### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

ugust 17, 2001 Session

JOE T. JONES V. MARY ANN MCMURRAY, ET AL 

### . Appeal from the Circuit Court for Williamson County No. II-99688 Russ Heldman, Judge

No. M2000-01959-COA-R3-CV - Filed September 20, 2001

In this malicious prosecution action, Joe T. Jones (“Plaintiff”) app eals the Trial Court’s grant of summary judgment to the de

fendants afte r concluding there was no genuine issue of material fact supp orting Plain tiff’s allegation of fraud surrounding entry of a judgment against Plaintiff in the underlying

lawsuit. We affirm

the judgment of th

e Trial Court.

Tenn R. App. P. 3 Appea l as of Right; Judgme

nt of the Circuit Court Affir

med; Case Rem

anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Joe T. Jones, Franklin, Tennessee, pro se Appellant.

Maclin P. Davis, Jr., and Terrence O. Reed, Nashville, Tennessee, for the Appellees Mary Ann McMurray a

nd R.E. Lee Da

vies.-2- OPINION Background

On December 13, 1999, Plaintiff sued Mary Ann McMurray (“McMur

ray”) a nd attorney R.E. Lee Davi

es (“Davies”)

for malicious pros

ecution. The malic

ious p ros ecution claim arises out of a p revi ous law sui t fi led by Mc Murray ag ainst Plaintiff in the

General Session Co

urt. Davies represented McMurray in this underly ing lawsuit.

In this malicious prosecution laws ui t, Plaintiff claims he operated Franklin Carpeting Company (“Company”) for

twenty y ears, but he “g

ave” the Company

to his wife in 1984 when he retired. In 1989, Plaintiff’s wife sold the Company to their son, Gary Jones. Plaintiff asserts he has hadnothing t o do with t he Company a nd has not shared i

n its profits for mor

e than ten ye

ars. Plaintiff further alleges that he wassued in the Gen eral Ses sio ns C our t fo r $5 ,40 0.0 0 by M cMu rray, a dissatisfied customer of the Company, resulting from a sale that occurred well after the Company was sold to Plaintiff’s son.

Instead of taking any worthwhile action to defend against the orig inal claim, Plaintiff simply wrote on the civil warrant “I am not the owner” and mailed it back to Davies. Plaintiff did notattend the hearing in t he General S essions C ourt. Sin ce Plainti ff was not pr esent at th e hearing,
on April19, 1999, a default judgment was entered against him for $5,400.00. Because Plaintiff took
no action other thanto mail the civil war rant back to

Davies prior to the hearing, he did not know a judgment had

been entered a

gainst him, at lea

st not until a deputy

sheriff showed u

p at his home and “levied an execution on Plaintiff’s 1990 Lincoln automobile” in May of 1999.

Plaintiff then hired an attorney and filed a separate lawsuit in Chancery Court seeking to have the General Sessions Court judgment set aside. On August 9, 1999, the Chancery Court dismissed this lawsuit, stating : “When collatera lly attacke

d, th e jud gment of a court of general jurisdiction enjoys a pre

sumption of validity

unless the record affirmatively shows a lack of personal jurisdiction.” No appeal was taken from the dismissal of the Chancery Court lawsuit.

On September 7, 1999, Plaintiff f iled a motion for relief from the judgment in the GeneralSessions Court. The G eneral Sessions Co

urt denied this m

oti on, concluding th

at its previous judgment had become final after 10 days, and that Rule 60 of the Tenn. R. Civ. P., which provides a mechanism

for obtaining re

lief from a judg

ment, was not applic

able in a general sessions court. Accordingly, the General Sessions Court concluded there wa s no ba sis, statutory or otherwise, to grant Plaintiff the requested relief. Plaintiff ap pealed th is ruling to the Circuit Court. On November

30, 1999, the Circu

it Court, apply

ing the same rat

ionale as the Gen

eral Sessions Cour

t,1 Since neither the pre vious decisio n of the Chan cery Cour t nor this decisio n of the Circu it Court were appealed, we expres s no opinio n on the pro priety of these ru lings. Plaintiff is, howev er, bound by those de cisions.
-3- concluded

that the sessions court

judg ment was final and dismissed the appeal. Plaintiff did not appeal to this Court

the Circuit Court’s

dismissal of the motio

n for relief fro

m the judgment. 1

In the malicious prosecution action now before t his Co urt, Plaintiff claims that McMurray

and Davies did not c

onduct a proper inve stigation to determine exactly who was the
owne rof t he Company a nd, therefore,

brought the orig

inal lawsuit aga

inst him without proba

ble
cause and with malice. Jones later amended his complaint to allege fraud on the part of McMurray and Davies, claiming they knew he was not the owner of the Company

. McMurray

an d Davies filed a motion for judgment on the pleadings without any discovery taking place. The Trial

Court concluded that since Jones’ allegations must be deemed to be true when ruling on a motion for judgment on the pleadings, themotion had to be denied. The Trial Court’s basis for this ruling was essentially Jones’ claim that McMurray “knew” Jones was not the proper owner

of the Company

when suit was file

d and that Davies w

as also aware of

this fact.

