IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 30, 2002 Session

LARRY E. PARRISH, ET AL. v. ROBERT S. MARQUIS, ET AL.

 Appeal from the Circuit Court for Knox County

No. 1-701-01 Dale C. Workman, Judge

FILED JUNE 8, 2004

No. E2004-00875-COA-RM-CV

In this malicious prosecution case the Appellants, Larry E. Parrish and Larry E. Parrish, P.C.,

contend that the Knox County Circuit Court erred in granting motions for summary judgment filed

by the Appellees, Robert S. Marquis and Ronald C. Koksal. We reverse the Circuit Court’s

judgment of dismissal as to Mr. Koksal and we affirm the Circuit Court’s judgment of dismissal as

to Mr. Marquis on alternative grounds.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part,

Reversed in Part and Remanded

HERSCHEL P. FRANKS,J., delivered the opinion of the court, in which Gary R. Wade, Sp. J., joined.

HOUSTON M. GODDARD, P.J., did not participate.

John J. Mulrooney, Memphis, Tennessee, for the Appellants, Larry E. Parrish and Larry E. Parrish,

P.C. 

Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for the Appellee, Ronald C.

Koksal.

Frank Q. Vettori, Knoxville, Tennessee, for the Appellee, Robert S. Marquis.

OPINION

In 1973 Lillie Mae Cain formed the Cain Partnership, Ltd. (hereinafter “the Partnership”).

Ms. Cain’s three daughters (hereinafter “the Cain sisters”), Jennie B. Cain Corum Miller (hereinafter

“Ms. Miller”), Mary Hellen Cain Harkins, and Geneva Cain Anderson, participated as the limited

partners. Project Development Corporation, an entity wholly owned by Oliver Smith, was named

the general partner. 
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Upon formation of the Partnership, Ms. Cain executed a long term master lease pursuant to

which she leased commercial real property, owned by her, to the Partnership at below market rates.

The Partnership functioned to sub-lease this property to others for profit. Upon the death of Ms.

Cain in 1973 the subject real property and the master lease became the corpus of a trust (hereinafter

the “Trust”) of which the Cain sisters were the primary beneficiaries.

After Ms. Cain’s death the Cain sisters determined that Oliver Smith was not handling

Partnership business to their satisfaction and, in 1982, they retained the Appellants, attorney Larry

E. Parrish and Larry E. Parrish, P.C. (hereinafter referred to collectively as “Mr. Parrish”), to

represent them in their capacity as limited partners of the Partnership and to assist them in

terminating Oliver Smith’s involvement with the Partnership. 

In March of 1989, Mr. Parrish negotiated a settlement which ended Oliver Smith’s

involvement with the Partnership and, at the request of the Cain sisters, Mr. Parrish agreed to serve

as counsel for, and president of, a new general partner of the Partnership designated General Partner

of Cain, Inc. Additionally, in accordance with a plan formulated to increase revenue to the

Partnership, the Cain sisters instructed Mr. Parrish to begin legal proceedings against tenants who

had breached their leases with the Partnership. 

By the latter part of 1990 the Partnership’s resources were exceeded by the cost of funding

the litigation being pursued by Mr. Parrish against defaulting tenants and, in August of that year, the

Partnership and the Trust agreed that the master lease would be surrendered to the Trust no later than

April of 1993, at which time the Partnership would effectively cease to exist. 

Appellee Robert S. Marquis, who was employed by Ms. Miller as her personal attorney at

all times pertinent hereto, attests that in the spring of 1993 “it became my opinion that Parrish had

breached his fiduciary duty and had negligently handled litigation on behalf of Mrs. Miller.” Mr.

Marquis further attests that he advised Ms. Miller “that she had a potential cause of action, either

individually or as a limited partner”, and that he encouraged her to contact the Appellee, attorney

Ronald C. Koksal, for advice in that regard. Ms. Miller then conferred with Mr. Koksal and retained

him to represent her with regard to claims she might have against Mr. Parrish.

On July 6, 1993, Mr. Koksal filed a complaint on behalf of Ms. Miller in the Knox County

Circuit Court. The complaint seeks damages for professional malpractice and names Mr. Parrish and

General Partner of Cain, Inc. as defendants. The complaint asserts, inter alia, that, in March of 1982,

Mr. Parrish entered into an attorney/client relationship with Ms. Miller, representing her “both in an

individual capacity and as a limited partner of The Cain Partnership, Ltd.” and that, in this capacity,

Ms. Miller “placed reliance upon Parrish as to his advice and as to the actions taken by him.” The

complaint references the previously noted litigation undertaken by Mr. Parrish with respect to

defaulting lessees and alleges that Mr. Parrish “did not advise regarding the scope, extent, and legal

issues involved but instead, he began a course of cost-consuming and inefficient litigation.” The

complaint further charges that the defendants have caused Ms. Miller “loss of substantial monies”

by reason of their breach of fiduciary duty to her, their negligent handling of legal matters, their
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violation of the an implied duty of good faith and fair dealing, and their failure “to act as reasonably

prudent persons within the meaning of the law and under the circumstances.”

On July 30, 1996, the Circuit Court entered an order and adopted memorandum opinion as

to the malpractice complaint granting motions to dismiss and/or for summary judgment filed by Mr.

Parrish and General Partner of Cain, Inc. The memorandum opinion provides as follows:

In summary the Court concludes that (1) plaintiff has standing to sue

defendants in this case only as a limited partner asserting a derivative cause of

action; (2) she has not stated a claim for which relief can be granted as a

derivative action, and (3) any action against the Parrish defendants for legal

malpractice is barred by the one year Statute of Limitations, TCA 28-3-104(a)(2).

