# FILED

June 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

RICHARD TUCKER AND ) JOE DIFIORE, ) ) Plaintiffs/Appellees, ) Montgomery Circuit No. C8-491 v. ) ) Appeal No. 01A01-9708-CV-00426 CHRISTOPHER CARR TURNER, ) ) Defendant/Appe

llant. )

APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNT Y AT CLARKSVILL

E, TENNESSEE THE HONORABLE JAMES E. WALTON, JUDGE For the Plaintiffs/Appellees : For the Defendant/Appellant : James D. Kay, Jr. Gregory D. Smith Bridgett A. Wohlp

art Clarksville, Tennessee Nashville, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: ALAN E. HI GHERS, J. DAVID R. FARMER, J.1 Turner alleges that he did not know about the lawsuit until after it was filed.

However, it is undisputed that once he learned it had been filed, he allowed it to proceed. OPINION This malicious pr osecu tion case stems from a previous separate malicious prosecution lawsuit. The defendant in this case was charged with ce rtain crimes; a

grand jury later

cleared him of the charged

crimes. The defe

ndant then filed a

malicious prosec

ution and abuse

of process case against the two plaintiffs i

n this case. The de

fendant in this ca

se subsequently conf

essed to the crime and nonsuited his malicious prosecution case. The plaintiffs in this case then filed a malicious prosecution case against the defendant. Du ring the jury trial, the trial court denied both the plaintiffs’ and defendant’s request for a directed verdict. The jury subsequently found in favor of the plaintiffs and awarded compensatory and punitive damages to t he pl aintiffs. The defendant appeals. We af

firm. On October 28, 1990, the defendant, Christopher Turner (“Turner”),acted as a “look out” in the burglary an d theft of items from a truck belonging to plaintiff Richard Tucker (“Tucker”). Plaintiff Joe Difiore (“Difiore”), a detective with the Clarksville Police Department, was assigned to the case. Several leads indicated Turner’s involvement in the burglary, causing Difiore to seek

an indictment against Turner. Difiore testified in the grand jury proceedings against Turner. At the grand jury proceeding, Turner lied under oath and denied his involvement. This testimony plus Turner’s two favorable polygraph tests led the grand jury to return a “no true bill,” clearing Turner of the charges. On Febru ary 25, 1991, within days of the grand

jury proceeding , Turner filed a l awsuit against Tucker and Difiore. He was repre sented by h is father, attorney Cleveland Turner. 1 The lawsuit alleged malicio

u s prosecution and

abuse of proces s, and sought one mill ion dollars in damages. Pretrial activity ensued. During the investigation of Turner’s involvement in the burglary and a fter the lawsuit a

gainst Tucker and Difiore was filed, there was considerable publicity in the medi a about t he matter, including articles in the Nashville and Clarksville newspapers. One article, dated December 21 , 1990, contains a statement by Cleveland Turner that “When it’s all over with, we’re going to have

our say and it’s going to be at 8th and Broadway in N ashville.” The art icle notes that this is the location of the federal c

ourt house

in Nashville. He c

ontinues, “Somebod

y’s going to

pay. When2

it’s all over with, there’s going to be a day of reckoning.” He further stated, “The people of Clarksville should know thatthey are subsidiz ing people grinding

their own axes.” Joyce Turner, Christopher

Turner’s mother, states that, “I will not rest until I get even with Joe Difiore. I will get him.” Several months later, Turner wa s implicate d by other persons involved in the burglary of Tucker’s truck. On July 1, 1991, Turner admitted to his involvement in the burglary and theft. On July 2, 1991, Turner voluntarily nonsuited the case against Tucker and Difiore. Turner later entered

a nolo contendere plea in exchange for two years probation, a thous

and hours of commu

nity service, and restitution. After Turne r’s malicious prosecution lawsuit was nons uited, Tucker and Difiore (“plaintiffs” ) eachfiled separate

malicious prose

cutio n lawsuits against Turner, seeking damages for the approximately

five month period in which Turner’s malicious prosecution case was pending . These two lawsuits were later consolidated into this action, which was tried before a jury. Th e evidence at trial showed that the considerable publicity surrounding the original malicious prosecution suit a gainst Tucker an

