                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE

          EDNA J. KELLEY, ET AL. v. JAMES C. TOMLINSON, ET AL.

                  Direct Appeal from the Circuit Court for Davidson County
                         No. 98C-1532    Barbara N. Haynes, Judge



                   No. M1999-01176-COA-R3-CV - Decided June 16, 2000


The trial court granted summary judgment to the defendants in this malicious prosecution case.
Because we find that the plaintiffs raised genuine issues of material fact in regard to the existence
of probable cause in the antecedent defamation case, we reverse.

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

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH and CAIN , JJ., joined.

G. Kline Preston, IV and Lawrence D. Wilson, Nashville, Tennessee, for the appellants, Edna J.
Kelly and Jeanette M. Coke.

John E. Herbison, Nashville, Tennessee, for the appellees, James C. Tomlinson and Charles
McKelvey.

Darrell G. Townsend, Nashville, Tennessee, for the appellee, Dan R. Alexander.


                                             OPINION

                                    I. CHANGES AT CITY HALL

        This malicious prosecution lawsuit was filed after we affirmed the trial court’s dismissal of
the antecedent defamation suit. Tomlinson v. Kelley, 969 S.W.2d 402 (Tenn. Ct. App. 1997).
Although we discussed the circumstances that led to the alleged defamation in our earlier opinion,
we must recite them again in order to address the issue of probable cause, which will be dispositive
of the current appeal. To avoid confusion, in this section we will refer to the parties by their proper
names rather than as “plaintiffs” or “defendants”, for the plaintiffs in the defamation case became
the defendants in the malicious prosecution case, and vice versa.
        In July of 1995, the commissioners of the City of Berry Hill were James Tomlinson, Charles
McKelvey and Harold Spray. Mr. McKelvey also served as the appointed mayor. Dan Alexander
was the city attorney. A copy of the newsletter of the City of Berry Hill dated August 1, 1995
chronicled several changes in this line-up. According to the newsletter, Mr. McKelvey announced
his resignation as commissioner and mayor on July 10; the appointment of Mr. Tolby McPheron as
commissioner in his place was announced at a senior breakfast on July 11; and Mr. McKelvey was
hired as City Manager after a special meeting on July 17. The signatures of Tomlinson, Spray and
McPheron were on the bottom of the newsletter.

       Edna Kelley and Jeannette Coke were long-time residents of Berry Hill who frequently
attended meetings of the City Commission. In February, 1996, the earlier-published newsletter was
brought to their attention. At that time, Ms. Kelley’s son, Cliff Kelley, was a candidate for the
commissioner’s seat held by Mr. Tomlinson. Ms. Coke was Mr. Kelley’s campaign treasurer. The
newsletter aroused the interest of the two ladies, and they decided to go to City Hall to look at the
minutes of the Board of Commissioners.

        According to Ms. Kelley, she read the July 10 minutes on this occasion, and they contained
no reference to Mr. McKelvey’s resignation. She also claimed that Mr. McKelvey came over to the
counter where she and Ms. Coke were reading, and they asked him why there was no reference to
his resignation in the minutes. He looked at the minutes, and responded that it was because he
resigned after the meeting was over.

         Ms. Kelley and Ms. Coke returned to City Hall twice more to look at the minutes. They
claim that the first time they were denied access to the minutes. They returned again, and noticed
that this time the last paragraph in the minutes did discuss Mr. McKelvey’s resignation. It reads in
pertinent part as follows:

                There being no further business on the agenda . . . Commissioner Spray read
       a letter from Mayor McKelvey announcing that he was resigning as Mayor of City
       of Berry Hill effective as of mid-night on the night of July 10, 1995.

       Upon reading this paragraph, Ms. Kelley exclaimed “They’ve changed the minutes. We’ve
got them now. We just don’t have any proof.” On February 21, Ms. Coke contacted Aissatou
Sidime, a reporter for the Tennessean, and told her that she had been refused access to the minutes,
and that someone had altered them. She also told the reporter about the contents of the newsletter.

       On March 7, 1996, the Tennessean ran an article under Ms. Sidime’s byline with the headline
“Berry Hill election heats up with a meeting controversy.” The article contained accusations by Ms.
Coke and Ms. Kelley that the commissioners had held a secret meeting in violation of state law to
appoint Mr. McPheron as interim commissioner, and that the minutes had been changed to include
Mr. McKelvey’s resignation.




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       The article noted the contradiction between the newsletter announcement of Mr. McPheron’s
appointment on July 11, and the official vote to approve his appointment on August 14. Mr.
McKelvey was also quoted as saying “It’d be a serious offense to change these minutes after they
were approved by the sworn board.”

                                    II. THE DEFAMATION SUIT

         The day the Tennessean article was published, Mr. Tomlinson and Mr. McKelvey met with
Mr. Alexander in Mr. Alexander’s office to discuss what they could do about the activities of Ms.
Kelley and Ms. Coke, and they decided to sue for defamation. The following day, Mr. Alexander
filed a complaint in the Davidson County Circuit Court. The complaint was served on the two ladies
after 5:30 p.m. by a uniformed Berry Hill police officer.

        The allegations of the complaint were that Ms. Coke and Ms. Kelley had “deliberately and
intentionally published false and defamatory allegations” against the two city officials of altering the
minutes of the Board’s July 10, 1995 meeting, and of holding a secret meeting to replace Mr.
McKelvey with Mr. McPheron. The plaintiffs asked for $100,000 in damages.

       Ms. Kelley and Ms. Coke filed a motion for summary judgment asserting that their comments
were protected speech, that they had not acted maliciously, and that their comments were not
defamatory. The trial court granted their motion on June 18, 1996, and dismissed all claims against
them.

        The commissioners appealed to this court, arguing that the defendants knew or should have
known that the critical statements they made to the Tennessean reporter were false. On appeal, we
noted that public officials had to meet stringent requirements in order to prevail on a defamation suit.
See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

       Because of the importance of free speech on political matters, the Court has held that “debate
on public issues should be uninhibited, robust and wide-open.” 376 U.S. at 270. A public official
who feels that he has been unjustly accused of unethical or illegal acts must prove by clear and
convincing evidence that his accusers acted with malice: that is, that they knew that their accusations
were false, or that they acted in reckless disregard as to their truth or falsity.

        On appeal, we found that the record showed that at the time Ms. Kelley and Ms. Coke spoke
to the Tennessean reporter, they had reasonable grounds for believing that the incumbent city
officials had changed the minutes, and that those same officials had decided on Mr. McPheron’s
appointment long before taking any official action. We accordingly affirmed the judgment of the
trial court.




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                            III. THE MALICIOUS PROSECUTION SUIT

       On June 4, 1998, Ms. Coke and Ms. Kelley filed suit for malicious prosecution and abuse of
process, naming Mr. Tomlinson, Mr. McKelvey, and Mr. Alexander as defendants. They later
amended their complaint to add a claim for civil conspiracy.

        The plaintiffs claimed that there had been no legal basis for the defamation suit, that the
action was filed with the improper motive of silencing them, and that they suffered fear, anxiety, and
mental and physical injury as a result of the lawsuit. Ms. Kelley and Ms. Coke asked for $10,000
in compensatory damages, and an unspecified amount of punitive damages.

       After the trial court dismissed the abuse of process claim, the defendants filed motions for
summary judgment on the claim of malicious prosecution. On August 13, 1999, the trial court
granted summary judgment to two of the defendants:

                After consideration of the entire record in this cause, the Court finds and
       concludes that reasonable minds could not differ as to the existence of probable cause
       for filing of the antecedent civil action. The Plaintiffs have accordingly failed to
       present a prima facie case that the defamation action was filed without probable
       cause. The Court finds further that the Defendants Tomlinson and McKelvey were
       entitled, as a matter of law, to rely on the advice of their attorney, the Defendant
       Alexander, that probable cause existed for filing of the defamation action. In light
       of these findings, the Court also concludes that the Plaintiffs have failed to present
       evidence sufficient to make a prima facie case of civil conspiracy among the
       Defendants to maliciously prosecute a civil action.