Therefore, defendants’ Motions to Dismiss and/or for Summary Judgment

are sustained at plaintiff’s cost. 

On July 15, 1997, Mr. Parrish filed a complaint in the Shelby County Circuit Court against

Mr. Marquis and Mr. Koksal and their respective law firms asserting that the malpractice suit filed

against him by Ms. Miller on July 6, 1993, constituted a malicious prosecution by reason of which

Mr. Parrish sustained compensable damages. Thereafter, motions for summary judgment filed by

Mr. Marquis and Mr. Koksal were granted by the Circuit Court and Mr. Parrish’s complaint was

dismissed. Upon appeal to our Court the judgment of the Circuit Court was affirmed, but on the

alternative ground of improper venue. See, Parrish v. Marquis, No. W1999-02629-COA-R3-CV,

2000 Tenn. App. LEXIS 509 (Tenn. Ct. App. July 31, 2000). 

On November 8, 2001, Mr. Parrish re-filed the complaint for malicious prosecution in the

Knox County Circuit Court. The complaint alleges, inter alia, that Mr. Marquis and Mr. Koksal

aided and abetted each other in filing the malpractice complaint and that they filed such complaint

with malice. The complaint further alleges that Mr. Marquis and Mr. Koksal “failed to conduct a

reasonable preprosecution investigation” and “lacked probable cause to believe that [Mr. Parrish]

had engaged in legal malpractice against Ms. Miller.”

Thereafter, Mr. Marquisfiled a motion for summary judgment on the grounds that (1) he did

not act without probable cause or with malice; (2) he was neither the attorney of record nor plaintiff

in the malpractice suit; (3) the malpractice suit was not terminated in favor of Mr. Parrish; and (4)

the malicious prosecution suit was not timely filed under the applicable statute of limitations. Mr.

Koksal also filed a motion for summary judgment on the groundsthat there had not been a favorable

termination of the malpractice action and themalicious prosecution suit was barred by the applicable

statute of limitations. 

On April 12, 2002, the Circuit Court entered its order granting Mr. Koksal’s motion for

summary judgment upon the ground that the complaint against him was not re-filed within the time

allotted under the one year saving statute set forth at Tenn. Code Ann. § 28-1-105. By separate
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order entered April 18, 2002, Mr. Marquis’s motion for summary judgment was granted on the same

ground and upon the further grounds that Mr. Marquis “did not ‘bring’ the underlying cause of action

since Attorney Ron Koksal represented the plaintiff in the underlying cause of action and any

possible wrongdoing of Marquis would be barred by the doctrine of intervening cause due to the

underlying plaintiff’s representation by said Koksal.” Both motions for summary judgment were

overruled as to all other grounds asserted. Thereafter, Mr. Parrish filed notice of his appeal of these

two orders. 

As set forth in Larry E. Parrish, et al. v. Robert S. Marquis, et al., No. E2002-01131-COACV, 2002 Tenn. App. LEXIS 918 (Tenn. Ct. App. December 30, 2002), appl. perm. appeal granted

July 7, 2003, we affirmed the Circuit Court’s holding that Mr. Parrish failed to re-file his suit for

malicious prosecution within the time allowed under Tenn. Code Ann. § 28-1-105. However, upon

further appeal to the Supreme Court our judgment was reversed and the case was remanded to us for

consideration of issues which we had previously pretermitted. See Parrish v. Marquis, No. E2002-

01131-SC-R11-CV, 2004 Tenn. LEXIS 250 (Tenn. March 19, 2004). Those issues, as restated, are

as follows:

1) Did the dismissal of the malpractice suit against Mr. Parrish constitute a “favorable

termination” such as is required in an action for malicious prosecution?

2) Did the complaint for malicious prosecution allege sufficient facts to support a finding that

Mr. Marquis and Mr. Koksal conspired to file the malpractice suit?

3) Did the Circuit Court err in dismissing the complaint for malicious prosecution on the

grounds that Mr. Marquis did not “bring” the malpractice suit and Mr. Koksal’s representation of

Ms. Miller in that suit relieved Mr. Marquis of liability for malicious prosecution under the doctrine

of intervening cause?

4) Should Mr. Marquis’s motion for summary judgment have been granted on the additional

grounds that Mr. Marquis acted with probable cause and without malice?

In Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000) the Tennessee Supreme

Court set forth the standard of review appropriate to summary judgments as follows:

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 [423]at 426;

Byrd v. Hall, 847 S.W.2d [208] at 210-211. 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). 
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Because a trial court's decision to grant a motion for summary judgment is solely a matter

of law, it is not entitled to a presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d 23

(Tenn.1995). In determining whether such a decision is correct we must review the record to

determine if the requirements of Rule 56.04 of the Tennessee Rules of Civil Procedure have been

satisfied in that "there is no genuine issue as to anymaterial fact and that the moving party is entitled

to a judgment as a matter of law."

The first issue we address is whether the dismissal of the malpractice suit against Mr. Parrish

constitutes a “favorable termination” such as is required to support an action for malicious

prosecution.

In Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-248 (Tenn. 1992), the Supreme

Court of this state noted as follows regarding elements necessary to an action for malicious

prosecution: 

In order to establish the essential elements of malicious prosecution , a

plaintiff must prove that (1) a prior suit or judicial proceeding was instituted

without probable cause, (2) defendant brought such prior action with malice, and

(3) the prior action was finally terminated in plaintiff’s favor. (Emphasis added)

(Citations omitted.)