d Difiore adver

sely affected

them. Tucker testified that the earnings from his construction company suffered due to negativ e newspaper articles and that people approached

him on the street and asked him why he was persecuting Turner. This caused him humiliation and embarrassment. Tucker testified that although his insurance company agreed to answer the complaint, the company had not promised continued coverage. Difiore testified about the numerous hours he spent discussing the case with his attorney, the negative comments made by others, and the embarrassment and humiliation caused by the suit. Difiore also stated that he did not sleep through a single night while the case was pending and that he lost forty-five pounds in the first two to three months after the suit was filed. The newspaper article referred to

above was introduced to show how the media publicity affected Difiore’s state of mind. The article referred to “somebody” having to “pay” and t hat Turner’s fa mily would “get” Difiore. These statements, Difiore testified, caused him to worry about possible bankruptcy and the safety of his family. Difiore testified that bei ng sued for malici

ous prosecution ma

de him realize his liabilityas a detective, and prompted him to take a pay cut and switch to a lower paying nondetective position with the police department.3

The plaintiffs as well as the defendant Turner filed motions for a directed verdict. Turner’s motion alleged that, since the underlying suit was nonsuited, the plaintiffs failed to prove an essential element of their claim, a final termination of the underlying s uit in thei r favor. Both motions for directed verdict were denied. The jury returned

a verdict in

favor of Tucker and Difiore, awarding compensatory damages of $52,000 to Tucker and $10,500 to Difiore. The jury also awarded punitive damages of $50,000 to Difiore. Tucker waived his right to punitive damages after the case was submitted to the jury and after the jury returned a verdict in his favor indicating that h e was entitled to pu

nitive damages. Turner now appe

als the trial cour

t’s denial of his mot

ion for directed

verdict. On app eal, Turner asserts that the trial court should have directed a v erdict in his favo r because the plaintiffs failed to prove an essential element of

malicious prosecution. Turner contends that, since the underly

ing suit was nonsuite

d, there was no fi

nal termination of

the prior action in Tucker and Difiore’s favor, an essential element of the claim. Turner also argues that the trial court erred in allowing the plaintiffs to testify as to their mental and emotional damages without presenting expert testimony. When reviewing a motion for a directed verdict, the appellate co urt must look to all the evidence, take the strongest legitimate view of the evidence in favor of the opponent of the motion,

a nd allow all reasonable inferences in favor of that party. A fter discarding all countervai lin g evidence, if t here is a ny di spu te a s to any m ate ria l fa ct, or an y d oubt as to t he conclusions to be drawn from

the evidence as a whole, the motion must be denied. See Conatser v. Clarksville CocaCola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v. Tennesse e Farmers Mut. Ins. Co. , 922 S.W.2d 887, 891 (Tenn. App. 1995). A directed verdict cannot be sustained if there is material evidence in the record which would support a verdict for the defendant under any of the theories the defendant had advanced. See Conatser , 920 S.W.2d at 647. In a malicious prose

cution action, the

plaintiff must prov

e three element

s: (1) that the defendant instituted a prior suit or judicial proceeding against the plaintiff without probable cause, (2) that the defendant brought the action with malice, and (3) that the action end ed in a final determination in favor of the plaintiff. See Christian v. Lapidus , 833 S.W.2d 71, 73 (Tenn. 1992); Kauffman v. A. H. Robins Co. , 448 S.W.2d 400, 402 (Tenn. 1969). We must first determine whether a voluntary nonsuit satisfies the third element, requiring a final determination in favor of4

the defendant in the underlying action. Turner maintains that, at the time of the nonsuit, Tennessee law was clear that a nonsuit was nota final determination in favor of the defendant in the underlying action. See Price v. Boyle Inv. Co. , 1990 WL 60659 (Tenn. App. May 11, 1990). However, less than a year after Turner vo

luntarily nonsuit ed his malicious prosecution action against Tucker and Difiore, the Tennessee Supreme Court held that a nonsuit is a final determination in favor of the defendant. See Christian v. Lapidu s , 833 S.W.2d 71 (Tenn. 1992). The Court stated, [W]e are persuaded

