IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 18, 2015 Session

FIT2RACE, INC., ET AL. v. JANSON MILES POPE ET AL.

Appeal from the Circuit Court for Davidson County

No. 10C4659 Ross H. Hicks, Judge

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No. M2015-00387-COA-R3-CV – Filed January 29, 2016

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Defendants in a federal civil conspiracy case that was voluntarily dismissed filed a malicious 

prosecution case in state court against the plaintiff and his attorney. The plaintiff and his 

attorney filed motions for summary judgment, which the trial court granted. The defendants 

appealed, and we affirm the trial court’s judgment. When a plaintiff voluntarily dismisses a 

lawsuit, the dismissal does not constitute a “favorable termination” for purposes of satisfying 

the third element of a malicious prosecution lawsuit.

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

ANDY D.BENNETT,J., delivered the opinion of the court, in which FRANK G.CLEMENT,JR., 

P.J., M.S., and RICHARD H. DINKINS, J., joined.

Jeffrey A. Greene, Franklin, Tennessee, for the appellants, Fit2Race, Inc., Stefan Laursen, 

and Paul Lundgren.

Nicholas M. Tidwell, Brentwood, Tennessee, for the appellee, Janson Miles Pope.

Reba Brown and Brad W. Craig, Nashville, Tennessee, for the appellee, Phillip Leon 

Davidson.

OPINION

I. BACKGROUND

This is a malicious prosecution case that began with a contentious divorce between 
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Janson Miles Pope and Sayuri Kinjo Pope. Mr. Pope filed a complaint for divorce in 

December 2007 on the basis of irreconcilable differences and Ms. Pope’s inappropriate 

marital conduct. Pope v. Pope, No. M2010-00067-COA-R3-CV, 2010 WL 4272690, at *1 

(Tenn. Ct. App. Oct. 28, 2010). During the divorce proceedings, Mr. Pope filed a motion 

seeking sanctions because Ms. Pope was refusing to respond adequately to some of his 

discovery requests. Id. at *2. The trial court ordered Ms. Pope to comply with Mr. Pope’s 

discovery requests and warned Ms. Pope that failure to comply with its order would result in 

her “being barred from taking any position in opposition to [Mr. Pope]’s position concerning 

any issue that was or reasonably could be believed to be contained in that lacking 

information.” Id. Then, following a hearing on February 13, 2009, the trial court entered an 

order stating that “[Mr. Pope]’s claims regarding any matters covered by discovery that 

should have been and has not been provided by [Ms. Pope] by February 20, 2009 shall be 

taken to be established in accordance with [Mr. Pope]’s claims, and [Ms. Pope] is forbidden 

to pursue or oppose any claims and defenses covered by such material.” Id. 

The parties’ divorce trial lasted five days, and the trial court granted Mr. Pope a 

divorce from Ms. Pope on December 3, 2009. Id. at *3. In its Final Decree, the trial court 

found that Ms. Pope was secretly working with Paul Lundgren and Stefan Laursen to cut Mr. 

Pope out of a profitable business arrangement Mr. Pope had initiated to sell wet suits on 

eBay. The court found Ms. Pope stole Mr. Pope’s business name to the point of transferring 

all mail in the business to her address, causing Mr. Pope to stop receiving any UPS mailbox 

deliveries. As part of its Final Decree, the trial court wrote that Ms. Pope “is sanctioned and 

is forbidden to oppose [Mr. Pope]’s claim that she subverted and destroyed [Mr. Pope]’s 

business, The Trading Post.”

Ms. Pope appealed the trial court’s Final Decree, raising several issues. The only 

argument she made that is relevant to this case was that the trial court erred in finding she 

subverted and destroyed Mr. Pope’s business. Pope, 2010 WL 4272690, at *4. This Court 

affirmed the trial court’s finding, stating:

Tenn. R. Civ. P. 37.02(B) allows a court to impose “an order refusing to allow 

the disobedient party to support or oppose designated claims or defenses” as a 

sanction for failure to comply with prior orders. The February order stated 

specifically that Husband’s claims regarding matters which were covered by 

discovery that could and should have been provided would be taken as 

established, and Wife would be forbidden to oppose such claims related to 

discovery that she failed to provide. In the event that Wife failed to comply 

with discovery, the court’s authority and discretion to impose a sanction 

authorized by Rule 37 and appropriate for the particulars of the case was not 

limited simply because the court did not lay out all possible sanctions in its 
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February 25 order. Further, to the extent Wife contends that the court’s 

February 25 order was in any way confusing or inadequate, the record shows 

neither compliance on the part of Wife with any aspect of the order nor an 

effort by Wife to clear up any confusion. The court did not abuse its discretion 

in sanctioning Wife.