As we have acknowledged, the Circuit Court’s memorandum opinion, adopted by order

entered July 3, 1996, dismisses the malpractice action against Mr. Parrish for two reasons - 1)

because Ms. Miller did not have standing to sue Mr. Parrish other than in her capacity as a limited

partner asserting a derivative cause of action and she did not sue in that capacity and 2) because the

malpractice action was barred by the applicable statute of limitations. The opinion also sets forth

the following findings of the Court:

If plaintiff is suing the Parrish defendants for damages for some injury

personal to her as a limited partner, then it is necessary, in the opinion of the

Court, that plaintiff show that a relationship existed between her and the Parrish

defendants such that those defendants owed her a duty which was breached to her

detriment. Presumably in this case that relationship was one of attorney and

client. However, the record showsthat at all times material to this case the Parrish

defendants represented the partnership, not the plaintiff. Furthermore, the record

shows that at such times the plaintiff was represented by counsel of her own

choosing, and there is no genuine issue of material fact about the absence of an

attorney-client relationship between plaintiff and the Parrish defendants. Hence,

if plaintiff’s suit is a personal one, or opposed to a derivative action, the Parrish

defendants’ Motion for Summary Judgment is well taken on the ground that

plaintiff has failed to state a claim on which relief can be granted.
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 Mr. Koksal contends that in order to qualify as a favorable termination for purposes of an

action for malicious prosecution such termination must be on the merits in favor of the defendant in

the prior suit - that it must reflect the defendant’s non-responsibility for the misconduct charged. Mr.

Marquis agrees, arguing that Tennessee case law provides “that unless there is an indication that the

underlying defendant is not liable, there is no termination in favor of the plaintiff.” Both Mr. Koksal

and Mr. Marquis maintain that, based upon the grounds set forth by the Circuit Court in support of

its dismissal of the underlying malpractice suit, such dismissal was not a favorable termination of the

type that is required to sustain a malpractice action, but instead was a dismissal based on purely

procedural grounds.

Mr. Parrish argues that any final termination in his favor which is not the result of a

compromise satisfies the “favorable termination” element necessary to a malicious prosecution suit.

In support of this argument he cites Christian v. Lapidus, 833 S.W.2d 71 (Tenn. 1992). 

In Christian a complaint was filed in the district court charging the defendants in that action

with violation of the RacketeerInfluenced and Corrupt Organization (RICO) statutes. The complaint

was subsequently amended and, as amended, no longer named, or contained allegations against, those

particular defendants. Thereafter, the district court dismissed such defendants from the RICO action

because the original suit against them was not prosecuted and because the amended complaint recited

that it superseded the original complaint. The defendants then filed suit for malicious prosecution.

The malicious prosecution suit, filed over one year after the amendment of the original complaint,

was dismissed by the court as time barred under T.C.A. § 28-3-104(a)(1) which requires that an action

for malicious prosecution be commenced within one year after the cause of action accrued. An action

for malicious prosecution accrues when the underlying suit is finally terminated in the original

defendant’s favor.

The Supreme Court found that the legal effect of the amendment of the complaint was to

remove the defendants from the suit and was an abandonment of the RICO action against them. The

Court held that this abandonment constituted a final and favorable termination and, therefore, the

cause of action for malicious prosecution accrued from the time of the amendment of the original

complaint. In reaching this conclusion the Court discussed the “favorable termination” element

essential to establishing an action for malicious prosecution as follows at page 74:

The “favorable” component isrequired because a judgment in favor of the

original plaintiff is conclusive of probable cause, unless procured by fraud. See

Sloan v. McCracken, 75 Tenn. 626, 627 (1881). However, courts’ definitions of

“favorable” differ:

The first, and most rigid [approach], requires that the action have gone

to judgment resulting in a verdict of acquittal, in the criminal context, or

no liability, in the civil context. The second permits [an action for

malicious prosecution] even if the underlying action was merely

withdrawn so long as the plaintiff can demonstrate that the withdrawal
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took place under circumstances creating an inference that the plaintiff

was innocent, in the criminal context, or not liable, in the civil context.

The third approach, while nominally adhering to the “favorable

termination” requirement, in the sense that any outcome other than a

finding of guilt or liability is favorable to the accused party, permits a

malicious prosecution or vexatious suit action whenever the underlying

proceeding was abandoned or withdrawn without consideration, that is,

withdrawn without either a plea bargain or a settlement favoring the

party originating the action.

Delaurentis v. City of New Haven, 220 Conn. 225, 250, 597 A.2d 807, 820 (1991)

(emphasis in original) (footnotes omitted).

We reject the first approach, requiring a final judgment on the merits,

because it permits a wrongdoer to escape liability for institution of a malicious

prosecution simply by having the suit dismissed prior to trial. With regard to the

second approach, requiring plaintiff to demonstrate an inference of innocence, we

agree with the DeLaurentis court that this demonstration more properly relates to

plaintiff’s burden of proving absence of probable cause. See id. at 251, 597 A.2d

at 820. Instead, we are persuaded, and now hold, that abandonment or withdrawal

of an allegedly malicious prosecution is sufficient to establish a final and

favorable termination so long as such abandonment or withdrawal was not

accompanied by a compromise or settlement, or accomplished in order to refile

the action in another forum. Accord Restatement (Second) of Torts §§ 674

comment j, 660 (1977). 

 

We construe the Court’s language in Christian to mean that establishment of the “favorable

termination” element in an action formalicious prosecution does not demand that the underlying suit

resulted either in a judgment on the merits in the plaintiff’s favor or in an outcome which otherwise

demonstrates the plaintiff’s non-liability. The argument of Mr. Koksal and Mr. Marquis to the effect

that the termination must reflect on the merits in a way that indicates the plaintiff’s non-liability

appears to have been rejected by the Court upon the rationale, in accordance with DeLaurentis , that

the demonstration of an inference of innocence (or non-liability) “more properly relates to plaintiff’s

burden of proving absence of probable cause.” Citing Sloan, the Court recognizes that, unless

procured by fraud, a termination in favor of the original plaintiff would establish that there was

probable cause for filing the underlying suit and, therefore, termination of the underlying suit must

be in favor of the original defendant. Given this rationale for the “favorable termination”

requirement, it is not necessary that such termination be a judgment on the merits in favor of the

original defendant nor is it necessary that the termination demonstrate an inference of the original

defendant’s innocence or non-liability. In accord with our construction of Christian, so long as the

outcome of the underlying suit constitutes a termination which was in favor of the original defendant

as opposed to the original plaintiff and “was not accompanied by a compromise or settlement, or
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accomplished in orderto refile the action in another forum”, ibid at page 74, it will suffice to support

an action for malicious prosecution.

Mr. Koksal and Mr. Marquis cite three cases in support of their argument that in a malicious

prosecution suit the underlying termination must indicate the non-liability ofthe original defendant -

Sewell v. Par Cable, Inc., 1988 Tenn. App. LEXIS 657, (Tenn. Ct. App. Oct. 26, 1988), Spurlock

v. Pioneer Credit Co., 1991 Tenn. App. LEXIS 249 (Tenn. Ct. App. April 11, 1991), appl. perm.

appeal denied Sept. 9, 1991, and Foshee v. Southern Finance and Thrift Corp., 967 S.W.2d 817

(Tenn. Ct. App. 1997). In light of our analysis of Christian, we do not deem these cases to be

controlling authority to the extent that they advocate a definition of “favorable termination” which

requires that the outcome of the underlying suit demonstrate the innocence or non-liability of the

original defendant. 

It is our determination that the Circuit Court’s dismissal of the malpractice suit against Mr.

Parrish and the Parrish firm is a “favorable termination” for purposes of the present action for

malicious prosecution and argument to the contrary is without merit.

The remaining issues presented in this appeal pertain to the propriety of Mr. Marquis’s

inclusion as a defendant in the suit for malicious prosecution.

The first issue we address in this regard is raised by Mr. Marquis and queries whether the

Circuit Court erred in holding that the complaint for malicious prosecution alleges sufficient facts

to support the legal conclusion of conspiracy between Mr. Marquis and Mr. Koksal. We are

somewhat perplexed by the fact that this issue is raised by Mr. Marquis. Furthermore, our review

of the record does not show that the Circuit Court held that Mr. Parrish’s complaint alleged

insufficient facts to support the legal conclusion of conspiracy between Mr. Marquis and Mr. Koksal.

The Court’s order granting Mr. Marquis’s motion for summary judgment and dismissing the

malicious prosecution action as to him provides in pertinent part as follows:

It is further ORDERED, ADJUDGED and DECREED that the Motion for

Summary Judgment be and the same hereby is granted on the grounds that Robert

S. Marquis did not “bring” the underlying cause of action since Attorney Ron

Koksal represented the plaintiff in the underlying cause of action and any possible

wrongdoing of Marquis would be barred by the doctrine of intervening cause due

to the underlying plaintiff’s representation by said Koksal; and upon the ground

that the Court of Appeals decision in the original malicious prosecution case filed

byplaintiff Parrish against Marquis and others was entered on July 31, 2000, more

than one year before this suit was filed and therefore the one year saving statute

contained in T.C.A. § 28-1-115 had expired before the filing of this case which

occurred on November 8, 2001. The court overruled defendant Marquis’ Motion

on the other grounds contained therein.
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There is nothing in this order which we construe to be a holding that the malicious complaint

failed to allege sufficient facts to support charges of conspiracy. Although the matter of civil

conspiracy was discussed at the hearing on Mr. Marquis’s motion for summary judgment on March

28, 2002, we also find nothing in the Court’s statements at that hearing which would constitute a

holding that the malicious prosecution complaint failed to allege sufficient facts to support a

conspiracy argument. Rather, it is our determination that the Court concluded that, under the

intervening cause doctrine, Mr. Koksal’s representation of Ms. Miller protected Mr. Marquis from

suit for conspiring to engage in the malicious prosecution of Mr. Parrish. In reaching that conclusion

the Court recognized that Mr. Marquis’smotion for summaryjudgment was urged on three grounds -

that there was not a favorable termination of the underlying case, that the malicious prosecution

action is barred under the statute of limitations and that Mr. Marquis is protected under the

intervening cause doctrine. We note the Court’s comments with respect to the last of these as

follows:

Mr. Marquis relies upon the intervening cause or Mr. Koksal’s duty to

represent the client, review, become familiar with, before ever telling her to file

the lawsuit, and that obviates any liability he has. 

The response from the plaintiff is different in that he says, Well, that may

be true, but ... In this case Mr. Marquis was the original one to say that there was

wrongdoing her, breach of fiduciary duty, and it’s over litigating. Mr. Koksal said

in the previous affidavit filed in the original Parrish v. Marquis filed in Shelby

County, that he relied upon his opinion as to breach of fiduciary duty.

Admittedly, there are situations where I think a party, a person, who may

be an attorney, who is not an attorney of record in a case, may be conspired with

or be so involved with a party who is a party of record in the case, that that

attorney can be sued for that litigation.

But I think that has nothing to do with them being an attorney. I think that

has to be a civil conspiracy situation, and for that reason, the Court would grant

this motion on that ground, that there is an intervening cause, and Mr. Marquis

cannot be sued in this case in which he was not attorney of record. (emphasis

added)

Having determined that the Circuit Court did not hold that the complaint for malicious

prosecution failed to allege sufficient facts to support the legal conclusion of conspiracy we decline

to address the issue of whether or not such a holding would have been proper.

The next issue presented for our review is whether the Circuit Court erred in dismissing the

malicious prosecution suit as to Mr. Marquis upon the grounds that Mr. Marquis did not “bring” the

underlying malpractice action and that Mr. Koksal’s representation of Ms. Miller in the malpractice

action protects Mr. Marquis from liability under the doctrine of intervening cause.
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Mr. Marquis asserts that the Circuit Court’s holding is proper because he did not “bring” the

malpractice suit but merely referred Ms. Miller to Mr. Koksal for advice as to whether she did have

a cause of action against Mr. Parrish, and then cooperated with Mr. Koksal’s investigation which

included discussing the facts of the case with Mr. Koksal and allowing him to review Ms. Miller’s

file. Mr. Marquis cites Black’s Law Dictionary (6 Ed. 1991) for the proposition that “to bring an th

action or suit has a customary meaning at law, and refers to the initiation of legal proceedings in a

suit.” He further notes that under the Tennessee Rules of Civil Procedure civil actions are

commenced by filing a complaint signed by the attorney of record who thereby certifies that to the

best of his or her knowledge, information and belief, based upon reasonable inquiry, the claim

asserted is warranted by law and supported by evidence. Mr. Marquis asserts that Mr. Koksal was

Ms. Miller’s attorney of record in initiating the malpractice suit and, therefore, he, not Mr. Marquis,

bears responsibility for that suit. Mr. Marquis cites Wykle v. Valley Fidelity Bank & Trust Company,

658 S.W.2d 96 (Tenn. Ct. App. 1983), wherein we indicated that before one can be liable for

malicious prosecution, one must do something more than merely give information. Mr. Marquis

further notes that in Wykle at page 99 we cited with favor the Restatement of the Law of Torts, 383-

384, Section 653 as follows:

One who gives to a third person, whether public official or private person,

information of another’s supposed criminal conduct or even accuses such other

thereof, causes the institution of such proceedings as are brought by the third

person. The giving of the information, however, does not constitute a

procurement of the proceedings which the third person initiates thereon if it is left

to the uncontrolled choice of the third person to bring the proceedings or not as

he may see fit. 

Mr. Marquis asserts that Mr. Koksal had the ‘uncontrolled choice’ of whether to bring the

proceedings or not.

Mr. Parrish argues that the Circuit Court erred in applying the intervening cause doctrine in

this case because malicious prosecution is an intentional tort and the intervening cause doctrine is

only applicable to torts based on negligence. Mr. Parrish also argues that the fact that Mr. Marquis

was not the attorney of record in the malpractice action does not relieve him of liability for malicious

prosecution. 

In Waste Management, Inc. of Tennessee v. South Central Bell Telephone Company , 15

S.W.3d 425, 432 (Tenn. Ct. App. 1997) we described the intervening cause doctrine as follows:

The intervening cause doctrine is a common-law liability shifting device. It

provides that a negligent actor will be relieved from liability when a new,

independent and unforseen cause intervenes to produce a result that could not

have been foreseen. The doctrine only applies when (1) the intervening act was

sufficient by itself to cause the injury, (2) the intervening act was not reasonably
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foreseeable by the negligent actor, and (3) the intervening act was not a normal

response to the original negligent actor’s conduct. The customary explanation of

the doctrine is that an independent, intervening cause breaks the chain of legal

causation between the original actor’s conduct and the eventual injury. (citations

omitted) (emphasis added).

It does not appear that the courts in ourstate have specifically addressed the issue of whether

the intervening cause doctrine is applicable to an intentional tort. However, we note the Court’s

reference to “the negligent actor” in Waste Management and we further note that the Restatement

of Torts, 2d §441(1) defines “intervening force” as “one which actively operates in producing harm

to another after the actor’s negligent act or omission has been committed.” Also, as the Court

recognizes in Waste Management the intervening cause doctrine operates to protect from

unforseeable results. Am. Jur.2d Torts § 25, 624-625 provides:

As to willful acts, persons may be held liable for the consequences that flow

therefrom as a proximate cause, whether or not those consequences could have

been foreseen or anticipated. In such cases, intervening causes are especially

likely not to preclude liability of the wrongdoer.

We are inclined to conclude that the doctrine of intervening cause is not properly applied to

an intentional tort such as malicious prosecution. However, we find alternative grounds for

affirming the Circuit Court’s dismissal of Mr. Parrish’s complaint against Mr. Marquis as set forth

hereinafter.

 In support of his argument that Mr. Marquis is not relieved of liability merely by reason of

the fact that he was not Ms. Miller’s attorney of record in the malpractice case, Mr. Parrish cites

Mauldin v. Ball, 58 S.W. 248 (Tenn. 1900).

In Mauldin a warrant was issued for the arrest of the plaintiff upon allegations that he had

obtained money under false pretenses. The warrant was sworn out by an individual identified as

“White.” The action for malicious prosecution charged that the defendant procured White to

commence and continue the prosecution of the plaintiff. On appeal our Supreme Court found that

the trial court had erred in its instructions to the jury as follows at page 250:

It is said that the court erred in charging the jury, in substance, that if they found

that [the defendant] induced White to sue out the warrant, and was the moving

spirit in the prosecution, and used White to protect himself, then he could be held

to the same extent as White could, but, unless he was shown by the evidence to

have been the moving cause of the prosecution, there could be no recovery against

him. On the same feature of the case the court declined to charge, on request, that

if [the defendant] actively ratified what White did, and aided and abetted in the

prosecution, [the defendant] would be liable to the same extent as White for

bringing such prosecution. We think the court erred in this feature, and that the
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charge as given was incorrect, and the charge asked should have been given, and

is an accurate exposition of the true rule in such cases.

Our construction of the Supreme Court’s ruling in Mauldin compels us to the conclusion that,

even if Mr. Marquis was not Ms. Miller’s attorney of record in the malpractice suit and did not bring

that suit against Mr. Parrish, he may yet be liable for malicious prosecution upon proof that he

“ratified” the malpractice suit and “aided and abetted” Mr. Koksal in its prosecution. Although we

find no evidence in the record from which a jury could reasonably conclude other than that, vis a’

vis Mr. Marquis, Mr. Koksal had the uncontrolled choice, of whether to file the malpractice suit,

summary judgment in favor of Mr. Marquis is still inappropriate unless there is also no evidence in

the record from which a jury could reasonably conclude that Mr. Marquis ratified the suit and aided

and abetted in its prosecution.

Mr. Parrish’s argument that Mr. Marquis ratified the malpractice action and aided and abetted

Mr. Koksal in its prosecution is based upon the following assertions:

1) “Marquis formed the opinion ‘that Parrish had breached his fiduciary duty and had

negligently handled litigation on behalf of Mrs. Miller,’ and then advised Mrs. Miller of his opinion

and encouraged her to pursue legal action against Parrish by referring her to Koksal for that

purpose.”

2) “It was the opinion of Marquis that was the basis of the prosecution of Parrish for legal

malpractice.”

3) “Marquis conferred, pre-prosecution, with Koksal, answering Koksal’s questions regarding

the legal malpractice claim against Parrish.”

4) “Koksal prepared the complaint, which Marquis reviewed pre-filing for ‘factual errors’.”

5) “Marquis attended an in-court hearing [in the malpractice suit] with Koksal and ‘conferred

and consulted with Koksal’ during his in-court presentation.”

6) “After Parrish moved to dismissthe malpractice suit [on the ground that it was time barred

under the statute of limitations], Marquis provided an affidavit, which Koksal filed, that was drafted

to avoid the statute of limitations bar and the trial court rejected because it was ‘contrary to extensive

sworn testimony given by ‘Mrs. Miller in Marquis’ presence in Partnership proceedings.”

Mr. Marquis’s affidavit of July 20, 1995, is referenced as evidence supporting the first of the

above assertions. The affidavit states that “it became [Marquis’s] opinion that Parrish had breached

his fiduciary duty and had negligently handled litigation on behalf of Mrs. Miller.” However, the

affidavit does not state that Mr. Marquis “encouraged [Ms. Miller] to pursue legal action”, but only

that he “advised Mrs. Miller that she had a potential cause of action, both individually and

potentially as a limited partner, and encouraged her to contact Ronald C. Koksal to advise her in that
The affidavit referred to is apparently Mr. Marquis’s affidavit of July 20, 1995. 1

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regard.” It is our determination that the only reasonable construction of these statements is that,

based upon his opinion that Mr. Parrish breached his fiduciary duty and negligently handled

litigation on behalf of Ms. Miller, Mr. Marquis concluded that Ms. Miller might have a cause of

action (the cause of action was only “potential”) against Mr. Parrish. By referring Ms. Miller to Mr.

Koksal for advice as to whether, in Mr. Koksal’s opinion, she in fact did have a cause of action, Mr.

Marquis thereby absolved himself of responsibility for any decision as to whether Ms. Miller should

file the malpractice suit. 

Mr. Parrish’s next assertion is that the “basis” of the malpractice lawsuit was Mr. Marquis’s

opinion regardingMr. Parrish’s alleged breach of fiduciary duty and negligent handling of litigation.

The affidavit of Mr. Koksal signed on September 4, 1998, is offered in support of this assertion. We

disagree that any statement made by Mr. Koksal in this affidavit constitutes evidence that the

malpractice action was based upon the opinion of Mr. Marquis. We quote Mr. Koksal’s affidavit

in pertinent part as follows:

3. The underlying Knox County case, Jennie B. Cain Carum Miller v. Larry E.

Parrish, et al, was referred to me by Robert Marquis, a Knoxville attorney. Mr.

Marquis had represented Ms. Miller on various matters for a number of years. As

stated in his affidavit filed in the underlying case, Mr. Marquis became aware and

formed the opinion that Ms. Miller had a potential cause of action against the

defendants in the underlying action, he so advised Ms. Miller, and he encouraged

her to contact me in that regard. In fact, it was his opinion that Mr. Parrish had

breached his fiduciary duty and had negligently handled litigation on behalf of Ms.

Miller. A copy of that affidavit is attached hereto as Exhibit B.1

4. At the time the suit was initiated and at all times during its pendency,

I believed in the existence of the facts upon which the claims were based and

further believed that under those facts a claim could be valid under applicable law.

I feel that belief was a reasonable one.

In support of his allegation that Mr. Marquis’s opinion was the basis of the malpractice suit

Mr. Parrish specifically references the statement that “[i]n fact, it was [Mr. Marquis’s] opinion that

Mr. Parrish had breached hisfiduciary duty and had negligently handled litigation on behalf of Mrs.

