                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 13, 2011 Session

       ELLIOT H. HIMMELFARB, M.D. ET AL. v. TRACY R. ALLAIN

                 Appeal from the Circuit Court for Williamson County
                         No. 07454    Robbie T. Beal, Judge


                 No. M2010-02401-COA-R10-CV - Filed June 9, 2011


Two physicians filed this malicious prosecution action against a former patient after she
voluntarily dismissed, without prejudice, a medical malpractice action she filed against them.
The defendant, the former patient, moved for summary judgment asserting that the plaintiffs
could not prove the essential elements of a malicious prosecution claim: that the medical
malpractice suit was brought without probable cause, that it was brought with malice, and
that it was terminated in the physicians’ favor. The trial court denied the motion. We have
determined that the issue of favorable termination in this case involves questions of fact and
law, and that fact questions concerning the circumstances surrounding the voluntary
dismissal without prejudice of the medical malpractice action are in dispute. We have also
determined that there are genuine issues of material fact concerning the other essential
elements. Therefore, the defendant’s motion for summary judgment was properly denied.

Tenn. R. App. P. 10 Extraordinary Appeal; 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, JJ., joined.

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy Allain.

M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot Himmelfarb, M.D., Elliot
Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

                                         OPINION

        The plaintiffs in this action are Douglas York, M.D. and Elliot Himmelfarb, M.D. The
defendant is Ms. Tracy Allain, a former patient of Drs. York and Himmelfarb. The genesis
of the parties’ relationship occurred in December of 2004 when Dr. York, a surgeon, placed
a port-a-cath inside Ms. Allain to facilitate intravenous access for treatment of her chronic
pancreatitis. The procedure was successful and uneventful. A post-operative x-ray was taken,
which was interpreted by Dr. Himmelfarb. All of this occurred at Williamson County
Medical Center.

       In April of 2005, Ms. Allain was admitted to Vanderbilt University Medical Center
(“VUMC”) for placement of a new port-a-cath. On April 12, 2005, while still in VUMC, Ms.
Allain was informed by a physician that a guidewire was found in a vein leading to her heart,
which apparently had not been removed during a previous procedure. Ms. Allain states that
the Vanderbilt physician also advised her that the guidewire was “likely” placed there while
she was a patient at Williamson County Medical Center (“WCMC”) in December of 2004.

        On April 10, 2006, Ms. Allain filed a medical malpractice action against Dr. York,
Dr. Himmelfarb, and WCMC alleging that they were responsible for leaving the guidewire
in her vein. Each of the defendants filed separate answers denying any liability and denying
being responsible for the guidewire that was found while Ms. Allain was at VUMC.

        Three months later, on July 14, 2006, Ms. Allain filed a notice of voluntarily non-suit
of her medical malpractice action against Dr. York, Dr. Himmelfarb, and WCMC. An order
dismissing the action without prejudice was entered on July 17, 2006. Prior to dismissing the
Williamson County action against Dr. York, Dr. Himmelfarb, and WCMC, Ms. Allain filed
a similar medical malpractice action in Davidson County Circuit Court asserting that VUMC
and its physicians were responsible for leaving the guidewire in her vein. Soon thereafter,
Ms. Allain’s medical malpractice claim against VUMC was compromised and settled.

        On July 17, 2007, Dr. Himmelfarb and Dr. York, assuming the new role as plaintiffs,
filed this action asserting claims for malicious prosecution and abuse of process against Ms.
Allain.1 Ms. Allain filed an answer, and later filed a motion for summary judgment claiming
that she was entitled to judgment as a matter of law because the plaintiffs were unable to
demonstrate essential elements of their abuse of process and malicious prosecution claims.
Following a hearing on August 23, 2010, the trial court denied summary judgment on the
malicious prosecution claim. The court held that there were disputed issues of material fact
relating to probable cause and malice on the malicious prosecution claim. The court further
held that the element of favorable termination in the malicious prosecution claim, was a
question of fact not law, and found that the voluntary nonsuit was a favorable termination for
the plaintiffs. For reasons unexplained by the record, the trial court did not rule on the abuse
of process claim. Ms. Allain filed a motion for interlocutory appeal pursuant to Tenn. R.
App. P. 9, which the trial court denied. Ms. Allain then filed a timely petition for appeal
pursuant to Tenn. R. App. P. 10, which this court granted.

