IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER 6, 2001 Session

STEPHEN B. CANTRELL, DDS, MD v. MARTIN SIR

Direct Appeal from the Circuit Court for Davidson County

No. 99C-2554; The Honorable Barbara N. Haynes, Judge

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

This appeal involves a trial court’s grant of summary judgment, which dismissed a doctor’s claim

for malicious prosecution against an attorney. The attorney had drafted a complaint for a former

patient of the doctor that was filed by the patient pro se several years prior to the initiation of the

present suit. The patient’s claim was ultimately dismissed, prompting the doctor to file suit against

the attorney who drafted the complaint. The trial court found that the doctor was unable to show a

basis for finding malice or damages and granted summary judgment 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

ALAN E. HIGHERS,J., delivered the opinion of the court, in which W.FRANK CRAWFORD, P.J.,W.S.,

and HOLLY KIRBY LILLARD, 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 procedure, Ms. Sweeney was hospitalized.
-2-

Ms. Sweeney, some time after being released from the hospital, contacted the Nashville Bar

Association to find an attorney to represent her in an action against General Hospital and the doctors

involved in completing the procedure. The bar association referred 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, one to

three days before the statute of limitations was set to expire, Mr. Sir agreed to prepare a complaint

for Ms. Sweeney naming Dr. Cantrell, among others, as a defendant. Mr. Sir alleges that he agreed

to assist Ms. Sweeney in order to preserve her malpractice claim. Although Mr. Sir drafted the

complaint and signed as surety on the cost bond, he was never listed as the attorney of record in Ms.

Sweeney’s case. Instead, the record indicates that Ms. Sweeney filed the complaint pro se on August

16, 1993 and paid the filing fee herself. Ms. Sweeney eventually retained two other Nashville

attorneys in March of 1994, as her attorneys of record. These new attorneys substituted 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 before this Court on appeal. In his complaint, Dr. Cantrell alleges that Mr. Sir acted

maliciously and without probable cause in drafting the complaint filed by Ms. Sweeney. Dr. Cantrell

further alleges that Mr. Sir’s actions proximately caused him to suffer damage 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 claim, or any damages. Dr. Cantrell responded to

the motion by filing an affidavit in which Dr. Samuel J. McKenna indicated that Dr. Cantrell’s

actions did not violate the applicable standard of care and thus, did not amount to negligence. Dr.

Cantrell further insisted that under his interpretation of the law, summary judgment would be

improper because malice could 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 matter of law, entered an order granting Mr. Sir’s motion for summary judgment. Dr. Cantrell

appeals from the court’s grant of summary judgment and raises the following issues for our review.

 

Issues

I. Whether the court erred in granting summary judgment based on a finding that no

material issues of fact existed;

II. Whether the court erred in finding that there was no basis for finding malice under

the facts supplied by Dr. Cantrell; and

III. Whether the court erred in finding that Dr. Cantrell failed to establish any damages.
-3-

Standard of Review

The Tennessee Supreme Court recently offered a thorough and informative commentary on

the standard of review applicable in this appeal in Staples v. CBL & Associates, Inc., 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 question of law, no

presumption of correctness attaches to the lower court's judgment, and our task is

confined to reviewing the record to determine whether the requirements of TENN.R.

CIV. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997);

Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991).

Tennessee Rule of Civil Procedure 56.04 provides that 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, see Byrd 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 undisputed facts. See Anderson v. Standard Register Co., 857

S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its

motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d

523, 524 (Tenn.1991). When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party to set forth specific facts

establishing the existence of disputed, material facts which must be resolved by the

trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

To properly support its motion, the moving party must either affirmatively

negate an essential element of the non-moving party's claim or conclusively establish

an affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585,

588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the

moving party fails to negate a claimed basis for the suit, the non-moving party's

burden to produce evidence establishing the existence of a genuine issue for trial is

not triggered and the motion for summary judgment must fail. See McCarley v. West

Quality Food Serv., 960 S.W.2d at 588; *89 Robinson v. Omer, 952 S.W.2d at 426.

If the moving party successfully negates a claimed basis for the action, the nonmoving party may not simply rest upon the pleadings, but must offer proof to

establish the existence of the essential elements of the claim.

The standards governing the assessment of evidence in the summary

judgment context are also well established. Courts must view the evidence in the

light most favorable to the nonmoving party and must also draw all reasonable

inferences 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 drawn from the facts permit a

reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d

150, 153 (Tenn.1995); 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. Cantrell’s first issue on appeal, whether the court erred in granting summary

judgment based on a finding that no material issues of fact existed, to be without merit. Dr. Cantrell

has failed to indicate any disputed material facts in this appeal. Our review of the record leads to the

same result; we also have been unable to discover any disputed material facts. Further, we do not

agree with Dr. Cantrell’s argument regarding the possible existence of material information shielded

from him under the attorney-client privilege held between Mr. Sir and Ms. Sweeney. We find no

indication in the record that Dr. Cantrell even attempted to formally obtain that information from Mr.