Miller.” We do not agree that a jury could reasonably infer from Mr. Koksal’s mere

acknowledgment of this opinion that he filed the suit based upon it. In the very next paragraph Mr.

Koksal states that it was his own belief that facts existed which supported a valid claim under the

law. It is clear from Mr. Koksal’s affidavit that his decision to commence the malpractice action was

based upon his own assessment of the facts and not upon the opinion of Mr. Marquis. At most, Mr.

Koksal’s attestations regarding Mr. Marquis’s opinion merely describe how Mr. Koksal came to be

involved in the case and serve to confirm the validity of Mr. Koksal’s conclusion by showing that

another attorney separately arrived at an opinion consistent with such conclusion. We find nothing
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in this affidavit which could be reasonably interpreted as evidence that the malpractice action was

commenced based upon the opinion of Mr. Marquis. 

The third assertion of Mr. Parrish is that Mr. Marquis conferred with Mr. Koksal before the

malpractice suit was prosecuted and that Mr. Marquis answered Mr. Koksal’s questions regarding

the malpractice claims. In support of this assertion Mr. Parrish references Mr. Marquis’s November

3, 1998, response to interrogatories. The specific interrogatory and answer cited by Mr. Parrish

provide as follows:

INTERROGATORY NO. 3: Describe the factual investigation defendant

performed before filing the Complaint in the Knox County lawsuit which led

defendant to conclude that probable cause existed to believe that LarryE. Parrish,

Larry E. Parrish, P.C., and General Partner of Cain, Inc. were liable on theories

pled against them in that Complaint.

ANSWER: I allowed Ron Koksal and one of his associates with the firm of

Butler, Vines & Babb to review all of my files connected with the litigation

involving Mr. Parrish. I also answered various questions (I recall that they were

verbal rather than written) which Mr. Koksal had in investigating the matter. 

There is nothing in this answer from which a jury could reasonably infer that Mr. Marquis

ratified the filing of the malpractice suit or aided and abetted Mr. Koksal in its prosecution. The

limited conclusion that a jury could reasonably draw from this evidence is that, prior to institution

of the malpractice suit, Mr. Koksal conducted an investigation which included the review of

information in possession of Mr. Marquis and that Mr. Marquis answered questions posed by Mr.

Koksal. 

The next assertion of Mr. Parrish - that Mr. Marquis reviewed the malpractice complaint for

factual errors - also derives from Mr. Marquis’s responses to interrogatories filed on November 3

1998:

INTERROGATORY NO. 9: Identify each person who drafted the Complaint

filed in the Knox County lawsuit.

ANSWER: I believe that Ron Koksal and other members of the firm of Butler,

Vine & Babb drafted the Complaint filed in the Knox County lawsuit. I was

asked to review the Complaint to determine if I saw any factual errors contained

in the Complaint.

It is to be expected that Mr. Marquis would be asked to verify the accuracy of facts stated

in the complaint against Mr. Parrish given that he was Ms. Miller’s attorney at times relevant to the

claims in the complaint and, in that capacity was privy to Partnership transactions out of which the

malpractice action arose. But it cannot be reasonably inferred from the mere fact that Mr. Marquis

reviewed the complaint that he either ratified the malpractice suit or aided and abetted Mr. Koksal
-15-

in its prosecution. Furthermore, consistent with Mr. Parrish’s position that the facts surrounding the

allegations of malpractice supported a finding of non-liability, any correction of factual errors would

have aided the defense, rather than the prosecution, of the malpractice suit.

The fifth of the above assertions - that Mr. Marquis appeared in court with Mr. Koksal and

conferred with him during a hearing in the malpractice case - is based upon the following statement

from the affidavit of Mr. Parrish filed March 22, 2002:

When, in Miller v. Parrish, the Circuit Court heard oral argument on the motion

to dismiss and for summary judgment filed by Parrish, Koksal appeared and

presented the argument on behalf of Mrs. Miller; however, Marquis was in court,

seated in the spectator section, intently observing and, from time to time, as the

oral argument progressed, conferred and consulted with Koksal. Before the oral

argument commenced, Koksal and Marquis sat together and talked, in the

courtroom, awaiting the case to be called for argument.

Mr. Parrish’s averment that Mr. Marquis was present at a hearing in the malpractice action

and spoke with Mr. Koksal does not create a genuine issue of material fact with respect to whether

Mr. Marquis ratified the malpractice action and aided and abetted in its prosecution. There is no

indication in this proof as to the content of the conversations that Mr. Marquis and Mr. Koksal are

alleged to have had. Any conclusions that the jury might draw as to the content of those

conversations would necessarily be hypothetical and a controversy that involves a hypothetical or

theoretical set of facts is not justiciable. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d

186 (Tenn. 2000). 

The final assertion offered by Mr. Parrish’s firm in support of his claim that Mr. Marquis

ratified the malpractice suit and aided and abetted in its prosecution is that Mr. Marquis provided

an affidavit drafted to avoid the statute of limitations bar in the malpractice suit and such affidavit

was subsequently rejected by the Circuit Court because it was contrary to prior testimony of Ms.

Miller given in Mr. Marquis’s presence. In support of this assertion Mr. Parrish references the

previously noted affidavit of July 20, 1995, wherein Mr. Marquis attests that it was in spring of 1993

that he “first became aware and formed the opinion that Mrs. Miller had a potential cause of action.”