       1
           WCMC is not a party to this action against Ms. Allain.

                                                    -2-
                                          A NALYSIS

       Ms. Allain contends that the trial court erred in denying her motion for summary
judgment. She insists the defendants are unable to demonstrate the essential elements of the
malicious prosecution claim, and, therefore she is entitled to judgment as a matter of law. She
also contends that the trial court erred in failing to address her motion as it pertained to the
abuse of process claim.

                                              I.
                                   S TANDARD OF R EVIEW

        This appeal arises from the denial of summary judgment. Summary judgment is
appropriate when a party establishes that there is no genuine issue as to any material fact and
that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke,
113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be
resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when
genuine disputes regarding material facts exist. See Tenn. R. Civ. P. 56.04. The party seeking
summary judgment bears the burden of demonstrating that no genuine disputes of material
fact exist and that the party is entitled to judgment as a matter of law. Godfrey v. Ruiz, 90
S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary judgment, the moving party must
affirmatively negate an essential element of the nonmoving party’s claim or show that the
moving party cannot prove an essential element of the claim at trial. Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 83 (Tenn. 2008).

       Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth
Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). Because the resolution
of a motion for summary judgment is a matter of law, we review the trial court’s judgment
de novo with no presumption of correctness. Martin v. Norfolk Southern Ry. Co., 271 S.W.3d
76, 84 (Tenn. 2008) The appellate court makes a fresh determination that the requirements
of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1977). As does the trial court, the appellate court considers the evidence in the light most
favorable to the nonmoving party and resolve all inferences in that party’s favor. Martin, 271
S.W.3d at 84; Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz, 90
S.W.3d 692, 695 (Tenn. 2002). When reviewing the evidence, the appellate court first
determines whether factual disputes exist. If a factual dispute exists, the court then
determines whether the fact is material to the claim or defense upon which the summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn.1993).



                                              -3-
        A party is entitled to summary judgment only if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . . show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. A properly supported motion for summary
judgment must show that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Staples v. CBL & Assocs., Inc., 15 S.W.3d
83, 88 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).
If the moving party makes a properly supported motion, then the nonmoving party is required
to establish the existence of the essential elements of the claim. McCarley, 960 S.W.2d at
588; Byrd, 847 S.W.2d at 215. If, however, the moving party does not properly support the
motion, then the nonmoving party’s burden to produce either supporting affidavits or
discovery is relieved and the motion must fail. McCarley, 960 S.W.2d at 588; Martin, 271
S.W.3d at 83.

       To make this showing and shift the burden of production, a moving party may: 1)
affirmatively negate an essential element of the nonmoving party’s claim; or 2) show that the
nonmoving party cannot prove an essential element of the claim at trial. Martin, 271 S.W.3d
at 83; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd, 847 S.W.2d at 215
n.5. Whichever approach the moving party takes, both require more than assertions of the
nonmoving party’s lack of evidence. Martin, 271 S.W.3d at 83-84. In addition, the moving
party must present evidence that more than “raises doubts” about the ability of the
nonmoving party to prove its claim at trial. Id. at 84. The moving party must produce
evidence or refer to previously submitted evidence. Id.; accord Hannan, 270 S.W.3d at 5.
Thus, to negate an essential element of a claim, a moving party must refer to evidence that
tends to disprove an essential element of the claim made by the nonmoving party. Martin,
271 S.W.3d at 84.