Sir. Accordingly, we hold that the trial court did 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 for malicious prosecution, a plaintiff must show that the following three essential

elements are present: “(1) a prior suit or judicial proceeding was brought against plaintiff without

probable cause, (2) defendant brought such prior action with malice, and (3) the prior action was

finally terminated in favor of plaintiff.” Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 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 element, malice, present for purposes of the summary judgment.

Dr. Cantrell’s argument is based on his assertion that under Tennessee law, malice can be inferred

so long as Mr. Sir lacked probable cause when drafting Ms. Sweeney’s complaint. 

Dr. Cantrell has cited several Tennessee cases, which support the general notion that malice

can be inferred where there was 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 generallyLewis v. Smith, 618

S.W.2d 299 (Tenn. 1981); Cohen v. Cook, 462 S.W.2d 502 (Tenn. Ct. App. 1969); Peoples

Protective Life Ins. Co. v. Neuhoff, 407 S.W.2d 190 (Tenn. Ct. App. 1966); Thompson v. Schulz,

240 S.W.2d 252 (Tenn. Ct. App. 1949). Although we agree with Dr. Cantrell that this Court has

held that malice can be inferred when no probable cause existed for initiating a criminal prosecution,

we have found no cases where that inference has been granted to a plaintiff who was sued in a civil

cause. For example, in Dunn v. Ala. Oil & Gas Co., 299 S.W.2d 25, 28 (Tenn. Ct. App. 1956), this

Court held that malice could be inferred from a lack of probable cause in the prosecution of a felony.

Similarly, 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 give rise to a rebuttable presumption of malice” where a

criminal prosecution has been initiated. We have not yet extended this inference to malicious

prosecution claims arising from civil matters. Thus, it appears that this would be an issue of first

impression if we were to address it. 

After reviewing the record, however, we fail to reach the issue of whether the inference

should be extended to malicious prosecution claims resulting from civil litigation. We reach this

conclusion by assumingarguendo that even if we were to allow this inference, Dr. Cantrell has failed

to establish any facts from which a lack of probable 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 raise an inference of malice, he

must only show that there were no “reasonable grounds for prosecution as the circumstances

appeared to the prosecutor or as they would have appeared by ordinary circumspection and diligence

on his part when he acted.” Further, Dr. Cantrell urges this court to apply an objective test of
-5-

reasonableness similar to that employed under Rule 11 of the Tennessee Rules of Civil Procedure,

which governs an attorney’s duty to make a reasonable inquiry into the facts before filing a claim.

We must note, however, when discussing probable cause, Dr. Cantrell has again cited cases dealing

with malicious prosecution arising from criminal prosecutions. With regard to finding a lack of

probable cause in bringing a civil action, in Buda v. Cassel Bros., Inc., 568 S.W.2d 628 (Tenn. Ct.

App. 1978), we stated: 

In order to establish the lack of probable cause in instituting a civil proceeding, it

must appear that the suit was filed primarily for a purpose other than that of securing

the proper adjudication of the claim in which the proceedings are based. If it is

established that the party instituting the proceeding reasonably believes in the

existence of the facts upon which the claim is based and has reasonable belief that

under those facts the claim may be valid or has reasonable belief in reliance upon the

advice of counsel, sought in good faith and given after full disclosure of all relevant

facts within his knowledge and information, then probable cause is established. 

Id. at 631-32 (citing Restatement of Torts, Second, §§ 674, 675). Accordingly, our analysis in Buda

should be applied as the appropriate standard to measure probable cause. 

With regard to the summary judgment, we stated above that to properly support a motion for

summary judgment, “the moving party must either affirmatively negate an essential element of the

non-moving party's claim or conclusively establish an affirmative defense.” Staples, 15 S.W.3d at

88 (citations omitted). In the case sub judice, Mr. Sir offered evidence along with his motion

indicating that he had reasonably relied on the facts provided by Ms. Sweeney. Evidence was also

offered that Ms. Sweeney had discussed her case with a doctor at her treating hospital who indicated

that he would testify for her at trial in a malpractice action. Under the standard given in Buda, we

find that this information clearly indicated 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 improper. As stated

above, “in order to establish the lack of probable cause in instituting a civil proceeding, it must

appear that the suit was filed primarily for a purpose other than that of securing the proper

adjudication of the claim in which the proceedings are based.” Buda, 568 S.W.2d at 631. In our

review of the record, we find that Dr. Cantrell failed to offer evidence showing that Mr. Sir’s actions

were anything but to secure the proper adjudication of Ms. Sweeney’s claim. Accordingly, Dr.

Cantrell offered no evidence that would form a basis for finding a lack probable cause that would

raise an inference of malice. Because we find that Dr. Cantrell failed 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 decision of the trial court. Costs

on appeal are assessed against the appellant, Dr. Steven B. Cantrell, and his surety for which

execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE