§46.1 Generally

The Case: Parrish v. Marquis , 172 S.W.3d 526 (Tenn. 2005).

The Basic Facts: Lawyer filed malicious prosecution case after he was sued for legal malpractice.

The Bottom Line:

• "A plaintiff must show (a) that a prior lawsuit or judicial proceeding was brought against the plaintiff without probable cause, (b) that the prior lawsuit or judicial proceeding was brought against the plaintiff with malice, and (c) that the prior lawsuit or judicial proceeding terminated in the plaintiff's favor. Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992); see also Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992)." 172 S.W.3d at 530.

Other Sources of Note: Tenn. Code Ann. § 29-20-205(a) (providing immunity from claims of malicious prosecution for governmental entities; not government employees); Pera v. Kroger Co., 674 S.W.2d 715 (Tenn. 1984) (quoting Restatement (Second) of Torts § 655 (1977) and holding that a private person who exercises some control over the prosecution other than mere participation by taking an active part in continuing or procuring the continuation of proceedings is subject to liability for malicious prosecution just as though he had initiated the proceedings himself).

Recent Cases: 

Sanford v. Waugh , No. M2007-02528-COA-R3-CV, 2009 WL 1910957 (Tenn. Ct. App. Jun. 30, 2009) (upholding jury verdict on malicious prosecution claim finding it was reasonable for the jury to conclude there was no probable cause and therefore it was permissible for the jury to infer malice); Hibbard v. Receivables Management Bureau, Inc., No. E2007-00152-COA-R3-CV, 2007 WL 4117268 (Nov. 20, 2007) (affirming dismissal of plaintiff's malicious prosecution claim, finding no proof that defendant instituted a criminal proceeding against plaintiff, or that the warrant was issued without probable cause or with malice).