        On August 16, the court also granted summary judgment to Mr. Alexander on all claims. The
court rejected subsequent motions by the plaintiffs to be relieved of the summary judgments. This
appeal followed.

                                         IV. THE APPEAL

        The standards for reviewing a summary judgment on appeal are well-known, and were
discussed at length in the antecedent case, Tomlinson v. Kelley, 969 S.W.2d 402 (Tenn. Ct. App.
1997). Decisions granting summary judgment are not entitled to a presumption of correctness on
appeal. Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997). Appellate courts view the evidence in the light
most favorable to the non-moving party, and will affirm the judgment only if there is no genuine
dispute as to material facts, and if the defendants are entitled to judgment as a matter of law. Byrd
v. Hall, 847 S.W.2d 208 (Tenn. 1993).

        In the present case, there are many facts in dispute. The only question is whether those facts
raise a genuine dispute as to the existence of the elements of an action for malicious prosecution.
In order to prevail on a malicious prosecution claim, a plaintiff must prove that (1) a prior suit or


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judicial proceeding was instituted without probable cause, (2) the defendant brought such prior
action with malice, and (3) the prior action was finally terminated in plaintiff's favor. Roberts v.
Federal Express Corp., 842 S.W.2d 246 (Tenn. Ct. App. 1992). There can be no dispute that the
disposition of the defamation suit establishes the third element for malicious prosecution.

                                           A. MALICE

         The definition of malice for purposes of a malicious prosecution lawsuit is not the same as
it is in a defamation case. Any improper motive is sufficient to constitute malice when malicious
prosecution is charged. Lawson v. Williamson, 447 S.W.2d 369 (Tenn. 1969). Ill will or personal
hatred need not be shown, though these would certainly be sufficient to establish malice.

        Deposition testimony in the record reveals some possible motives for filing the defamation
lawsuit. A city employee related a conversation that occurred between herself and Charles
McKelvey just before suit was filed. She stated that Mr. McKelvey said that he wanted to scare the
ladies so they would shut up and not create a lot of disturbance. He also said he was going to sue
them so they would have to hire a lawyer and pay for it. A former city commissioner testified that
McKelvey later “. . . told me that he didn’t care about the lawsuit, that it had served its purpose
anyway, that we were just trying to quieten the girls down.”

       The trial court did not address the question of malice, probably because there could be no
doubt that there was sufficient evidence in the record to infer the existence of improper motive on
the part of the defendants. The court instead based its decision solely on a finding of lack of
probable cause.

                                      B. PROBABLE CAUSE

        Appellees argue that it is plain from the record that reasonable minds could not differ that
they had probable cause to file the defamation suit. They do not elaborate very much on this bare
assertion, but instead rely heavily upon the deposition testimony of attorney Alexander that he
thoroughly investigated the facts of the case before filing suit, and that the minutes of the City
Commission could not have been changed without his knowledge. The appellees characterize
arguments in regard to contradictions between Mr. Alexander’s testimony and that of the other
deponents as “quibbling.”

       Appellees also point out that the requirements of probable cause are less stringent in civil
proceedings than in criminal:

       “. . . less in the way of grounds for belief will be required to justify a reasonable man
       in bringing a civil, rather than a criminal suit. Sometimes this is expressed by saying
       that want of probable cause must be "very clearly proven" or "very palatable" or that
       "greater latitude" must be allowed than in a criminal case. Apparently, what is meant
       is merely that the instigator need not have the same degree of certainty as to the facts,


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        or even the same belief in the soundness of his case, and that he is justified in bringing
        a civil action when he reasonably believes that he has a good chance of establishing it
        to the satisfaction of the court or the jury.”

Morat v. State Farm Mutual Auto Insurance Co., 949 S.W.2d 692, 695 (Tenn. Ct. App. 1997)
quoting Prosser and Keeton on Torts, 5th Ed. § 120, p. 893. See also Kauffman v. A.H. Robins Co.,
223 Tenn. 515, 523 (Tenn. 1969).