After discovery,

McMurray a

nd Davies fil

ed a mo tion for summary judgment pursuant to Rule 56 of the Ten

n. R. Civ. P. McMurray and Davies relied, in large par t, upon answers to i nterrogatories and responses to requests for admissions which were not before the Trial Court when it denied their motion for judgment on the pleadings. McMurray and Davies essentially argued there was no genuine

issue of material fact as to whether there was any fr aud. Plaintiff responded by asserting there was a genuine issue of material fact as to whether McMurray knew Plaintiff was
no longer involved in the Company and whether Davies was made awa re of facts sufficient to require him to cease pursuing the a ction. The Trial Court granted McMurray’s and Davies’ motion for summary judgment, concluding there was no genuine issue

as to any material fact and no evidence of “extrinsic fraud”. Plaintiff’s motion to alter or amend the judgment was denied by th e Trial Court. This appeal followed.

Discussion

The standard for review of a motion for summary

judgment is set fo

rthin Staples v. CBL & Associates, Inc. , 15 S.W.3d 83 (Tenn. 2000):

The standards governing an appellate court’s review of a motion for summary

judgment are well settled. Since our inquiry involves purely a q uestion of law, no p resumption of cor

rectness attaches to the lower cour t’s judgment, and

our task is confine

d to reviewing the record to

determine whether the requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Bro wn , 955 S.W.2d 49, 50-51 (Tenn. 1997) ; Cowden v. Sovran Ba nk/Central South , 816 S.W.2d 741, 744 (Tenn. 1991). T e nnessee Rule of Civil Procedure-4- 56.04 provides that summa ry judgmen

t is appropriate w

here: (1) ther e is no genui ne issue with regard to the material facts relevant to the claim or defense contained in the motion, see Byrd v. Hall , 847 S.W. 2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgm ent as a

matter of law on the undisputed facts. See Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving party has t he burden of proving that its motion satisfies these requirements. See Downe n v. Al lstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn. 1991). W hen the party seeking summary judgment makes a properly supported motion, the burden shifts to the nonmoving party to set

forth specific

facts establishing the existence of disputed, materia

l facts which must be reso lved by the tr

ier of fact. See Byrd v. Hall

, 847 S.W.2d at 215.

To properly support

its motion, the moving party must either affirmatively

negate an

essential element of the non-moving party’s claim or conclusively

establish an affirmative defense. See McCarley
v. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn. 19 9 8); Robinson v. Omer , 952 S .W.2 d 423, 426 (T enn. 1 997). If the moving party fails to negate

a claimed basis fo

r th e su it, the non-moving party’sburden to produce evid e nce establishing the existence of a genuineissue for trial is not triggered and the motion for summary judgment must fail

. See McCarley v. West Quality Food Serv. , 960 S.W.2d at 588; Robinson v. Omer , 952 S.W.2d at 426. If the moving party successfully negates a claimed ba sis for the action, the nonmoving party may

not simply

rest upon the pleadings, but must offer proof to establish the existence of the essential e lements of the cla

im.

The standards governing the assessment of ev idence in the
summ ary judgment context a re also well esta

blished. Courts must view the evidence in the li ght most favorab

le to the nonmoving

party a nd mus t also draw all reasonable inferences in the nonmoving party’sfavor. See Robinson v. Omer , 952 S. W.2d at 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should gra nt a summary judgment only when

both t he facts and the inferences to be drawn from t he fact s 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). Staple s , 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther v. Compton , 5 S.W.3d 635, 639 (T enn. 1999)( quoting Byrd v. Hall, 847 S.W.2d at 211).-5- The best we can surmise from Plaintiff’s pro se Brief, Plaintiff appears to argue, at most, only that summa

ry judgmen

t was inappropria

te because ther

e is a material factualdispute on the issue of

fraud. In Christian v. Lapidus , 833 S.W.2d 71 (Tenn. 1992), our Supreme

Court held that in order to state a

claim for malicious pros

ecution, a plainti

ff must show that: (1) a prior suit or judicial proceeding was brought against plaintiff without probable cause; (2) defendant brought such prior action with malice; and (3) the prior action was finally terminated in favor of plaintiff. Id . at 73. Christian went on to state that the “favorable” component in the third elemen t is nece ssary “because a judgment in fav

or of the origina

l plainti ff is conclus ive of probable cause, unless procured by fraud .” Id . at 74 (emph asis a dded) . In the present case, it is undisputed that Plaintiff did not receive a

favorable

outcome in the underlying action. Accordingly, his only wa y to attack that unfavorable outcome is to prove it was procured by fraud.