        Ms. Allain, as the moving party, had the burden to negate an essential element of the
plaintiffs’ claim of malicious prosecution or establish that the plaintiffs cannot prove an
essential element of the claims at trial. See Martin, 271 S.W.3d at 83 (citing Hannan, 270
S.W.3d at 5; McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.5). Therefore, Ms.
Allain was required to shift the burden of production to plaintiffs by either affirmatively
negating an essential element of their claim or showing that they could not prove an essential
element of their claim at trial. Martin, 271 S.W.3d at 83; Hannan, 270 S.W.3d at 8-9;
McCarley, 960 S.W.2d at 588.

                                               II.
                              M ALICIOUS P ROSECUTION C LAIM

       There are three essential elements to a malicious prosecution claim: (1) that a prior

                                               -4-
lawsuit or judicial proceeding was brought against the plaintiff without probable cause, (2)
that the prior lawsuit or judicial proceeding was brought against the plaintiff with malice, and
(3) that the prior lawsuit or judicial proceeding terminated in the plaintiff’s favor. Parrish
v. Marquis, 172 S.W.3d 526, 530 (Tenn. 2005) (citing Christian v. Lapidus, 833 S.W.2d 71,
73 (Tenn. 1992); Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992)).

       The trial court held that the first two elements, whether there was probable cause and
whether there was malice, are questions of law and that enough disputed facts existed on
these two issues for the matter to be tried. On the last element, whether the underlying
lawsuit resulted in a favorable termination to Doctors York and Himmelfarb, the trial court
held that this was a question of fact that required an examination of not only the order
dismissing the action, but also the surrounding facts and circumstances. The trial court then
held that Ms. Allain’s voluntary nonsuit, without prejudice, of the medical malpractice action
was a favorable termination for the plaintiffs. For the above reasons, the trial court denied
Ms. Allain’s motion for summary judgment as to the malicious prosecution claim. We have
determined the trial court was correct in denying Ms. Allain’s motion for summary judgment
but for different reasons, which we explain below.

        The first element of a malicious prosecution claim is that the prior lawsuit was filed
without probable cause. The probable cause element in a malicious prosecution action exists
when there are “such facts and circumstances sufficient to create in a reasonable mind the
belief that the accused is guilty of the crime charged.” Leland v. Louisville Ladder Group
LLC, No. M2006-02109-COA-R3-CV, 2007 WL 4440923, at *4 (Tenn. Ct. App. Dec. 5,
2007) (quoting Roberts v. Federal Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992)).
Probable cause is to be determined “solely from an objective examination of the surrounding
facts and circumstances.” Id. (citing Roberts, 842 S.W.2d at 248). “The determination of the
reasonableness of a defendant’s conduct [in a malicious prosecution action] should be made
by a jury.” Roberts, 842 S.W.2d at 248-49.

       Ms. Allain argues that Drs. “York and Himmelfarb cannot point to any material fact
which would show Allain did not have reason or probable cause to file the underlying
complaint in view of the information she had before her and at the time the suit was filed.”
The facts, however, demonstrate that Dr. York told Ms. Allain prior to the filing of the
lawsuit that he was not at fault for leaving the guidewire in and claimed that an x-ray taken
following the procedure he performed demonstrated this fact. Further, Dr. York claims that
a reasonable investigation prior to the filing of the lawsuit would have revealed he was not
the proper party. Conversely, Ms. Allain contends that the x-ray was blurry and did not
clearly indicate that the guidewire was not present following the procedure. Our Supreme
Court has clearly stated that the reasonableness of the defendant’s conduct in the underlying
action must be determined by a jury, if reasonable minds may differ on the issue. See

                                              -5-
Roberts, 842 S.W.2d at 248-49.2 The parties have identified facts in the record to dispute
whether it was reasonable for Ms. Allain to have filed the medical malpractice action against
Drs. York and Himmelfarb. Based upon these facts, we believe reasonable minds may differ
on the issue of probable cause. Therefore, Ms. Allain is not entitled to summary judgment
on this issue.

