IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
HELEN S. ROGERS, )
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9611-CV-00500
VS. )
) Davidson Circuit
TOM E. WATTS, JR.,
)
)
No. 95C-1848 FILED
)
Defendant/Appellant. ) July 2, 1997
Cecil W. Crowson
DISSENTING OPINION Appellate Court Clerk
I respectfully dissent from the majority opinion on two grounds: (1)
probable cause and (2) damages -- neither of which is presented with much clarity
in the briefs. But the issues are of such importance to the practice of law in this
state that I feel they should be addressed.
Mr. Watts had a judgment against Ms. Rogers’ client. While the case
was on appeal they agreed to settle it, and Ms. Rogers represented that the money
would be wired to her trust account “around the first of next week.” With that
assurance, Mr. Watts persuaded a judgment creditor of his client to release an
execution by promising that the money would shortly be available to pay the
judgment. When the settlement fell through, Mr. Watts was sued by the creditor
who had released the execution. Mr. Watts filed a third party claim against Ms.
Rogers for a judgment against her in the event he was held liable.
At this point, who would deny that Mr. Watts had probable cause to
sue Ms. Rogers for indemnity? Ms. Rogers concedes (and the trial judge found)
that Mr. Watts had probable cause to sue her for indemnity based on her negligent
misrepresentations. (She disputes any negligence on her part, but whether Mr.
Watts would have been successful in his action is quite another matter from
whether he had probable cause to bring it.) Unfortunately, Mr. Watts did not sue
for negligence. He alleged that the representations made by Ms. Rogers were
fraudulent. At the trial, the trial judge denied Mr. Watts’ motion to amend his
complaint to allege negligence.
I realize that an allegation of fraud by a lawyer against another 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 result in a claim of malicious prosecution.
“In order to establish the lack of probable cause in instituting a civil
proceeding, it must appear that the suit was filed primarily for a purpose other than
that of securing the proper adjudication of the claim in which the proceedings are
based.” Buda v. Cassel Bros., Inc., 568 S.W.2d 628 (Tenn. App. 1978)(citing
Restatement of Torts, Second, § 674). In my view a defendant in a malicious
prosecution case has established a defense if he proves that he had probable
cause to seek the relief involved in the original action; he is not exposed to liability
if he fails to prove the theory he uses in seeking the relief. A simple example will
illustrate the difficulty created by holding otherwise. Assume that under our liberal
rules of pleading Mr. Watts had pled his case under the alternative theories of
fraud and negligent misrepresentation. See Rule 8.02(2), Tenn. R. Civ. P. If the
trial judge dismissed the fraud claim and entered judgment on the negligence
claim, would Mr. Watts be facing an action for malicious prosecution because he
did not prove the elements of fraud? I do not think he should be.
The second reason for my dissent flows from the first. The damages
awarded to Ms. Rogers all related to the fact that she had been sued -- not to the
fact that she had been sued for fraud. She proved the attorney’s fees incurred in
2
defending the original claim and that she had to pay a higher rate of interest on a
loan because she revealed on the loan application that she had been sued. The
trial judge specifically found that Ms. Rogers had not suffered any damage to her
reputation. I do not think she has suffered any damages peculiarly related to the
fraud claim.
Therefore, I dissent.
___________________________
BEN H. CANTRELL, JUDGE
3