Id. at *8.

Mr. Pope’s Federal Complaint

Six months later, in June 2010, Mr. Pope filed a complaint in federal court against Ms. 

Pope, Fit2Race, the owners of Fit2Race, Paul Lundgren and Stefan Laursen, and the related 

foreign corporation Tri-Depot, alleging interference with business relations and civil 

conspiracy. Mr. Pope’s company, The Trading Post, was an internet-based business. He 

alleged the defendants improperly accessed the accounts of his company, rerouted his mail to 

the defendants’ address in Nevada, and improperly directed his customers to the defendants’ 

Fit2Race and Tri-Depot websites. Mr. Pope alleged that as a result of the defendants’ 

conduct, he lost all of his business inventory and income.

The defendants in the federal action filed a motion for summary judgment and a 

motion seeking sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Mr. 

Pope ultimately filed a stipulation of dismissal with prejudice pursuant to Federal Rule of 

Civil Procedure 41(a)(1)(A)(ii), and the federal district court filed an order dismissing Mr. 

Pope’s complaint with prejudice on April 9, 2013.

Malicious Prosecution Action

Following the dismissal of Mr. Pope’s federal complaint, Fit2Race, Mr. Lundgren, 

and Mr. Laursen (together, “the Fit2Race Plaintiffs”) filed a malicious prosecution complaint 

in state court on November 29, 2010, against Mr. Pope and the attorney who represented him 

in federal court, Phillip Leon Davidson. The Fit2Race Plaintiffs alleged that the assertions 

underlying the federal action were false and were known by Mr. Pope and Mr. Davidson to 

be false when the federal complaint was filed; that Mr. Pope and Mr. Davidson had no legal 

basis upon which to base the federal complaint; and that Mr. Pope and Mr. Davidson acted 

with malice and filed the federal complaint based on an improper motive.

Mr. Pope and Mr. Davidson each filed a motion for summary judgment, and the trial 

court granted both motions on January 29, 2015. The trial court addressed each element the 

Fit2Race Plaintiffs had to prove to prevail on their malicious prosecution claim and 

concluded that the Fit2Race Plaintiffs were unable to prevail as a matter of law. The court 
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wrote, in pertinent part:

 The Court finds that Plaintiffs cannot prove that the underlying federal 

action was brought without probable cause because the facts at issue 

were legally established by the Davidson County Eighth Circuit Court 

in its December 3, 2009 Final Decree in the matter of Janson Pope v. 

Sayuri Kinjo Pope, Davidson County Circuit Court No. 07-D-3642.

 The Court’s final decree was issued after discovery and a trial on the 

merits of the matter, and established adjudicated facts and conclusions. 

The adjudicated factual findings and conclusions of the Court establish 

that the allegations of the underlying complaint are based upon far more 

than probable cause. The Eighth Circuit Court found and concluded 

that [Ms. Pope] worked secretly with the Fit2Race Plaintiffs to set up 

an eBay site, which directly competed with Mr. Pope’s Trading Post’s 

eBay site. The Court further concluded that [Ms. Pope] and the 

Fit2Race Plaintiffs secretly took the Trading Post’s business name and 

even rerouted Mr. Pope’s mail. Finally, the Court concluded that [Ms. 

Pope], over the course of a three-year period, directed the Trading 

Post’s customers to Fit2Race and Tri-Depot websites and worked 

secretly with Plaintiffs both before and after Plaintiffs backed out of 

their deal to have Mr. Pope sell over-stock wetsuits. None of these 

findings of fact or conclusions of law were reversed on appeal.