         The second element of a malicious prosecution claim is that the underlying lawsuit
was brought with malice. Ms. Allain contends that plaintiffs “have presented no proof
beyond the allegations of their complaint that [she] filed the underlying claim with malice
or in the absence of good faith.” Again, we believe Ms. Allain misunderstands her burden
as the moving party on summary judgment. As the moving party, it is her burden to either
negate this element of the plaintiffs’ malicious prosecution claim or demonstrate that they
cannot prove the element at trial. Hannan, 270 S.W.3d at 5. In addition, Ms. Allain as the
moving party must present evidence that more than “raises doubts” about the ability of the
nonmoving parties, Drs. York and Himmelfarb, to prove their claim, or this essential element,
at trial. See Martin, 271 S.W.3d at 84.

       We previously determined that the issue of probable cause was not negated for the
purpose of summary judgment. This is significant because should the jury find that Ms.
Allain lacked probable cause to file the underlying lawsuit, this finding may give rise to an
inference of malice. Sullivan v. Young, 678 S.W.2d 906, 911 (Tenn. Ct. App. 1984). “The
inference is not one of law but is a presumption of fact which may be rebutted, thus making
malice an issue to be decided by the jury where a criminal prosecution is instituted without
probable cause.” Id. (quoting Lewis, 618 S.W.2d at 303). For the reasons stated above, we
have determined that Ms. Allain did not negate the essential element of malice and she did
not demonstrate that the plaintiffs could not demonstrate this element at trial. Therefore, Ms.

        2
          The trial court found this issue was a matter of “law.” While that was once correct, since Roberts
it is a matter of “fact,” as this court noted in Swindle v. Krystal Co.:

        Until the Roberts decision, Tennessee courts have always considered probable cause to be
        a question of law. See Logan, 676 S.W.2d at 951; Cohen v. Cook, 224 Tenn. 729, 731, 462
        S.W.2d 499, 500 (1970); Memphis Gayoso Gas Co. v. Williamson, 56 Tenn. 314, 343
        (1872). However, in Roberts the Supreme Court reasoned that the probable cause
        determination, the conduct of a reasonable man under the circumstances, is in essence no
        different than the determination of negligence. Roberts, 842 S.W.2d at 248. Thus, the Court
        held that “where reasonable minds can differ as to the existence of probable cause a jury is
        to decide the issue.” Id. at 249.

Swindle, No. 02A01-9406-CV-00136, 1995 WL 262419, at *2 (Tenn. Ct. App. May 8, 1995)(emphasis
added).


                                                    -6-
Allain has not established that she is entitled to summary judgment on the issue of malice.

        As for the third essential element, favorable termination, Ms. Allain contends that the
trial court erred in finding that her voluntary nonsuit, without prejudice, constituted a
favorable termination for the plaintiffs. She also contends the trial court erred in holding that
the issue of favorable termination was a question of fact; she insists it is a question of law.

       The Tennessee Supreme Court thoroughly analyzed this issue in Parrish v. Marquis,
172 S.W.3d 526 (Tenn. 2005).3 The Court first looked to its decision in Christian v. Lapidus,
833 S.W.2d 71 (Tenn. 1992), in which it held that abandonment of a civil lawsuit may
constitute a final and favorable termination for a malicious prosecution action ‘“so long as
such abandonment or withdrawal was not accompanied by a compromise or settlement, or
accomplished in order to refile the action in another forum.”’ Id. at 530 (quoting Christian,
833 S.W.2d at 74). The Court noted that the holding in Christian “did not require the plaintiff
in the malicious prosecution action to establish a ‘final judgment on the merits’ or ‘an
inference of innocence’ in addition to the abandonment of the lawsuit,” stating further that
the ruling in Christian was limited to the procedural context of that case, i.e., the
abandonment of a lawsuit. Id. (quoting Christian, 833 S.W.2d at 74). The Court then
reasoned that other procedural dispositions may constitute a favorable termination, stating:

        [A] leading treatise states that “the termination must not only be favorable [to
        the defendant in the underlying proceeding], but must also reflect the merits
        and not merely a procedural victory.” W. Page Keeton et al., Prosser and
        Keeton on The Law of Torts, § 119 (5th ed. 1984) (“Prosser”); see also Foshee
        v. So. Fin. & Thrift Corp., 967 S.W.2d 817, 819-20 (Tenn. Ct. App. 1997)
        (citing Prosser). The vast majority of state jurisdictions follow this rule in
        cases where, as in the present case, the underlying proceeding was a civil
        matter. See Vitauts M. Gulbis, Annotation, Nature of Termination of Civil
        Action Required to Satisfy Element of Favorable Termination to Support
        Action for Malicious Prosecution, 30 A.L.R.4th 572 (1984 & Supp. 2005).

Parrish, 172 S.W.3d at 531 (emphasis added). Furthermore, the Court stated that when
determining “whether a specific result was a favorable termination, a court must examine the
circumstances of the underlying proceeding.” Id. (citing Siliski v. Allstate Ins. Co., 811 A.2d
148, 151 (2002) (citing Restatement (Second) of Torts, § 674, cmt. j (1977))) (emphasis



        3
         In Parrish, the specific issue was whether a dismissal of an underlying action based on the statute
of limitations and standing constituted a final and favorable termination for a subsequent malicious
prosecution action. Id. at 528.

                                                    -7-
added).4 In this regard, the Court noted:

        If a court concludes that “the termination does not relate to the merits –
        reflecting on neither innocence of nor responsibility for the alleged misconduct
        – the termination is not favorable in the sense that it would support a
        subsequent action for malicious prosecution.” Lackner, 159 Cal. Rptr. 693,
        602 P.2d at 395. As the Supreme Court of Vermont has further explained:

                 [I]f the manner of termination, including dismissal, reflects
                 negatively on the merits of the case, it will be considered
                 favorable to the defendant. . . . More specifically, if the
                 dismissal somehow indicates that the defendant is innocent of
                 wrongdoing, it will be considered a favorable termination. . . .
                 On the other hand, if the reason for dismissal is “not
                 inconsistent” with a defendant’s wrongdoing, it will not be
                 considered a favorable termination. . . . If the circumstances
                 surrounding dismissal are ambiguous on this point, the
                 determination should be left for trial.

Parrish, 172 S.W.3d at 531 (quoting Siliski, 811 A.2d at 151–52; citing Union Oil of Calif.
Amsco Div. v. Watson, 468 So.2d 349, 353–54 (Fla. Dist. Ct. App.1985)).

        Based upon the above analysis, our Supreme Court held that the issue of favorable
termination may involve both questions of fact and law. Therefore, in the context of a motion
for summary judgment, if the surrounding circumstances of the termination of the underlying
action are disputed, meaning that material facts relevant to that issue are in dispute, then the
issue should be left for trial. See id. However, if the surrounding circumstances of the
termination of the underlying action are not in dispute, then it is a question of law, which the
trial court may decide on summary judgment. Id. This is also the approach adopted by the
Restatement (Second) of Torts § 681(B), which states that in an action for wrongful civil
proceedings, the court determines whether “the proceeding was terminated in favor of the
plaintiff,” but the jury determines “the circumstances under which the proceedings were
terminated.”



        4
         In Siliski, the Vermont Supreme Court held that a voluntary dismissal without prejudice did not
constitute a favorable termination on the merits, because, after examining the surrounding circumstances,
it was determined that the action was dismissed due to a potential conflict that arose with the defendant’s
representation, and thus, the dismissal was taken to “preserve [the defendant’s] ability to reinstate the claim
should she find substitute counsel,” and thus did not reflect on the merits. Siliski, 811 A.2d at 152.

                                                     -8-
       We acknowledge Ms. Allain’s reliance on this court’s ruling in Lane v. Becker, 334
S.W.3d 756 (Tenn. Ct. App. 2010), to assert that a procedural disposition does not constitute
a favorable termination. As she states, Lane held that a Tenn. R. Civ. P. 41.01 voluntary
dismissal of the underlying case was not a favorable termination because “it was a voluntary
dismissal on procedural grounds and the order did not ‘reflect on the merits’ of the
underlying defamation case.” Id. at 761 (emphasis added). We have determined her reliance
on Lane is misplaced.

       The decision in Lane was based on two principal factors, that the order dismissing the
case without prejudice did not reflect on the merits of the underlying case and that the merits
were never considered by the trial court. Id. at 761-62. The court’s reliance on these two
factors in Lane is clear from the following:

       The order of voluntary dismissal in the underlying action clearly does not
       reflect on the merits of the underlying case. The order is procedural in nature
       and does not refer to the elements of defamation, outrageous conduct, and civil
       conspiracy, or whether there was proof to support the claims or no proof to
       support the claims. The merits of the claims were never considered by the trial
       court in the underlying case. Lane has not established a favorable termination
       for purposes of the malicious prosecution claim. Because an essential element
       of the claim was negated, the trial court’s dismissal of the malicious
       prosecution claim is affirmed.

Id. at 762 (emphasis added).

       Although we are in agreement with Lane, to the extent that a dismissal of the
underlying case on mere procedural grounds that does not “reflect on the merits” is not a
favorable termination, Parrish, 172 S.W.3d at 531, we respectfully differ to the extent the
conclusion in Lane was based on what is stated and what is not stated in “the order of
voluntary dismissal” in the underlying case. As the quote from Lane in the paragraph above
reveals, the conclusion that “Lane has not established a favorable termination for purposes
of the malicious prosecution claim” was based on the following findings: (1) the “order of
voluntary dismissal in the underlying action clearly does not reflect on the merits of the
underlying case,” (2) the “order is procedural in nature,” (3) the order does not indicate
“whether there was proof to support the claims or no proof to support the claims,” and (4)
“the merits of the claims were never considered by the trial court in the underlying case.”
Lane, 334 S.W.3d at 762. Our Supreme Court’s ruling in Parrish is controlling on this issue
and we do not read Parrish as requiring that the order dismissing the underlying case be
based on the merits or that it reflect on the merits. Instead, as Parrish instructs, in the event
the order dismissing the underlying case does not reveal whether termination was on the

                                               -9-
merits or favorable to the former defendant (now plaintiff), we are to make further inquiries
to ascertain the reasons for or the circumstances surrounding the termination.5 Parrish, 172
S.W.3d at 531 (citing Siliski, 811 A.2d at 151) (citing Restatement (Second) of Torts, § 674,
cmt. j)) (stating “[i]n determining whether a specific result was a favorable termination
[particularly when the order does not state such], a court must examine the circumstances of
the underlying proceeding”).

       Our reasoning is further influenced by the rationale for requiring a plaintiff to
establish that termination of the underlying proceeding “was not simply based on mere
technical or procedural grounds.” Id. As our Supreme Court observed in Parrish:

        The rationale for requiring a plaintiff in a malicious prosecution action to
        establish that the favorable termination of the underlying proceeding was not
        simply based on mere technical or procedural grounds is

                 that it tends to indicate the innocence of the accused, and
                 coupled with the other elements of lack of probable cause and
                 malice, establishes the tort [of malicious prosecution].
                 ....

                 It is not essential to maintenance of an action for malicious
                 prosecution that the prior proceeding was favorably terminated
                 following trial on the merits. However, termination must reflect
                 on the merits of the underlying action.

        Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 394
        (1979) (citations omitted) (emphasis added); see also Frey v. Stoneman, 150
        Ariz. 106, 722 P.2d 274, 278 (1986) (favorable termination “indicates in some
        fashion that the accused is innocent of wrongdoing”); Alcorn v. Gordon, 762
        S.W.2d 809, 812 (Ky. Ct. App. 1988) (favorable termination must reflect on
        the merits); Palmer Dev. Corp. v. Gordon, 723 A.2d 881, 884 (Me. 1999)
        (favorable termination must reflect on the merits); Siliski v. Allstate Ins. Co.,




        5
         If the absence of a ruling by the trial court “on the merits” or “reflecting on the merits” were fatal
to a malicious prosecution claim, then an examination of the circumstances surrounding termination of the
underlying case would be superfluous and we do not believe that to be the case.