         While we acknowledge this distinction, we must also point out that the burden of proof is
more stringent for a defamation lawsuit like the present one than it would be for other types of civil
suits. As we stated above, in order for public officials to prevail in a defamation lawsuit, they must
prove by clear and convincing evidence that their accusers knew that their allegedly defamatory
statements were false or that they made such statements in reckless disregard as to their truth or
falsity. See New York Times Co. v. Sullivan, supra. It is not enough to assert (or even to prove) that
the accusations are untrue.

        In view of this heightened burden, a public official contemplating a defamation lawsuit
against a citizen must make a thorough investigation of the circumstances behind the publication
that offended him, to determine whether the prospective defendants had some reasonable basis for
believing in the truth of the allegedly defamatory statements. See Cohen v. Cook, 462 S.W.2d 502,
506 (Tenn. Ct. App. 1969).

        In the present case, it is not completely certain that the commissioners had violated the Open
Meetings Law, or that someone had changed the minutes of the June 10 meeting. However, it is
clear to this court that a thorough investigation would have revealed that Ms. Kelley and Ms. Coke
had a basis for so believing.

         Mr. Alexander testified that he did make such an investigation, but contradictions between
his testimony and that of the other deponents raise questions of material fact as to his credibility, as
well as to whether the purported investigation was in fact adequate. For example, Mr. Alexander
testified that Ms. Coke and Ms. Kelley approached him at City Hall and told him that the minutes
have been changed, and he told them they were mistaken. The plaintiffs both denied that they ever
had a conversation with Alexander regarding the minutes. Mr. Alexander also claimed to have had
a conversation with Clarence Watson, a former city commissioner, in which he explained that if the
minutes had been tampered with he “would be the first one to raise the red flag.” Mr. Watson’s
affidavit states unequivocally that no such conversation ever took place.

        Mr. McKelvey and Mr. Tomlinson deny that they possess any advanced legal knowledge, and
in depending so heavily on the testimony of Mr. Alexander, they set up their second line of defense:
that they relied upon the advice of their attorney in filing suit, and thus that even if we find there to
have been no probable cause, they themselves cannot be held liable.




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        The defense of advice of counsel is available, however, only to defendants who have
disclosed to their attorney all the relevant information that is in their possession, as well as all the
information that can be obtained through reasonable diligence. Sullivan v. Young, 678 S.W.2d 906
(Tenn. Ct. App. 1984). In the present case, it appears that McKelvey and Tomlinson did not bother
to disclose to Mr. Alexander vital information that would have helped him to determine whether
there was probable cause for the defamation suit.

       For example, Mr. Alexander was not informed of the conversation at City Hall between the
appellants and Mr. McKelvey, which set in motion the chain of events that ultimately led the
appellants to accuse the commissioners of changing the minutes. Without knowledge of this
information, it was easy for Mr. Alexander to believe that the accusation was reckless; with it, he
might have shown more restraint before advising his clients that they had grounds for filing suit.

        Mr. Alexander also testified that he did not see the August 1 newsletter until after filing suit.
It is unclear whether he was at fault for not seeking it out and reading it (the newsletter was
mentioned in the Tennessean story, which he did read), or whether McKelvey and Tomlinson were
at fault for not bringing it to his attention. In any case, the importance of the newsletter to the
question of probable cause cannot be overstated, because it first led Ms. Kelley and Ms. Coke to
believe that the Board of Commissioners had violated the open meetings law. There also can be no
doubt that Mr. Tomlinson and Mr. McKelvey had knowledge of its contents: not only did Tomlinson
sign the newsletter, but there was testimony that McKelvey participated in its preparation.

        In view of these facts, it appears to us that Mr. McKelvey and Mr. Tomlinson cannot avail
themselves of the defense of advice of counsel. Since the record of this case contains genuine issues
of material fact as to the question of probable cause, summary judgment should not have been
granted to the defendants. Should the case proceed to trial, the question of probable cause will be
for the jury to decide. See Roberts v. Federal Express Corp., 842 S.W.2d 246 (Tenn.1992).

                                                   V.

       We reverse the judgment of the trial court. Remand this cause to the Circuit Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
appellees, James C. Tomlinson, Charles McKelvey and Dan R. Alexander.




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