, and now hold, that

abandonment or wi

thdrawal of an a

llegedly malicious prosecution is sufficient to establish a final and favorable te

rmination so long as such abandonment or withdrawal was not accompanied by a

compromise

or settlement, or ac

complished in orde

r to refile the ac

tion in another for

um. Id. at 74 (citing Resta

tement (Second) o

f Torts § 674, cmt. j (1977)). Under Lapidus , then, the nonsuit in this case was a final determination in the defendants’ favor. Tucker and Difiore argue that Lapidus should be applied r etr oa ctively to this case. Turner argues against the retroactive application of Lapidus , and maintains tha t Price controls. In Price , cited by Turner, the defendant gave notice that h

e was going to amen

d his crossclaim to include malicious prosecution. The plaintiff then sought a voluntary non suit. The t rial court denied the n

onsuit because it b

elieved that the n

onsuit would

cause the defe

ndant tosuffer a legal detriment, namely

th at the defendant would be prevented from asserting his malicious prosecution claim because there would be no final judgment in his favor. The appellate c our t affirmed the trial court’s

denial of the nonsu

it, noting th

e plaintiff ’s ability to reinitiate the action against the defendant after a volu ntary dismissal without prejudice: “Since it was a voluntary dismissal, t he suit readily could have been reviv

ed at anytime withi

n the year. To ca

ll this a ‘termination’ is a misnomer.” Price , 1990 WL 60659, at *4. Price indicated that its h

olding should

be limited to the facts of that case. The Court quoted the following, describing it as “appropriate and applicable to the case at bar”: “We do not mean to imply that by filing a counter claim in malicious prosecution, or by professing an intention to do so later, any defendant may defe at an y motion for dismissal without prejudice. Such a rule would undoubtedly make it impossible for a plaintiff ever to

dismiss voluntarily without prejudice. Our decision is limited very closely to the facts of this case.” Id. at *5 (quoting Selas Corp. of Am. v. W ilshire Oil

Co. of Tex. , 57 F.R.D. 3, 7 (E.D. Pa. 1972)). Price also quotes with approval the following excerpt from the Restatement of T orts : “Whether a5

withdrawal or an abandonment constitutes a final termination of t he case in favor of the person against whom the proceedings are brought and whether the wit hdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn.” Id. at *4. (quoting Restatement (Second) of Torts § 674, cmt. j. (1976)). In this case, Turne

r confessed to

participation in th

e burglary shortl

y before the underlying lawsuit was nonsuited. Under Rule 11 of the Tennessee Rules of Civil Procedure, Turner could not have refiled the malicious prosecution case without risking sanctions . Theref ore, the nonsuit effectively

terminated any fur ther action by Turner against the defendants Tucker and Difiore. Consequently, even under the law prior to Christian v. Lapidus , the nonsuit under these facts would be considered a final determination in the defendants’ favor. In additio n, it is also clear that Lapidus should be applied retroactively in this case. The doctrine of nonretroactivity limits the circumstances under which a jud icial d ecision should be applied re troactivel y. See Luna v. Clayton , 655 S.W.2d 893, 899 (Tenn. 1983) (citing Great Northern Ry. Co. v. Sunburst Oil & Refining Co. , 287 U.S. 358, 53 S. Ct. 145 , 77 L. Ed. 360 (1932)). The doctrine of nonretroactivity applies only where (1) the decision at issu

e either establis

hes a new princip

le of law by overruling clear past prece dent or dec ides an issue of first impression whose resolution was not clearly foreshadowed, (2) in light of the prior h ist ory of the rule in q uestion, its pu rpose and e ffect, retrospective application will retard its prospective operation, and (3) the decision, if applied retroactively, "could produce substantial inequitabl e results" to the instant litigants. Id . (citing Chevron Oil Co. v. Huson , 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971))

. The Tennessee Supreme Court again di scussed retrospec tive application of judicial decisions in Marshall v. Marshall