 These conclusions and facts provided more than ample cause for filing 

the subsequent federal complaint in the underlying action. Given the 

Trial Court’s findings regarding the conduct of the Plaintiffs as it 

pertained to Mr. Pope’s business, it is clear that the Defendants and in 

particular Attorney Davidson were justified in believing that a good 

faith basis existed for asserting claims for civil conspiracy and 

intentional interference with Mr. Pope’s business relationships against 

the Plaintiffs.

 The fact that the underlying cause of action was ultimately dismissed 

voluntarily by Mr. Pope is irrelevant in terms of deciding whether 

probable cause to bring the lawsuit against the Plaintiffs existed. The 

test for establishing probable cause is whether Mr. Pope and Mr. 

Davidson, in his representation of Mr. Pope, had a reasonable belief 

that certain facts existed and under those facts a claim may be valid. . . . 

Clearly, the Court’s findings in the divorce proceedings demonstrate 
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that probable cause for the underlying action existed.

 [T]he final decree issued by the Trial Court in the Pope/[Pope] divorce 

proceedings demonstrates that Mr. Pope suffered a legally cognizable 

injury when Plaintiffs conspired to secretly and intentionally interfere 

with Mr. Pope’s business relations. Not only do the Trial Court’s 

findings negate the lack of probable cause element, they also negate the 

essential element of malice by showing that Attorney Davidson had a 

clear and justifiable reason for filing the underlying action on Mr. 

Pope’s behalf.

 Plaintiffs’ malicious prosecution claims must fail because the 

Tennessee Supreme Court, the Tennessee Court of Appeals, and the 

Sixth Circuit Court of Appeals have specifically held that a voluntary 

notice of dismissal with prejudice does not constitute a favorable 

termination without any discussion of the merits of the claim. 

(Footnote omitted.)

The Fit2Race Plaintiffs appeal the trial court’s granting of Mr. Pope’s and Mr. 

Davidson’s motions for summary judgment and the dismissal of their malicious prosecution 

claim. They contend the trial court erred (1) by relying on the final decree of the Popes’ 

divorce to provide probable cause for the allegations set forth in the federal complaint; (2) by 

failing to find that Mr. Pope and Mr. Davidson filed the federal complaint with “malice”; and 

(3) by finding that Mr. Pope’s voluntary dismissal did not constitute a “favorable 

termination” of the federal complaint.

II. STANDARD OF REVIEW

Summary judgment is an appropriate way of resolving a lawsuit when “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.” TENN.R.CIV. P. 56.04. A trial court’s ruling on a 

motion for summary judgment is reviewed de novo, with no presumption of correctness. Rye 

v. Women’s Care Ctr. of Memphis, MPLLC, __ S.W.3d __, 2015 WL 6457768, at *12 (Tenn. 

Oct. 26, 2015); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 2003).

Our Supreme Court has recently reviewed the standards that have guided the courts in 

deciding whether a party is entitled to summary judgment since 1971, when summary 

judgment first became available in Tennessee. Rye, 2015 WL 6457768, at *12. The Court 
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focused on the most recent standard that was enunciated in Hannan v. Alltel Publishing Co., 

270 S.W.3d 1 (Tenn. 2008), and determined that it “is incompatible with the history and text 

of Tennessee Rule 56 and has functioned in practice to frustrate the purposes for which 

summary judgment was intended—a rapid and inexpensive means of resolving issues and 

cases about which there is no genuine issue regarding material facts.” Id. at *19 (citing 

Bowman v. Henard, 547 S.W.2d 527, 529 (Tenn. 1977); Evco Corp. v. Ross, 528 S.W.2d 20, 

24 (Tenn. 1975)). Concluding that the standard set forth in Hannan is “unworkable and 

inconsistent with the history and text of Tennessee Rule 56,” the Court “fully embrace[d] the 

standards articulated in the Celotex trilogy.” Rye, 2015 WL 6457768, at *22; see Celotex 

Corp. v. Catrett, 477 U.S. 317, 322-27 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247-52 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

586-87 (1986) (describing summary judgment standard pursuant to Celotex trilogy). The Rye

Court wrote:

Our overruling of Hannan means that in Tennessee, as in the federal system, 

when the moving party does not bear the burden of proof at trial, the moving 

party may satisfy its burden of production either (1) by affirmatively negating 

an essential element of the nonmoving party’s claim or (2) by demonstrating 

that the nonmoving party’s evidence at the summary judgment stage is 

insufficient to establish the nonmoving party’s claim or defense. We reiterate 

that a moving party seeking summary judgment by attacking the nonmoving 

party’s evidence must do more than make a conclusory assertion that summary 

judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires 

the moving party to support its motion with “a separate concise statement of 

material facts as to which the moving party contends there is no genuine issue 

for trial.” Tenn. R. Civ. P. 56.03. . . . “[W]hen a motion for summary 

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],” to 

survive summary judgment, the nonmoving party “may not rest upon the mere 

allegations or denials of [its] pleading,” but must respond, and by affidavits or 

one of the other means provided in Tennessee Rule 56, “set forth specific 

facts” at the summary judgment stage “showing that there is a genuine issue 

for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than 

simply show that there is some metaphysical doubt as to the material facts.” 

Matsushita Elec. Indus. Co., 475 U.S. at 586. The nonmoving party must 

demonstrate the existence of specific facts in the record which could lead a 

rational trier of fact to find in favor of the nonmoving party.

Rye, 2015 WL 6457768, at *22 (emphasis in original). The Rye Court emphasized that “[t]he 

focus is on the evidence the nonmoving party comes forward with at the summary judgment 

stage, not on hypothetical evidence that theoretically could be adduced, despite the passage 
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of discovery deadlines, at a future trial.” Id.

III. ANALYSIS

In their malicious prosecution complaint, the Fit2Race Plaintiffs alleged that Mr. 

Pope, represented by Mr. Davidson, asserted a cause of action against the Fit2Race Plaintiffs 

and Ms. Pope for civil conspiracy to interfere with Mr. Pope’s business relationships. The 

Fit2Race Plaintiffs alleged that there was no probable cause to file the federal complaint; that 

Mr. Pope and Mr. Davidson acted with malice and had an improper motive to file the federal 

complaint; and that the federal action was finally terminated in their favor when Mr. Pope 

agreed to dismiss the action with prejudice pursuant to Federal Rule of Civil Procedure 41.

To succeed on a malicious prosecution cause of action, a plaintiff must prove an 

earlier action (1) was filed without probable cause, (2) was filed with malice, and (3) was 

terminated in favor of the plaintiff. Himmelfarb v. Allain, 380 S.W.3d 35, 38 (Tenn. 2012) 

(citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992)). The trial court determined 

that the Fit2Race Plaintiffs could not prevail on their malicious prosecution claim because 

they could not satisfy the first or third elements as against either Mr. Pope or Mr. Davidson.1

We will address the third element first. There is no dispute that Mr. Pope voluntarily 

dismissed his federal complaint against the Fit2Race Plaintiffs. Mr. Pope filed a Stipulation 

of Dismissal in which he stated that he “dismisses this action in its entirety and with 

prejudice” pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Rule 41(a)(1)(A)(ii) 

states that a plaintiff “may dismiss an action without a court order by filing a stipulation of 

dismissal signed by all parties who have appeared.” The stipulation Mr. Pope filed was 

signed by Mr. Pope, his attorney, the attorneys for the Fit2Race Plaintiffs, and the attorney 

for Ms. Pope. 

The Tennessee Supreme Court addressed the issue whether a voluntary dismissal of a 

lawsuit constitutes a favorable termination for the defendant(s) for purposes of satisfying the 

third element of a malicious prosecution cause of action in the case Himmelfarb v. Allain, 

380 S.W.3d 35 (Tenn. 2012). The underlying action in that case was a medical malpractice 

lawsuit that a patient dismissed upon learning that another party was responsible for leaving a 

guide wire in her vein during a medical procedure. Himmelfarb, 380 S.W.3d at 36. The 

doctors named in the initial malpractice action filed a malicious prosecution case against the 

patient once she dismissed her complaint against them, and the patient moved for summary 

 

1

The trial court found the Fit2Race Plaintiffs failed to prove the malice element against Mr. Davidson.

As to Mr. Pope, the court found that he did not affirmatively negate this element in his opposition to the 

Fit2Race Plaintiffs’ motion for summary judgment.
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judgment, arguing the doctors could not prove the malpractice action had been terminated in 

their favor. Id. at 36-37. 

