§42.11 Malicious Prosecution
The Case: Christian v. Lapidus , 833 S.W.2d 71 (Tenn. 1992).
The Basic Facts: The defendants filed their original complaint in the underlying action against plaintiffs on April 15, 1986. On February 16, 1988, the defendants filed an amended complaint, which did not contain any allegations against the plaintiffs. "The amended complaint stated: 'This amended complaint supersedes the allegations contained in the complaint heretofore filed." 833 S.W.2d at 73-74. The case was tried and the court entered its final judgment on October 5, 1998. The judgment became nonappealable on November 4, 1988. On March 14, 1989, the plaintiffs sought an order of dismissal from the original complaint, which the district court granted on April 5, 1989.
The Bottom Line:
- "An action for malicious prosecution must be commenced within one year after the cause of action accrued. [Tenn. Code Ann. § 28-3-104(a)(1) (Supp. 1991)]. A cause of action for malicious prosecution accrues when a malicious suit is finally terminated in the defendant's favor. See Rosen v. Levy, [113 S.W. 1042, 1044 (Tenn. 1908)]." 833 S.W.2d at 73.
- "We first note that, under the Federal Rules of Civil Procedure,FN2 an amended complaint supersedes the original complaint, rendering the original of no legal effect, unless the amended complaint specifically refers to or adopts the original. See Boelens v. Redman Homes, Inc., [759 F.2d 504, 508 (5th Cir. 1985)]. See generally [6 C. Wright, A Miller & M. Kane, Federal Practice and Procedure § 1476 (1990)]; [3 J. Moore & R. Feer, Moore's Federal Practice ¶ 15.08 (2d ed. 1991)]. Here, the amended complaint did not refer to or adopt the original. To the contrary, it specifically recited that is superseded the allegations contained in the original. The legal effect was to remove the Christians from the lawsuit and constitute an abandonment of Defendants' RICO action against them.
FN2 The same result obtains under the Tennessee Rules of Civil Procedure. See Railroad v. House, [56 S.W. 836, 836 (Tenn. 1900)]; McBurney v. Aldrich, [816 S.W.2d 30, 33 (Tenn. Ct. App. 1991)]."Id .
- "In order to establish the essential elements of an action for malicious prosecution, the plaintiff 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. See Lewis v. Allen, [698 S.W.2d 58, 59 (Tenn. 1985)]. Here, we are concerned with whether abandonment of a civil action satisfies the third element, 'final and favorable termination,' so as to commence the running of the one-year statute of limitation." Id.
- "An effective termination must be both final and favorable. The 'finality' component ensures that plaintiff in the original action has had an opportunity to establish probable cause for commencing suit before being called upon to defendant a counterclaim for malicious prosecution. It also guarantees that an aggrieved party will be able to fully present his damages, and eliminates the possibility of inconsistent judgments." Id. at 73-74.
- "The 'favorable' component is required because a judgment in favor of the original plaintiff is conclusive of probable cause, unless procured by fraud. See Sloan v. McCracken, 75 Tenn. 626, 627 (1881). However, courts' definitions of 'favorable' differ:
The first, and most rigid [approach], requires that the action have gone to judgment resulting in a verdict of acquittal, in the criminal context, or no liability, in the civil context. The second permits [an action for malicious prosecution] even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff was innocent, in the criminal context, or not liable, in the civil context. The third approach, while nominally adhering to the "favorable termination" requirement, in the sense that any outcome other than a finding of guilt or liability is favorable to the accused party, permits a malicious prosecution or vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is withdrawn without either a plea bargain or a settlement favoring the party originating the action.DeLaurentis v. City of New Haven , [597 S.2d 807, 820 (Conn. 1991)] (emphasis in original) (footnotes omitted)." Id. at 74.
- "We reject the first approach, requiring a final judgment on the merits, because it permits a wrongdoer to escape liability for institution of a malicious prosecution simply by having the suit dismissed prior to trial. With regard to the second approach, requiring plaintiff to demonstrate an inference of innocence, we agree with the DeLaurentis court that this demonstration more properly relates to plaintiff's burden of proving absence of probable cause. See id. at 251, 597 A.2d at 820. Instead, we are persuaded, and now hold, that abandonment or withdrawal of an allegedly malicious prosecution is sufficient to establish a final and favorable termination so long as such abandonment or withdrawal was not accompanied by a compromise or settlement, or accomplished in order to refile the action in another forum. Accord [RESTATEMENT (SECOND) OF TORTS §§ 674 comment j, 660 (1977)]." Id.
- "In response to Plaintiffs' assertion that final termination in their favor did not occur until the district court entered its April 5, 1989 order dismissing them from the action, we have previously noted that the effect of the amended complaint was to remove Plaintiffs from the lawsuit. Therefore, at the time Plaintiffs procured their order of dismissal, there was no suit pending against them to be dismissed. Although one would customarily seek a formal order of dismissal in these circumstances, delay in doing so does not postpone the running of the statute of limitations." Id.
- "On February 16, 1988, when Defendants filed the amended complaint, Plaintiffs received notice that they were no longer being proceeded against in Defendants' RICO action. Under the facts presented, any cause of action Plaintiffs may have had for malicious prosecution accrued on February 16, 1988, and therefore the present suit, instituted on April 4, 1990, is barred by the one-year statute of limitation." Id. at 75.
Other Sources of Note: Tenn. Code Ann. § 28-3-104(a).