FILED

July 2, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

HELEN S. ROGERS, )

)

Plaintiff/Appellee, )

) Appeal No.

) 01-A-01-9611-CV-00500

VS. )

) Davidson Circuit

) No. 95C-1848

TOM E. WATTS, JR., )

)

Defendant/Appellant. )

DISSENTING OPINION

I respectfully dissent from the majority opinion on two grounds: (1)

probable cause and (2) damages -- neither of which is presented with much clarity

in the briefs. But the issues are of such importance to the practice of law in this

state that I feel they should be addressed.

Mr. Watts had a judgment against Ms. Rogers’ client. While the case

was on appeal they agreed to settle it, and Ms. Rogers represented that the money

would be wired to her trust account “around the first of next week.” With that

assurance, Mr. Watts persuaded a judgment creditor of his client to release an

execution by promising that the money would shortly be available to pay the

judgment. When the settlement fell through, Mr. Watts was sued by the creditor

who had released the execution. Mr. Watts filed a third party claim against Ms.

Rogers for a judgment against her in the event he was held liable.

At this point, who would deny that Mr. Watts had probable cause to

sue Ms. Rogers for indemnity? Ms. Rogers concedes (and the trial judge found)

that Mr. Watts had probable cause to sue her for indemnity based on her negligent

misrepresentations. (She disputes any negligence on her part, but whether Mr.
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Watts would have been successful in his action is quite another matter from

whether he had probable cause to bring it.) Unfortunately, Mr. Watts did not sue

for negligence. He alleged that the representations made by Ms. Rogers were

fraudulent. At the trial, the trial judge denied Mr. Watts’ motion to amend his

complaint to allege negligence.

I realize that an allegation of fraud by a lawyer against another lawyer

is a serious allegation and should not be taken lightly. But, an allegation of fraud is

just as serious when levelled against anyone. Every unproven case, however,

should not result in a claim of malicious prosecution.

“In order to establish the lack of probable cause in instituting a civil

proceeding, it must appear that the suit was filed primarily for a purpose other than

that of securing the proper adjudication of the claim in which the proceedings are

based.” Buda v. Cassel Bros., Inc., 568 S.W.2d 628 (Tenn. App. 1978)(citing

Restatement of Torts, Second, § 674). In my view a defendant in a malicious

prosecution case has established a defense if he proves that he had probable

cause to seek the relief involved in the original action; he is not exposed to liability

if he fails to prove the theory he uses in seeking the relief. A simple example will

illustrate the difficulty created by holding otherwise. Assume that under our liberal

rules of pleading Mr. Watts had pled his case under the alternative theories of

fraud and negligent misrepresentation. See Rule 8.02(2), Tenn. R. Civ. P. If the

trial judge dismissed the fraud claim and entered judgment on the negligence

claim, would Mr. Watts be facing an action for malicious prosecution because he

did not prove the elements of fraud? I do not think he should be.

The second reason for my dissent flows from the first. The damages

awarded to Ms. Rogers all related to the fact that she had been sued -- not to the

fact that she had been sued for fraud. She proved the attorney’s fees incurred in
3

defending the original claim and that she had to pay a higher rate of interest on a

loan because she revealed on the loan application that she had been sued. The

trial judge specifically found that Ms. Rogers had not suffered any damage to her

reputation. I do not think she has suffered any damages peculiarly related to the

fraud claim.

Therefore, I dissent.

___________________________

BEN H. CANTRELL, JUDGE