The patient in Himmelfarb filed a notice of voluntary nonsuit pursuant to Tennessee 

Rule of Civil Procedure 41.01, which provides that a plaintiff has the right “to take a 

voluntary nonsuit to dismiss an action without prejudice by filing a written notice of 

dismissal at any time before the trial . . . .” TENN. R. CIV. P. 41.01(1). The Himmelfarb

Court considered, as a matter of first impression, whether a plaintiff’s voluntary nonsuit 

without prejudice constituted a favorable termination for purposes of a subsequent malicious 

prosecution claim. Himmelfarb, 380 S.W.3d at 38-40. After considering the effect of 

voluntary nonsuits in other jurisdictions, the Himmelfarb Court determined that “a voluntary 

nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a termination on the 

merits for the purposes of a malicious prosecution claim.” Id. at 38-41. The Court reasoned 

that the merits of a case are not considered when a case is dismissed on procedural grounds. 

Id. at 40-41 (citing Parrish v. Marquis, 172 S.W.3d 526, 532 (Tenn. 2005) (holding that a 

favorable termination was not reached when the case was dismissed because the statute of 

limitations had expired)).

The Himmelfarb Court wrote that public policy reasons support its decision not to 

treat a voluntary nonsuit without prejudice as a favorable termination. Id. at 41. As it 

explained, the public may be less willing to rely on the judicial system to settle disputes if 

there is a threat that a malicious prosecution action may be filed as a result. Id. The Court 

continued:

We decline to adopt a rule that would deter litigants with potentially valid 

claims from filing those claims because they are fearful of a subsequent 

malicious prosecution action. Nor do we wish to deter parties from dismissing 

their claims when a dismissal is the appropriate course of action.

Id. 

The Fit2Race Plaintiffs contend that the holding in Himmelfarb does not apply to this 

case because Mr. Pope dismissed his civil conspiracy action with prejudice, whereas the 

patient in Himmelfarb dismissed her medical malpractice case without prejudice. The 

Fit2Race Plaintiffs argue that we “must look to the underlying circumstances to determine 

whether or not the termination was favorable to Fit2Race.” In making this argument, the 

Fit2Race Plaintiffs appear to ignore the Himmelfarb Court’s express rejection of this 

approach. See Himmelfarb, 380 S.W.3d at 39-40 (“After reviewing the rationales employed 

in various jurisdictions, we decline to follow those jurisdictions . . . that examine the 

circumstances under which a voluntary nonsuit is taken.”). We conclude that the Himmelfarb
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Court’s rationale applies equally whether a case is dismissed with or without prejudice. Rule 

41.01(2) of the Tennessee Rules of Civil Procedure provides that if a plaintiff dismisses an 

action “based on or including the same claim” twice, a notice of dismissal “operates as an 

adjudication upon the merits.” TENN. R. CIV. P. 41.01(2); see FED. R. CIV. P. 41(a)(1)(B) 

(providing “if the plaintiff previously dismissed any federal- or state-court action based on or 

including the same claim, a notice of dismissal operates as an adjudication on the merits”). 

However, the Fit2Race Plaintiffs do not contend that Mr. Pope has previously dismissed an 

action against them based on or including the same claims that Mr. Pope included in his 

federal complaint. Thus, we hold that Mr. Pope’s dismissal of his federal action does not 

constitute an adjudication on the merits of that claim, and the Fit2Race Plaintiffs cannot 

establish, as a matter of law, that the federal complaint was a favorable termination for 

purposes of their malicious prosecution claim. 

Because we conclude that Mr. Pope’s voluntary dismissal of the federal complaint is 

not a favorable termination on the merits, the Fit2Race Plaintiffs cannot prove an essential 

element of their malicious prosecution claim, and the other issues the Fit2Race Plaintiffs 

raise on appeal are pretermitted.

IV. CONCLUSION

The trial court’s judgment granting Mr. Pope’s and Mr. Davidson’s motions for 

summary judgment and dismissing the Fit2Race Plaintiffs’ malicious prosecution claim is 

affirmed. Costs of this appeal shall be taxed to the appellants herein, Fit2Race, Inc., Stefan 

Laursen, and Paul Lundgren, for which execution shall issue if necessary.

_________________________

ANDY D. BENNETT, JUDGE