The following paragraph from Mr. Parrish’s own affidavit of March 22, 2002, is referenced as

additional supporting authority:

Koksal filed a response to Affiant’s motion to dismiss, including an Affidavit by

Mrs. Miller, a true copy of which is attached as Exhibit 5 to what is Exhibit 11

hereto; and an Affidavit of Robert S. Marquis, a true copy of which is attached as

Exhibit B to what is Exhibit 7 hereto. The affidavits of Mrs. Miller and Marquis

were designed as an attempt to avoid the statute of limitations bar to Miller v.

Parrish by swearing that Mrs. Miller and Marquis did not discover that Affiant had

pursued the alleged cost-consuming and inefficient litigation in violation of the

duties to the Partnership and Mrs. Miller until the Spring of 1993.
-16-

Finally, in support of this assertion, Mr. Parrish references a portion of the Circuit Court’s

memorandum opinion of July 16, 1996, wherein the Court addresses Ms. Miller’s argument that she

did not discover that she had a cause of action for malpractice until Spring of 1993 and that,

therefore, the malpractice action, which was filed in July of 1993, was timely filed under the one

year statute of limitations. The Court notes that in support of this argument Ms. Miller relies upon

her own affidavit in which she attests that she had no idea that actions taken by Mr. Parrish “were

not legally sound or in my best interest or in the best interest of the [P]artnership until Attorney

Robert Marquis advised me in the Spring of 1993.”. The Court also notes that Ms. Miller relies upon

the noted attestation of Mr. Marquis that in spring of 1993 he advised the plaintiff that she had a

potential cause of action against Mr. Parrish. The Court then states as follows:

The difficulty with these affidavits is that they are in effect contrary to

extensive sworn testimony given by plaintiff in other partnership proceedings

prior to the filing of the instant case. In a deposition given by plaintiff on

February 5, 1992, plaintiff testified at length about her displeasure with Mr.

Parrish and the way he was handling partnership affairs. She particularly

complained about the fact that Mr. Parrish had engaged in protracted litigation on

behalf of the partnership without being successful, and the litigation was

expensive, costing her “thousands of dollars”. In that deposition she identified

Mr. Marquis as her lawyer, and indicated that he was present with her in that

proceeding.

In the face of this prior sworn testimony it is the opinion of the Court that

the affidavits filed by plaintiff do not create a genuine issue of material fact on the

statute of limitations questions in this case. See Price v. Becker, 812 S.W.2d 597

(Tenn. App., 1991). While plaintiff may be in position to argue that she did not

understand all of the legal ramifications of Parrish’s legal activities on behalf of

the partnership, she was obviously aware of the facts that she now says constituted

a wrong on the part of the Parrish defendants.

Mr. Parrish contends that “the jury could reasonably infer from the fact that Marquis gave

a false affidavit in an attempt to avoid dismissal of the malpractice suit that Marquis ratified bringing

the underlying suit and actively assisted in continuing the prosecution.” 

The issue before the Circuit Court was whether Ms. Miller first became aware that she had

a cause of action against Mr. Parrish for malpractice over one year prior to the filing of the

malpractice complaint. In essence, the Court found that, as early as February of 1992, Ms. Miller

was aware of facts that constituted the alleged wrongs for which she subsequently filed the

malpractice suit and, therefore, she could not rely upon the affidavit of Mr. Marquis for the argument

that she was not aware that she had a cause of action until spring of 1993. That is not to say,

however, that Mr. Marquis’s affidavit was false, but only that Ms. Miller’s assertion that she did not

become aware of the facts alleged in the complaint filed by her and Mr. Koksal until advised of them

by Mr. Marquis. Ms. Miller’s sworn deposition testimony which the Court referred to and found to

be contrary “in effect” to the affidavits was that she was “displeased with Mr. Parrish and the way
-17-

he was handling partnership affairs” and that she complained about the fact that Mr. Parrish had

engaged in protracted, unsuccessful litigation on behalf of the partnership which cost her ‘thousands

of dollars’. We do not agree that this testimony of Mrs. Miller is contrary to the attestation of Mr.

Marquis that “he first became aware and formed the opinion that she had a potential cause of action

in 1993.” A contrary construction would require that we find that in 1992 when Ms. Miller

complained about unsuccessful, expensive and protracted litigation Mr. Marquis necessarily

simultaneously formed the opinion that she had a potential cause of action for legal malpractice. We

do not agree that the Court intended that construction. Only Mr. Marquis knows when he formed

his opinion regarding a potential legal claim against Mr. Parrish. The Court’s findings are directed

toward the veracity of Ms. Miller, not the veracity of Mr. Marquis. Because Mr. Parrish’s argument

is based upon the premise that the Court found Mr. Marquis’s affidavit to be false we find such

argument to be without merit.

Having determined that summary judgment in favor of Mr. Marquis is proper upon grounds

that Mr. Parrish has failed to create a genuine issue of material fact as to whether Mr. Marquis

ratified the malpractice suit and aided and abetted in its prosecution, we find it unnecessary to

address the issue of whether Mr. Marquis’s motion for summary judgment should have been granted

upon the additional ground that the suit was filed with probable cause and without malice.

For the reasons stated herein we reverse the Circuit Court’s order of April 12, 2002, to the

extent that it grants summary judgment in favor of Mr. Koksal and we affirm the Circuit Court’s

order of April 19, 2002, to the extent that it grants summary judgment in favor of Mr. Marquis. We

further remand for further proceedings consistent with this opinion. Costs of appeal are adjudged

equally against Larry E. Parrish and Larry E. Parrish , P.C. and their surety and Ronald C. Koksal.

_________________________________________

HERSCHEL P. FRANKS, JUDGE