It is important to note that

Plaintiff’s malici

ous prosecution la

wsuit is nothing short of an independent action collaterally attacking the judgment previ ously e ntere d agai nst P laint iff. In relevant part, Rule 60.02(2) of the Tenn. R. Civ. P. provides that a party may be r elievedfrom a final judgment for fraud (whether intrinsic or extrinsic) if the motion is made within a reasonable time and within one year after the judgment was entered. Rule 60.02 also has a savings clause which provides that: “Th is rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment ... or to set aside a judgment for fraud upon the court.” While the first part of Rule 60.02 discussed above expressly applies to intrinsic or extrinsic fraud, the savings clau se has been h eld to apply

only to extrinsic fraud. See Brown v. Raines , 611 S.W.2d 594, 597 (T enn. Ct. App. 1980). See also Whitaker v. Whirlpool Corp. , 32 S.W.3d 222, 230 (Tenn. Ct. App. 2000)(“The distinction between intrinsic and extrinsic fraud existed at common law ... and is mai nta ine d to day, bothunder the Rules of

Civil Procedure a

nd incase law.”). Furthermore, the savings clause found in Rule 60.02 has bee

n interpreted as

“retaining the

independent act

ion in equity t

o impeachor set aside a judgment for fraud ....” Brown , 611 S.W.2d at 597 (citing Jerkins v. McKinney , 533 S.W.2d 275, 281 (Tenn. 1976)).

We are not

dealing with the denialof a Rule 60.02 motio n on this appeal, a

nd express
no opinion on whether a Rule 60.02 motion would have been the appropriate manner for Plaintiff to proceed. We discuss Rule 60.02 becau se tha t Rule addresses c ollateral attac

ks on judgments allegedly obtained by fraud, which, as stated above, is what the present case actually involves since Plaintiff first must get

around the fact t

hat the underly

ing judgment wa

s not “finally

terminated in favor of plaintiff.” Christian v. Lapidus , 833 S.W.2d at 73.

Because this case involves a collateralattack on a judg ment, we believe

the outcome of this appeal is resolved by our Supreme Court’s opinion in Jerkins v. McKinney , 533 S.W.2d 275 (Tenn. 1976). In Je rk ins , the Court discussed collateral attacks on judgments and adopted the following reasoning by the United States Cour t of Appeals for the T

enth Circuit in

Winfield Associates, Inc. v. Stonecipher , 429 F.2d 1087 (10th Cir. 1970):

Gen eral ly, s uch a n independent action must show a recognized ground, such as fr aud, accident, m istake or the like,

for equitable-6- relief and that there is no other availa ble or adequate

remedy. I

t must also appear that the situation in which the party seeking relief finds himself is not due to his own f

ault, neglect or

carelessness. I

n this type of action, it is fundamental that equity will no

t grant relief i

f the complaining party 'has, or by e xercising proper diligence would have had, an adequa

t e remedy at law, or by pr oceedings in the original action * * * to open, vacate, modify or otherwise obtain

relief agains

t, the judgment.' The granting of relief in this unusual type of proceeding lies largely

within the dis cret ion of the trial judge. 429 F.2d at 1090.
Jerkins , 533 S.W.2d at 281, 282.

In the present case

, Plaintiff simply

wrote on the General Sessions Court civil warrant “I am not the owner” and mailed it back to Davies. He did not appear at the trial and took no other steps to protect his inter

ests or otherwise defend against the lawsuit. This was the only action taken by Plaintiff, notwithstanding the fact that the war rant commanded hi

m “to appear” at

the hearing to “then and there to answer in a civil action . . . .” If Plaintiff w as not the proper p

arty defe ndant to that lawsuit as he claims, then

this issue could

have been litigated in the General Sessions Court and, i f Plaintiff was dissatisfied with the result, it could have been appealed to Circuit Court. None of this happened beca

use Plaintiff chos

e not to show up or ascertain what happened at the hearing. The “fault, neglect or carelessness” of Plaintiff is the sole cause for the precarious situation in which he finds himself. For these rea sons, he cannot collaterally attack on the basis of fraud the orig inal judgment entered agai

nst him in the General Sessions Court. Since the General Sessions judgment must, therefore, sta

nd, it necessar ily follows that Plaintiff has not and cannot satisfy a necessa ry element to establish a claim for malicious prosecution because t he prior action was not finally terminatedin his favor. Def endants negate

d this essential ele men t of Pla int iff ’s c lai m. A ccor din gly, the Trial Court pro

perly gra nted summary

judgment to McMur

ray and Da

vies. McMurray

and Davies have requested they be awarde d their attorney fees on

appeal basedon their position thatPlaintiff’s appeal is frivolous. Exerc ising our discre

tion, we decline to award attorney

fees.
Conclusion

The judgment of the T

rial Court is affir

med. This case is r

emanded to

the Trial Court for further pro

ceedings as ma

y be requir

ed, if any, consis

tent with this Opinion, and for collection of costs below. Costs of appeal are taxed to the Appellant Joe T. Jones and his surety.

____________________________________ D. MICHAEL SWINEY