, 670 S.W.2d 213 (Tenn. 19 84). The Court in Marshall opined that if a party justifiably relies on a subsequently overruled judicial decision and those reliance intere sts would be defeated by retroactive a ppl ication of the overruling decision, the overruling decision should be limited to prospective application. See id. at 215 (citing Annotation , Overruling Decisions--Application , 10 A.L.R.3d 1371, 1386 § 5(b) ( 1966)). T he Marshall Court noted that “ ‘prospective only’ application of an overruling decision should be limited to a case in which the hardship on a party who has relied on the old rule outweighs the hardship on the party denied the6

benefit of the new rule.” Id. (citing Traynor, Quo Vadis Pros pective O verruling: A Question of Judicial Responsib

ility , 28 Hastings L.J. 533 (1977)). Utilizing the factors enumerated in Luna , we must first dete rmin e whet her Lapidus “overrul[ed] clear past prec edent or decide [d] an issue of fi rst impression whos

e resolution was not clearly foreshadowed.” Luna , 655 S.W.2d at 899. As noted above, the language in Price indicated approval of a case-by-c

ase determinatio

n of whether a non

suit const itutes a fi nal determination. Price , 1990 WL 60659, at *5. Therefore, Price cannot be considered “

clear past precedent” on the issue of whether a nonsuit is a final determination in favor of defendants. Second, there is no reason why ret rospect ive application of Lapidus would “retard its prospective operation.” Luna , 655 S.W.2d at 899. Third, there is no evidence that the retroactive application of Lapidus would produce “substantial inequitable results.” Id. Although Turner argues that he relied on Price when he took

a nonsuit, in light of Turner’ s confession, he h ad no choice exc

ept to nonsuit the und

erlying lawsuits, regardless

of Price

. Under all of

these circumstances, Turner has not presented pro of of hardship

or reliance that woul d warrant a “prospective only” application of Lapidus . Consequently, under Lapidus and considering the facts in this case, Turner’s nonsuit of the underlying lawsuit would be considere d a “final determination” in favor of Tucker and Difiore. Therefore, the ele ments of a malicious prosecution claim were satisfied, and the trial court did not err in denying Turner’s motion for a directed verdict. Turne r also argues on appeal that the trial court erred in admitting Tucker and D ifiore’ s testimonyon their mental and emot io nal distress damages. The trial court is afforded wide discretion in the admission or rejection of evidence, and the trial court's action will be reversed on appeal only when there is a showing of an abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Aussenberg v. Kramer , 944 S.W.2d 367, 370 (Tenn. App. 1996); Davis v. Hall

, 920 S.W.2d 213, 217 (Tenn. App. 1995). “[T]he elements of dama ges recovera

ble in a ma

l icious prosecution suit are those which ‘proximately

result to the plaintiff, his person, property, or reputation from a previous unsuccessful civil or criminal proce

edin g which was prosecuted without probable cause and with malice’ ” Pullen v. Textron, Inc. , 845 S.W.2 d 777, 780 ( Tenn. App. 1 992) (citi ng Ryerson v. American Sur. Co. , 213 Tenn. 182, 185, 373 S.W.2d 436, 437 (1963)). Turner cites Medlin v. Allied Investment Co. , 398 S.W.2d 270 (Tenn. 19 66), fo r the7

proposition that the plain tiffs were required to submit expert testimony to recover for mental and

emo tional damages. However, Medlin involved the tort of outrageous conduct, not malicious prosecution. Medlin addresses menta l and emotional distr

ess “unconnecte

d with any independ

ently actionable

tortor with any contem

poraneous or con

sequential objec

tively ascertain

able injury.” Id. at 272. The Court reasoned that, to recover for mental injury standing alone, a plaintiff must show serious mental injury to prevent trivial claims. See id. at 274. In a malicious prosecutioncase , however, there is an independent tort -- the malicious prosecution. In at least two other Tennessee malicious prosecution cases, plaintiffs were allowed to testify as to their mental distress without expert testimony. See Harmon v. McGill , No. 03A01-9311-CV-00404, 1994 Tenn. App. LEXIS 588 (Oct. 20, 1994); Hardin v. Caldwell , 695 S.W.2d 189, 192 (Tenn. App. 1985). We find no abuse of discretion in the trial court’s admission of the plaintiffs’ testimony on this issue. In sum, we find that the nonsuit in this case was a final determination in favor of Tucker and Difiore, and thus the proof presented at trial proved the essential elements of the plaintiffs’ malicious prosecution claim. The trial court’s decision to deny Turner’s directed verdi ct is affirmed. In addition, we find that the trial cour t did not abuse its disc

retion in allowing T

ucker and Difior

e to testify about their mental and emotional distress. The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.