                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 October 18, 2013 Session

                SHARYN BOVAT V. NISSAN NORTH AMERICA

                 Appeal from the Circuit Court for Williamson County
                      No. 2012387     Timothy L Easter, Judge



             No. M2013-00592-COA-R3-CV            - Filed November 8, 2013


This civil action is the progeny of a criminal proceeding in which Plaintiff was indicted by
the Williamson County Grand Jury for criminal trespass and stalking following an incident
that occurred at the headquarters of Nissan North America. Plaintiff was convicted of
criminal trespass; however, the stalking charge was dismissed because a corporation is not
defined as a “person” under the stalking statute. Thereafter, Plaintiff filed this action against
Nissan North America asserting claims for malicious prosecution and abuse of process
pertaining to the stalking charge. Nissan filed a motion for summary judgment and a
statement of undisputed facts that was supported by the affidavit of the Williamson County
Deputy District Attorney General who investigated and prosecuted the criminal proceedings.
Plaintiff filed a response opposing Nissan’s motion for summary judgment; however, she
failed to file a statement of disputed facts or any affidavit or deposition testimony to dispute
the facts relied upon by Nissan as Tennessee Rule of Civil Procedure 56.03 requires. After
setting forth its findings of fact and conclusions of law as required by Rule 56.04, the trial
court summarily dismissed the complaint upon the findings that Nissan presented competent
evidence to negate essential elements of Plaintiff’s claims and that Plaintiff failed to create
an issue of disputed material fact regarding any of the grounds relied upon by Nissan. We
have determined that the record supports the trial court’s findings of fact and conclusions of
law. Thus, we affirm the summary dismissal of the complaint.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.

Sharyn Bovat, Oak Brook, Illinois, Pro Se.

Joy Anne Boyd and Brigid M. Carpenter, Nashville, Tennessee, for the appellee, Nissan
North America, Inc.
                                               OPINION

        On or about July 7, 2010, Sharyn Bovat (“Plaintiff”) was arrested for criminal trespass
after refusing to leave the headquarters of Nissan North America. On October 11, 2010, the
Williamson County Grand Jury returned a two-count indictment against Plaintiff, charging
her with stalking and criminal trespass. The case was tried before a jury on February 1, 2012.
The jury found Plaintiff guilty of criminal trespass; however, the trial judge dismissed the
stalking charge on the legal ground that a corporation cannot be the victim of stalking
because a corporation is not defined as a “person” under the stalking statute.

        Six months later, on July 19, 2012, Plaintiff filed this action against Nissan North
America (“Defendant”), asserting claims for malicious prosecution and abuse of process.
Plaintiff contended, inter alia, that Defendant hired a private prosecutor to aid the District
Attorney General in prosecuting the stalking charge. Defendant denies the allegations stating
that the Office of the District Attorney General independently investigated the matter and,
thereafter, presented the stalking charge to a grand jury.1

        Defendant filed a motion for summary judgment on November 29, 2012, supported
by a sworn affidavit of Deputy District Attorney General Terry Wood (“Gen. Wood”) and
a statement of undisputed facts, contending that Plaintiff could not establish the essential
elements of her claims. The motion was based on the principal ground that the affidavit
proved that Gen. Wood, and not Defendant, independently decided to prosecute Plaintiff on
the stalking charge.

        Plaintiff was represented by counsel when the motion for summary judgment was
filed; however, the trial court entered an agreed order permitting Plaintiff’s counsel to
withdraw on January 14, 2013. Thereafter, acting pro se, Plaintiff filed a response to


        1
          Defendant also denies hiring an attorney to prosecute the case. To the contrary, Defendant states
it retained an attorney as authorized by Tennessee Code Annotated § 8-7-401. That statute reads in part:

        (a) A victim of crime or the family members of a victim of crime may employ private legal
        counsel to act as co-counsel with the district attorney general or the district attorney
        general’s deputies in trying cases, with the extent of participation of such privately
        employed counsel being at the discretion of the district attorney general. The district
        attorney general or a deputy shall make the final and concluding argument. The privately
        retained counsel shall immediately inform the district attorney general of such counsel’s
        employment.

Tenn. Code Ann. § 8-7-401(a) (2011).


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Defendant’s summary judgment motion, but Plaintiff did not file a statement of disputed
facts, and she did not file an affidavit or deposition testimony in opposition to the motion to
create a dispute of material facts as Tennessee Rules of Civil Procedure 56.03 requires.

       Following a hearing on January 28, 2013, the trial court granted Defendant’s motion
for summary judgment on both claims. Plaintiff filed a timely appeal contending the trial
court erred by summarily dismissing her complaint.

