

pr ob ab le ca us e i n t he pr os ec ut io n o f a fe lo ny. Si mi la rl y, in Sullivan v. Young , 678 S.W.2d 906, 911(Tenn. Ct. App. 1989), this Court held that “a showing of a lack of probable cause will g ive rise to a rebuttable presumption of malice” w here a criminal prosecution has been initiated. We have not yet extended this inference to malicious prosecution claims arising from civi l matte rs. Thus, it appea rs that thi s would be

an issue o f first impression if we were to address it.
After reviewing the r

ecord, however , we fail

t o reach the issue of whether the infere nce should be extended to malici ous prose cution cl aims resulting fr om civil liti gation. We reac h this conclusion by assuming arguendo that even if we were to allow this inference, Dr. Cantrell has failed to establish

any facts fr om which a

lack of p robable cause could be shown. Without showing a lack of probable cause, there would be no basis for finding malice.
Dr. Cantrell insists that to show a lack of probable cause and ra ise an inference of malice, he must only show that there we re no “ reasonable grounds for prosec ution as the circumstances appeared to the prosecutor or as they would have appeared

by ordinary

circumspection and diligence on his pa rt when he acted.” Further , Dr. Cant rell urg es this court to app ly a n objecti ve te st o f-5-

reasona bleness similar to t

hat emplo ye d under Rule 11 of the Tennessee Rules of Civil Procedure, which g overns a

n attorne y’ s duty to make a r

easonab le inquiry

into the fa

cts befo re filing a claim. We must note, however, when discussing probable cause, Dr. Cantrell has again cited cases de aling withmaliciousp rosecu tion arising from criminal prosecutions. With regard to finding a lack of probable cause in bringinga civil action, in Buda v. Cassel Bros., I nc. , 568 S.W.2d 628 (Tenn. Ct

. App. 1978 ), we sta

ted:
In order to

establish the lack of proba ble caus e in inst

ituti ng a civ

il proce eding, it must appear that the suit was f

iled prima

rily for a pur poseother than that of securing the proper adjudication of the claim in which the proceeding s ar e based. If it is established that t he part y instit utin g the pr oceedi ng reason ably believes in the existence of the facts upon which the claim is based and has rea sonabl e belief that under those fa cts the c laim may

be valid o

r has re asonable

belief in reliance upon the advice of counse

l, sough t in good f

aith and given

after full disclosure of all relevant facts within his knowledge and information, then probable ca use is established.
Id. at 631 -32 (ci ting Restatement of Torts, Second , §§ 674, 675). Accordingly , our analysis in Buda should be applied as the appropriate standard to measure probable cause.
With regar

d to the sum

mary judgmen t, we stat ed above that to pro

perly support a motion for summary judgmen t, “the moving party must either affirmatively negate an essential element of the non-moving party's claim or conclusively e stablish an affirmative defense.” Staples , 15 S.W.3d at 88 (citations omitted). In the case sub judice , Mr. Sir of fered e vidence along w ith his m o tion indicating that he hadreasona bly relied o n the facts provided by M s. Sweene

y. E vidence was also offered that Ms. Sweeney ha

d discussed her case with a doctor at her treating hospital who indicated that he would testify for he r at trial in a malpractice action. Under the standard given in Buda , we find that this information clearly indica ted that Mr. Sir acted with probable cause.
At this point in the proceedings, Dr. Cantrell had to offer proof to establish the presence of malice or the lack of probable cause to show that summary judgment was impr oper. As stated above, “in orde

r to estab lish the la

ck of pro bable ca use in insti

tuting a civil proc eeding , it must appear that the suit wa s filed primarily for a purpose other than that of securing the prope r adjudication of the claim in which the proceedings are based.” Buda , 568 S .W. 2d a t 631. In our review of the record, we find that Dr. Cantrell failed to offer evidenc e showing that Mr. Sir’s actions were a nything but to secur e the proper adjudication of Ms. Sweeney ’s claim. Accordingly , Dr. Cantrell offered no evidence that would form a ba sis for finding a lack probable cause tha twould raise an infer ence of malice. B ecause

we find th at Dr. Ca

ntrell fa ile d to show that an issue of material fact existed and that Mr. Sir was not entitled to a judgment as a matter of law, Dr . Cantrell’s third issue on damages pretermitted.

Conclusion-6-

Based on the foregoing conclusions, we hereby affirm the de cision of the trial cou rt. Costs
on appeal ar

e ass essed against the appellant, Dr. Steven B. Cantrell, and his surety for which
ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ ALAN E. HIGHERS, JUDGE