# FILED
July 2, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

HELEN S. ROG ERS, ) ) 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 maj ority opi nion on two grounds: ( 1) probable cause an d (2) damages -- neither

of which is

presented w ith much clar ity in the briefs. But the issues are of such importance to the practice of law in this state that I feel th ey should be addressed.

Mr. Wa tts had a judgment against Ms. Rogers’ client. W hile the case was on appeal they agreed to settle i t, and Ms. Ro gers represented that the money would be w ired to her t rust account “ around the first of next week .” With that assurance, M r. Watts persuaded a judgment c reditor of his client to release an execution by

promising that the money w ould shortly

be availabl e to pay the judgment. When the settlement fell through, Mr . Watts was sued by the creditor who had released the execution. Mr. W atts filed a third party claim against Ms. Rogers for a

judgment aga inst her in the event he was held liabl e.
At this point, who would deny that Mr. Watts had probable causeto sue Ms. Rog ers for indemnity ? Ms. Rog ers concedes ( and the trial judge found) that Mr. W atts had probable cause to sue her for indemnity based o n her negligent misrepresentations. (She dispu tes any negligence on her part, but whether Mr.2

Watts would have been suc cessful in his action is q uite another matter from whether he ha d probable cause to bring i t.) Unfortunatel y, Mr. Watts did not sue for negligence. He alleged that the represen tations made by Ms. Rogers were fraudulent. At the trial, th e trial judge denied Mr. W atts’ motion to amend his complaint to al lege negl igence.

I realiz e that an alleg ation of fraud by a lawyer against anoth er 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 resu lt in a clai m of malicious pr osecution.
“In order to establish the lack of prob able cause in instituting a civil proceeding, it must appear t hat the suit was filed primar ily for a p urpose other tha n that of securing the proper ad judication of the claim in which the proce edings are based.” Buda v. Cassel Bros., Inc. , 568 S.W.2d 628 (Tenn. App. 1978)(ci ting Restatement

of Torts, Se cond

, § 674). In my

view a defendant in a malic ious prosecution case has estab lished a defense if he proves that he had probable cause to seek the reli efinvolved in the orig inal action; he is not ex posed to liabi lity if he fails to prove the theory he uses in see king the relief. A simple example will illustrat e the difficulty

created by

holding other

wise. As sume that under our liberal rules of pleadingMr. Watts had pled his cas e under the alter native theor ies of fraud and neglig ent misrepres entation. See Ru le 8.02(2), Tenn. R. Civ . P. If the trial judge dismissed the fraud claim a nd entered judgment on the negligence claim, wo uld Mr. Watts be facing an ac tion for malici ous prosecuti on because he did not prove the elements of fraud? I do not think he s hould be.

The second reason for my dissent flows from the fir st. The damages awarded to M s. Rogers all relate d to the fact that shehad been sued --not to the fact that she had b een sued for frau d. She proved the attorney’s fees incurred in3

defending the ori ginal cl aim and that she had to pay a hig her rate of interest on a loan because she r

evealed on the loan applicati on that she had been s ued. The trial judg e specificall y found that Ms . Rogers had not suffered any da mage to her reputation. I do not think she has suffered any damag es peculiarl y related to the fraud c laim.
Therefore, I dissen t.

___________________________ BEN H. CAN TRELL, JUDGE