                                          A NALYSIS

                                   I. S UMMARY J UDGMENT

       Tennessee Rules of Civil Procedure 56.02 permits a party against whom a claim is
asserted to move for summary judgment in the party’s favor as to all or any part of the claim.
Further, Tennessee Rules of Civil Procedure 56.03 provides:

       In order to assist the Court in ascertaining whether there are any material facts
       in dispute, any motion for summary judgment made pursuant to Rule 56 of the
       Tennessee Rules of Civil Procedure shall be accompanied by a separate
       concise statement of the material facts as to which the moving party contends
       there is no genuine issue for trial. Each fact shall be set forth in a separate,
       numbered paragraph. Each fact shall be supported by a specific citation to the
       record.

       Any party opposing the motion for summary judgment must, not later than five
       days before the hearing, serve and file a response to each fact set forth by the
       movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact
       is undisputed for purposes of ruling on the motion for summary judgment only,
       or (iii) demonstrating that the fact is disputed. Each disputed fact must be
       supported by specific citation to the record. Such response shall be filed with
       the papers in opposition to the motion for summary judgment.

       In addition, the non-movant’s response may contain a concise statement of any
       additional facts that the non-movant contends are material and as to which the
       non-movant contends there exists a genuine issue to be tried. Each such
       disputed fact shall be set forth in a separate, numbered paragraph with specific
       citations to the record supporting the contention that such fact is in dispute.




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       If the non-moving party has asserted additional facts, the moving party shall
       be allowed to respond to these additional facts by filing a reply statement in the
       same manner and form as specified above.

(Emphasis added).

       In this case, Defendant was the moving party and Plaintiff was the non-moving party.
As the non-moving party, Plaintiff had the option to either agree that each fact was
undisputed or demonstrate that some or all of the facts were disputed. As the rule expressly
mandates, if Plaintiff elected to dispute any fact, then each fact she disputed had to be
supported by specific citation to the record, meaning a specific citation to an affidavit or
deposition testimony of a witness in the record.

         By opposing the motion for summary judgment, Plaintiff had the affirmative duty to
file a response to each fact set forth by Defendant. Plaintiff failed to dispute any fact set forth
by Defendant. Admittedly, Plaintiff filed a response to the motion for summary judgment
stating her opposition to the motion; however, Plaintiff failed to demonstrate that the facts
Defendant relied upon in making the motion for summary judgment were, in fact, disputed.
When a motion for summary judgment is properly supported, “the adverse party may not rest
upon the mere allegations or denials of the adverse party’s pleading, but his or her response,
by affidavits or otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party.” Tenn. R. Civ P. 56.06.

       “It is well-settled that, when a non-moving party fails to respond to the moving party’s
statement of undisputed facts, the court may consider the facts admitted.” Cardiac Anesthesia
Servs., PLLC v. Jones, 385 S.W.3d 530, 539 (Tenn. Ct. App. 2012) (citing Holland v. City
of Memphis, 125 S.W.3d 425, 428-429 (Tenn. Ct. App. 2003). Thus, due to Plaintiff’s failure
to demonstrate that any of the facts in Defendant’s statement of undisputed facts were
disputed, as required by the rule, all of the facts set forth by Defendant are undisputed.

       Because the material facts are undisputed, the issue for this court to consider is
whether Defendant was entitled to summary judgment, as a matter of law, as to either or both
of Plaintiff’s claims.

                             II. M ALICIOUS P ROSECUTION C LAIM

       There are three essential elements to a malicious prosecution claim: (1) a prior lawsuit
or judicial proceeding was brought against the plaintiff without probable cause, (2) the
defendant brought such prior action with malice, and (3) the prior action terminated in the

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plaintiff’s favor. Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992);
Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992).

       The Williamson County Grand Jury independently issued the indictment of stalking.
An indictment by a grand jury equates to a finding of probable cause. Crowe v. Bradley
Equip. Rentals & Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550, at *5
(Tenn. Ct. App. Mar. 31, 2010); see Parks v. City of Chattanooga, No. 1:02-CV-116, 2003
WL 23717092, at *4 (E.D. Tenn. Dec. 15, 2003) (citing State v. Hudson, 487 S.W.2d 672,
674 (Tenn. Crim. App. 1972)). Therefore, Plaintiff cannot prove the first element of a claim
of malicious prosecution: that the charge was brought against the plaintiff without probable
cause.