                                                     -10-
       174 Vt. 200, 811 A.2d 148, 151 (2002) (favorable termination must relate “to
       the merits of the underlying suit or the circumstances surrounding the
       dismissal”).

Parrish, 172 S.W.3d at 531.

       As the authorities clearly state, it is not essential that the underlying action was
favorably terminated following a trial on the merits. Id. at 531 (quoting Lackner, 602 P.2d
at 394). Instead, termination must either reflect on the merits of the underlying action, relate
to the merits of the underlying case or the circumstances surrounding its dismissal, or
indicate that the accused is innocent of the alleged wrongdoing. Id. (citing Alcorn, 762
S.W.2d at 812; Siliski, 811 A.2d at 151; Frey, 722 P.2d at 278).

        For the reasons stated above, we find Ms. Allain’s reliance on Lane misplaced. We
also find that the trial court correctly found that Ms. Allain failed to demonstrate that Drs.
York and Himmelfarb could not establish the element of favorable termination. In Ms.
Allain’s affidavit, which she submitted in support of her motion for summary judgment, she
stated:

       20. In late June of 2006, Mr. Thompson [her attorney] informed me that John
       McCauley from Vanderbilt University Medical Center informed him that it
       may have been Vanderbilt University’s medical personnel who left the guide
       wire in my body.

       21. Mr. Thompson advised me that if he could get confirmation of this new
       information that he would dismiss Dr. York and the other defendants from the
       Williamson County lawsuit.

       23. As soon as I learned from Mr. Thompson that the wire may not have come
       from the act of Dr. York in 2004 and others, I agreed with Mr. Thompson’s
       advice to dismiss all the defendants as soon as possible.

       25. As soon as Mr. Thompson confirmed the wire was more likely left in by
       doctors and medical personnel at Vanderbilt University Medical Center we
       dismissed those claims against Dr. York and others in July of 2006.

      The above testimony, which is undisputed, establishes that Ms. Allain voluntarily
dismissed the medical malpractice action against Drs. York and Himmelfarb when she
determined that doctors at VUMC were at fault for leaving the guidewire in her vein, not Drs.
York and Himmelfarb. Moreover, this evidence “reflects negatively on the merits” of Ms.

                                              -11-
Allain’s previous case against Drs. York and Himmelfarb; thus, it “will be considered
favorable” to them as noted in Parrish. Id. at 531 (quoting Siliski, 811 A.2d at 151-52).
Moreover, this evidence indicates that Drs. York and Himmelfarb are innocent of the alleged
wrongdoing – leaving a guidewire in Ms. Allain’s vein; thus, “it will be considered a
favorable termination.” Id.

      For the above reasons, we affirm, although on different grounds, the trial court’s
determination that Ms. Allain was not entitled to summary judgment on the malicious
prosecution claim.

                                            III.
                                 A BUSE OF P ROCESS C LAIM

        Ms. Allain also contends the trial court erred in failing to address her motion for
summary judgment as to the abuse of process claim. While the trial court did not make a
ruling on the abuse of process claim, we find no error with this in that this appeal is not from
a final judgment; this case is before this court pursuant to a Tenn. R. App. P. 10 interlocutory
appeal, which is not a matter of right. Moreover, we are remanding the case to the trial court
for further proceedings. Thus, on remand, the trial court may rule on Ms. Allain’s previous
motion concerning the abuse of process claim as well as any other motions or issues the
parties may raise as this case proceeds in the trial court.

                                       I N C ONCLUSION

       The judgment of the trial court is affirmed and this matter is remanded to the trial
court for further proceedings consistent with this opinion. Costs of appeal are assessed
against Tracy Allain, Appellant.


                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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