The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§46.2 Brought Against Plaintiff with Malice

The Case: Kelley v. Tomlinson , 46 S.W.3d 742 (Tenn. Ct. App. 2000).

The Basic Facts: City officials filed a defamation action against two city residents who publicly questioned the circumstances surrounding the interim appointment of a member of the Board of Commissioners. The residents won on summary judgment and the trial court dismissed all of the claims. Following dismissal, the resident filed suit against the city officials for malicious prosecution claiming there was no legal basis for the defamation action and that the action was filed for an improper purpose of silencing them and causing them fear, anxiety, and mental and physical injury as a result.

The Bottom Line:

  • "The definition of malice for purposes of a malicious prosecution lawsuit is not the same as it is in a defamation case. Any improper motive is sufficient to constitute malice when malicious prosecution is charged. Lawson v. Williamson, 447 S.W.2d 369 (Tenn. 1969). Ill will or personal hatred need not be shown, though these would certainly be sufficient to establish malice." 46 S.W.3d at 746.
  • "Deposition testimony in the record reveals some possible motives for filing the defamation lawsuit. A city employee related a conversation that occurred between herself and Charles McKelvey just before suit was filed. She stated that Mr. McKelvey said that he wanted to scare the ladies so they would shut up and not create a lot of disturbance. He also said he was going to sue them so they would have to hire a lawyer and pay for it. A former city commissioner testified that McKelvey later '. . . told me that he didn't care about the lawsuit, that it had served its purpose anyway, that we were just trying to quieten the girls down.'" Id.
  • "The trial court did not address the question of malice, probably because there could be no doubt that there was sufficient evidence in the record to infer the existence of improper motive on the part of the defendants. The court instead based its decision solely on a finding of lack of probable cause." Id. at 746-47.

Other Sources of Note: Perry v. Sharber , 803 S.W.2d 223, 225 (Tenn. Ct. App. 1990) ("Malice may be inferred from the absence of probable cause, or from want of reasonable grounds for prosecution as the circumstances appeared to the prosecutor … or as they would have appeared to a person of ordinary circumspection and diligence."); Kerney v. Aetna Casualty & Surety Co., 648 S.W.2d 247 (Tenn. Ct. App. 1982) (holding that a finding of lack of probable cause gives rise to a rebuttable presumption of malice). Compare Smith v. Harford Mut. Ins. Co., 751 S.W.2d 140 (Tenn. Ct. App. 1987) (a finding of malice does not give rise to a presumption of probable cause).

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).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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