       The foregoing notwithstanding, “even though one has probable cause to initiate
criminal charges, there can be liability for the malicious continuation of a criminal
proceeding.” Pera v. Kroger Co., 674 S.W.2d 715, 722 (Tenn. 1984). However, the private
person must take an active part in continuing or procuring the continuation of criminal
proceedings. Id. (citing Restatement (Second) of Torts § 655 (1977)). “[W]here the instigator
has no control over the case once prosecution has begun, his participation will not subject
him to liability,” and, in Tennessee, “a private prosecutor does not control the prosecution.
This is left in the hands of the District Attorney and of the Court.” Id. at 722-23 (citations
omitted). Here, Defendant filed a properly supported motion for summary judgment stating
that Defendant had no control over the prosecution of the stalking charge, and that Defendant
took no active part in procuring the continuation of the prosecution. The affidavit by Gen.
Wood established that he independently decided to pursue prosecution, without any
assistance from Defendant, its attorney, or employees. Therefore, Plaintiff cannot prove the
second element of malicious prosecution: that defendant brought such prior action with
malice.

        Defendant submitted affirmative evidence that negated essential elements of
Plaintiff’s claim of malicious prosecution. In motions for summary judgment, “the moving
party who does not bear the burden of proof at trial shall prevail on its motion for summary
judgment if it: (1) Submits affirmative evidence that negates an essential element of the
nonmoving party’s claim; . . . .” Tenn. Code Ann. § 20-16-101. Defendant negated two
essential elements; therefore, as the trial court correctly found, Defendant was entitled to
judgment, as a matter of law, on the claim of malicious prosecution.

                               III. A BUSE OF P ROCESS C LAIM

        A claim for abuse of process includes the following elements: (1) the existence of an
ulterior motive; and (2) an act in the use of process other than such as would be proper in the

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regular prosecution of the charge. Crowe, 2010 WL 1241550, at *5 (citing Priest v. Union
Agency, 125 S.W.2d 142, 143 (Tenn. 1939)). “[T]he gist of the tort [of abuse of process] is
not commencing an action or causing process to issue without justification, but misusing, or
misapplying process justified in itself for an end other than that which it was designed to
accomplish.” Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 400 (Tenn.
2002) (citing Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986
S.W. 2d. 550, 555 (Tenn. 1999)).

       The test as to whether process has been abused is “whether the process has been used
to accomplish some end which is without the regular purview of the process, or which
compels the party against whom it is used to do some collateral thing which he could not
legally and regularly be compelled to do.” Givens, 75 S.W.3d at 401 (citing Priest, 125
S.W.2d at 143-44). Generally, “the lawful use of a court’s process does not give rise to an
abuse of process claim, and no claim of abuse will be heard if process is used for its lawful
purpose, even though it is accompanied with an incidental spiteful motive.” Id. (citing
Restatement (Second) of Torts § 682 cmt. b (1977)).

        Defendant provided the affidavit of Gen. Wood who stated that he “did not
communicate with any person employed by or associated with [Defendant] in making [his]
decision, nor did [he] consult with . . . the attorney retained by [Defendant] before [he] made
that decision.” Moreover, Gen. Wood states that “there was enough probable cause to submit
to the Grand Jury the evidence of criminal trespass and stalking.” The testimony of Gen.
Wood establishes that Defendant was not responsible for “an act in the use of process,”
which was independently taken by the District Attorney General. See Parks, 2003 WL
23717092, at *8; Crowe, 2010 WL 1241550, at *6 (finding that the decision to prosecute
plaintiff was within the control of the district attorney’s office, and there was no evidence
of defendant’s active participation in plaintiff’s prosecution or misuse of the judicial
process).

       We acknowledge that Plaintiff alleges in her complaint that “the defendant had the aid
and counsel of the . . . former District Attorney General himself . . . to advise it, consult with,
and prosecute the Plaintiff.” This allegation, however, is not evidence; thus, Plaintiff failed
to present, as Rule 56.03 mandates, specific evidence that rebuts the testimony of Gen. Wood
that Defendant had no control over the evidence that was presented to the Grand Jury.
Because this specific fact is undisputed, Plaintiff failed to establish that Defendant engaged
in an act in the use of process other than such as would be proper in the regular prosecution
of the charge. As a consequence, Defendant rebutted an essential element of the claim of
abuse of process, and, therefore, Defendant is entitled to judgment as a matter of law. See
Tenn. Code Ann. § 20-16-101.



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      We affirm the dismissal of all claims by granting summary judgment in favor of
Defendant.

                                      I N C ONCLUSION

       The judgment of the trial court is affirmed in all respects, and this matter is remanded
with costs of appeal assessed against Plaintiff, Sharyn Bovat.


                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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