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Topic: Malicious Prosecution

Malicious Prosecution - What are the elements for a malicious prosecution claim in Tennessee?

Posted on Oct 16 2012 3:36PM by Attorney, Jason A. Lee

Analysis:  The recent Tennessee Supreme Court decision of Elliot H. Himmelfarb, M.D. et al. v. Tracy R. Allain, No. M2010-02401-SC-S10-CV, 2012 WL 3667440 (Tenn. 2012) discussed the elements for a malicious prosecution claim under Tennessee Law.  This case also addressed whether a lawsuit that is terminated by a voluntary dismissal (nonsuit) without prejudice satisfies one of the requirements for a malicious prosecution claim. 


In this case, Tracy Allain filed a lawsuit asserting a medical malpractice claim against Dr. Elliot Himmelfarb and Dr. Douglas York for an allegedly faulty heart catheterization procedure.  Mr. Allain subsequently filed a notice of voluntary dismissal of the complaint, dismissing the case without prejudice under Tennessee Rule of Civil Procedure 41.01.  One year later, Dr. Himmelfarb and Dr. York filed a complaint against Mr. Allain asserting the prior lawsuit against them constituted malicious prosecution under Tennessee law.  Himmelfarb at 1. 


In order to proceed with a claim for malicious prosecution the plaintiff must establish three elements.  These elements are: (1) the prior lawsuit was initiated against the plaintiff without probable cause; (2) the prior lawsuit was brought with malice; and (3) the prior lawsuit was terminated in favor of the plaintiff.  Himmelfarb at 2 (citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992)).  Under element number (3), requiring the termination of the prior lawsuit in favor of the plaintiff, the termination of the lawsuit must “address the merits of the suit rather than terminating the suit on procedural or technical grounds”.  Himmelfarb at 2 (citing Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn. 2005)).  As a result, the Tennessee Supreme Court in this case addressed whether a voluntary nonsuit was a termination in favor of the plaintiff “on the merits” in order to support a malicious prosecution claim.


The Tennessee Supreme Court noted the majority of jurisdictions have found that a prior voluntary nonsuit should be deemed a termination “on the merits” in order to support a malicious prosecution claim.  Himmelfarb at 3.  Interestingly, the Tennessee Supreme Court...

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TAGS: Malicious Prosecution, Torts, Civil Procedure, Miscellaneous Comments [0]

Tennessee Statutes of Limitation – Statutes of Limitation for Common Tennessee Causes of Action

Posted on Aug 23 2012 8:13AM by Attorney, Jason A. Lee

This post will address the statutes of limitation for several common Tennessee causes of action.  I will also provide the Tennessee statute that is the source for the statutes of limitation for each cause of action.  


It must be noted that fact specific inquiries need to be completed for each and every case.  Each case could have specific facts that could impact whether the statute of limitations bars a particular claim.  The “discovery rule” is one doctrine that has been applied to some Tennessee causes of action.  The Tennessee Supreme Court has found the discovery rule “provides that the statute of limitations begins to run when the injury is discovered, or in the exercise of reasonable care and diligence, the injury should have been discovered. The rule responds to the unfairness of requiring that he [a plaintiff] sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.”  Quality Auto Parts v. Bluff City Buick, 876 S.W.2d. 818, 820 (Tenn. 1994).  There are other potential exceptions to Tennessee statutes of limitation including exceptions for minors or those deemed incompetent under certain circumstances.  See T.C.A. § 28-1-106.


The causes of action and the Tennessee statute of limitation for each are as follows:


1.          Slander - "within six (6) months after the words are uttered."  (See T.C.A. § 28-3-103)

2.          Civil actions for compensatory or punitive damages brought under the Federal Civil Rights statutes - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(3))

3.          False Imprisonment - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(1))

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TAGS: Negligence, Malicious Prosecution, Tennessee Medical Malpractice/Health Care Liability, Statute of Limitations, Civil Procedure, Contracts, Products Liability, Slander/Libel, Wrongful Death Comments [2]

Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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E-mail: jlee@burrowlee.com