                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                      Assigned on Briefs August 17, 2001 Session



               JOE T. JONES V. MARY ANN MCMURRAY, ET AL.

                    Appeal from the Circuit Court for Williamson County
                            No. II-99688   Russ Heldman, Judge



                 No. M2000-01959-COA-R3-CV - Filed September 20, 2001



In this malicious prosecution action, Joe T. Jones (“Plaintiff”) appeals the Trial Court’s grant of
summary judgment to the defendants after concluding there was no genuine issue of material fact
supporting Plaintiff’s allegation of fraud surrounding entry of a judgment against Plaintiff in the
underlying lawsuit. We affirm the judgment of the Trial Court.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.


Joe T. Jones, Franklin, Tennessee, pro se Appellant.


Maclin P. Davis, Jr., and Terrence O. Reed, Nashville, Tennessee, for the Appellees Mary Ann
McMurray and R.E. Lee Davies.
                                             OPINION

                                            Background

                On December 13, 1999, Plaintiff sued Mary Ann McMurray (“McMurray”) and
attorney R.E. Lee Davies (“Davies”) for malicious prosecution. The malicious prosecution claim
arises out of a previous lawsuit filed by McMurray against Plaintiff in the General Session Court.
Davies represented McMurray in this underlying lawsuit.

                In this malicious prosecution lawsuit, Plaintiff claims he operated Franklin Carpeting
Company (“Company”) for twenty years, but he “gave” the Company to his wife in 1984 when he
retired. In 1989, Plaintiff’s wife sold the Company to their son, Gary Jones. Plaintiff asserts he has
had nothing to do with the Company and has not shared in its profits for more than ten years.
Plaintiff further alleges that he was sued in the General Sessions Court for $5,400.00 by McMurray,
a dissatisfied customer of the Company, resulting from a sale that occurred well after the Company
was sold to Plaintiff’s son.

                Instead of taking any worthwhile action to defend against the original claim, Plaintiff
simply wrote on the civil warrant “I am not the owner” and mailed it back to Davies. Plaintiff did
not attend the hearing in the General Sessions Court. Since Plaintiff was not present at the hearing,
on April 19, 1999, a default judgment was entered against him for $5,400.00. Because Plaintiff took
no action other than to mail the civil warrant back to Davies prior to the hearing, he did not know
a judgment had been entered against him, at least not until a deputy sheriff showed up at his home
and “levied an execution on Plaintiff’s 1990 Lincoln automobile” in May of 1999.

                Plaintiff then hired an attorney and filed a separate lawsuit in Chancery Court seeking
to have the General Sessions Court judgment set aside. On August 9, 1999, the Chancery Court
dismissed this lawsuit, stating: “When collaterally attacked, the judgment of a court of general
jurisdiction enjoys a presumption of validity unless the record affirmatively shows a lack of personal
jurisdiction.” No appeal was taken from the dismissal of the Chancery Court lawsuit.

               On September 7, 1999, Plaintiff filed a motion for relief from the judgment in the
General Sessions Court. The General Sessions Court denied this motion, concluding that its
previous judgment had become final after 10 days, and that Rule 60 of the Tenn. R. Civ. P., which
provides a mechanism for obtaining relief from a judgment, was not applicable in a general sessions
court. Accordingly, the General Sessions Court concluded there was no basis, statutory or otherwise,
to grant Plaintiff the requested relief. Plaintiff appealed this ruling to the Circuit Court. On
November 30, 1999, the Circuit Court, applying the same rationale as the General Sessions Court,




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concluded that the sessions court judgment was final and dismissed the appeal. Plaintiff did not
appeal to this Court the Circuit Court’s dismissal of the motion for relief from the judgment.1

               In the malicious prosecution action now before this Court, Plaintiff claims that
McMurray and Davies did not conduct a proper investigation to determine exactly who was the
owner of the Company and, therefore, brought the original lawsuit against him without probable
cause and with malice. Jones later amended his complaint to allege fraud on the part of McMurray
and Davies, claiming they knew he was not the owner of the Company.

               McMurray and Davies filed a motion for judgment on the pleadings without any
discovery taking place. The Trial Court concluded that since Jones’ allegations must be deemed to
be true when ruling on a motion for judgment on the pleadings, the motion had to be denied. The
Trial Court’s basis for this ruling was essentially Jones’ claim that McMurray “knew” Jones was not
the proper owner of the Company when suit was filed and that Davies was also aware of this fact.

                 After discovery, McMurray and Davies filed a motion for summary judgment
pursuant to Rule 56 of the Tenn. R. Civ. P. McMurray and Davies relied, in large part, upon answers
to interrogatories and responses to requests for admissions which were not before the Trial Court
when it denied their motion for judgment on the pleadings. McMurray and Davies essentially argued
there was no genuine issue of material fact as to whether there was any fraud. Plaintiff responded
by asserting there was a genuine issue of material fact as to whether McMurray knew Plaintiff was
no longer involved in the Company and whether Davies was made aware of facts sufficient to require
him to cease pursuing the action. The Trial Court granted McMurray’s and Davies’ motion for
summary judgment, concluding there was no genuine issue as to any material fact and no evidence
of “extrinsic fraud”. Plaintiff’s motion to alter or amend the judgment was denied by the Trial Court.
This appeal followed.

                                                        Discussion

             The standard for review of a motion for summary judgment is set forth in Staples v.
CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                          The standards governing an appellate court’s review of a
                   motion for summary judgment are well settled. Since our inquiry
                   involves purely a question of law, no presumption of correctness
                   attaches to the lower court’s judgment, and our task is confined to
                   reviewing the record to determine whether the requirements of Tenn.
                   R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
                   50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
                   S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure


         1
           Since neither the pre vious decisio n of the Chan cery Cour t nor this decisio n of the Circu it Court were appealed,
we expres s no opinio n on the pro priety of these ru lings. Plaintiff is, howev er, bound by those de cisions.

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               56.04 provides that summary judgment is appropriate where: (1) there
               is no genuine issue with regard to the material facts relevant to the
               claim or defense contained in the motion, see Byrd v. Hall, 847
               S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
               to a judgment as a matter of law on the undisputed facts. See
               Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
               1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.

                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party’s burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-
               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).



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                 The best we can surmise from Plaintiff’s pro se Brief, Plaintiff appears to argue, at
most, only that summary judgment was inappropriate because there is a material factual dispute on
the issue of fraud. In Christian v. Lapidus, 833 S.W.2d 71 (Tenn. 1992), our Supreme Court held
that in order to state a claim for malicious prosecution, a 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. Id. at
73. Christian went on to state that the “favorable” component in the third element is necessary
“because a judgment in favor of the original plaintiff is conclusive of probable cause, unless
procured by fraud.” Id. at 74 (emphasis added). In the present case, it is undisputed that Plaintiff
did not receive a favorable outcome in the underlying action. Accordingly, his only way to attack
that unfavorable outcome is to prove it was procured by fraud.

                It is important to note that Plaintiff’s malicious prosecution lawsuit is nothing short
of an independent action collaterally attacking the judgment previously entered against Plaintiff. In
relevant part, Rule 60.02(2) of the Tenn. R. Civ. P. provides that a party may be relieved from a final
judgment for fraud (whether intrinsic or extrinsic) if the motion is made within a reasonable time and
within one year after the judgment was entered. Rule 60.02 also has a savings clause which provides
that: “This rule does not limit the power of a court to entertain an independent action to relieve a
party from a judgment … or to set aside a judgment for fraud upon the court.” While the first part
of Rule 60.02 discussed above expressly applies to intrinsic or extrinsic fraud, the savings clause has
been held to apply only to extrinsic fraud. See Brown v. Raines, 611 S.W.2d 594, 597 (Tenn. Ct.
App. 1980). See also Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 230 (Tenn. Ct. App. 2000)(“The
distinction between intrinsic and extrinsic fraud existed at common law … and is maintained today,
both under the Rules of Civil Procedure and in case law.”). Furthermore, the savings clause found
in Rule 60.02 has been interpreted as “retaining the independent action in equity to impeach or set
aside a judgment for fraud ….” Brown, 611 S.W.2d at 597 (citing Jerkins v. McKinney, 533 S.W.2d
275, 281 (Tenn. 1976)).

                 We are not dealing with the denial of a Rule 60.02 motion on this appeal, and express
no opinion on whether a Rule 60.02 motion would have been the appropriate manner for Plaintiff
to proceed. We discuss Rule 60.02 because that Rule addresses collateral attacks on judgments
allegedly obtained by fraud, which, as stated above, is what the present case actually involves since
Plaintiff first must get around the fact that the underlying judgment was not “finally terminated in
favor of plaintiff.” Christian v. Lapidus, 833 S.W.2d at 73.

                Because this case involves a collateral attack on a judgment, we believe the outcome
of this appeal is resolved by our Supreme Court’s opinion in Jerkins v. McKinney, 533 S.W.2d 275
(Tenn. 1976). In Jerkins, the Court discussed collateral attacks on judgments and adopted the
following reasoning by the United States Court of Appeals for the Tenth Circuit in Winfield
Associates, Inc. v. Stonecipher, 429 F.2d 1087 (10th Cir. 1970):

                Generally, such an independent action must show a recognized
                ground, such as fraud, accident, mistake or the like, for equitable


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               relief and that there is no other available or adequate remedy. It must
               also appear that the situation in which the party seeking relief finds
               himself is not due to his own fault, neglect or carelessness. In this
               type of action, it is fundamental that equity will not grant relief if the
               complaining party 'has, or by exercising proper diligence would have
               had, an adequate remedy at law, or by proceedings in the original
               action * * * to open, vacate, modify or otherwise obtain relief against,
               the judgment.' The granting of relief in this unusual type of
               proceeding lies largely within the discretion of the trial judge. 429
               F.2d at 1090.

Jerkins, 533 S.W.2d at 281, 282.

                In the present case, Plaintiff simply wrote on the General Sessions Court civil warrant
“I am not the owner” and mailed it back to Davies. He did not appear at the trial and took no other
steps to protect his interests or otherwise defend against the lawsuit. This was the only action taken
by Plaintiff, notwithstanding the fact that the warrant commanded him “to appear” at the hearing to
“then and there to answer in a civil action . . . .” If Plaintiff was not the proper party defendant to
that lawsuit as he claims, then this issue could have been litigated in the General Sessions Court and,
if Plaintiff was dissatisfied with the result, it could have been appealed to Circuit Court. None of
this happened because Plaintiff chose not to show up or ascertain what happened at the hearing. The
“fault, neglect or carelessness” of Plaintiff is the sole cause for the precarious situation in which he
finds himself. For these reasons, he cannot collaterally attack on the basis of fraud the original
judgment entered against him in the General Sessions Court. Since the General Sessions judgment
must, therefore, stand, it necessarily follows that Plaintiff has not and cannot satisfy a necessary
element to establish a claim for malicious prosecution because the prior action was not finally
terminated in his favor. Defendants negated this essential element of Plaintiff’s claim. Accordingly,
the Trial Court properly granted summary judgment to McMurray and Davies.

               McMurray and Davies have requested they be awarded their attorney fees on appeal
based on their position that Plaintiff’s appeal is frivolous. Exercising our discretion, we decline to
award attorney fees.

                                             Conclusion

                The judgment of the Trial Court is affirmed. This case is remanded to the Trial Court
for further proceedings as may be required, if any, consistent with this Opinion, and for collection
of costs below. Costs of appeal are taxed to the Appellant Joe T. Jones and his surety.



                                                        ____________________________________
                                                        D. MICHAEL SWINEY


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