                       IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE                  FILED
                                                                  June 18, 1999
RICHARD TUCKER AND                    )
                                                                Cecil W. Crowson
JOE DIFIORE,                          )
                                                               Appellate Court Clerk
                                      )
       Plaintiffs/Appellees,          )      Montgomery Circuit No. C8-491
v.                                    )
                                      )      Appeal No. 01A01-9708-CV-00426
CHRISTOPHER CARR TURNER,              )
                                      )
       Defendant/Appellant.           )



           APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                        AT CLARKSVILLE, TENNESSEE


                       THE HONORABLE JAMES E. WALTON, JUDGE


For the Plaintiffs/Appellees:         For the Defendant/Appellant:

James D. Kay, Jr.                     Gregory D. Smith
Bridgett A. Wohlpart                  Clarksville, Tennessee
Nashville, Tennessee



                                      AFFIRMED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                             OPINION

       This malicious prosecution case stems from a previous separate malicious prosecution

lawsuit. The defendant in this case was charged with certain crimes; a grand jury later cleared him

of the charged crimes. The defendant then filed a malicious prosecution and abuse of process case

against the two plaintiffs in this case. The defendant in this case subsequently confessed to the crime

and nonsuited his malicious prosecution case. The plaintiffs in this case then filed a malicious

prosecution case against the defendant. During the jury trial, the trial court denied both the

plaintiffs’ and defendant’s request for a directed verdict. The jury subsequently found in favor of

the plaintiffs and awarded compensatory and punitive damages to the plaintiffs. The defendant

appeals. We affirm.

       On October 28, 1990, the defendant, Christopher Turner (“Turner”), acted as a “lookout” in

the burglary and theft of items from a truck belonging to plaintiff Richard Tucker (“Tucker”).

Plaintiff Joe Difiore (“Difiore”), a detective with the Clarksville Police Department, was assigned

to the case. Several leads indicated Turner’s involvement in the burglary, causing Difiore to seek

an indictment against Turner. Difiore testified in the grand jury proceedings against Turner. At the

grand jury proceeding, Turner lied under oath and denied his involvement. This testimony plus

Turner’s two favorable polygraph tests led the grand jury to return a “no true bill,” clearing Turner

of the charges.

       On February 25, 1991, within days of the grand jury proceeding, Turner filed a lawsuit

against Tucker and Difiore. He was represented by his father, attorney Cleveland Turner.1 The

lawsuit alleged malicious prosecution and abuse of process, and sought one million dollars in

damages. Pretrial activity ensued.

       During the investigation of Turner’s involvement in the burglary and after the lawsuit against

Tucker and Difiore was filed, there was considerable publicity in the media about the matter,

including articles in the Nashville and Clarksville newspapers. One article, dated December 21,

1990, contains a statement by Cleveland Turner that “When it’s all over with, we’re going to have

our say and it’s going to be at 8th and Broadway in Nashville.” The article notes that this is the

location of the federal court house in Nashville. He continues, “Somebody’s going to pay. When



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               Turner alleges that he did not know about the lawsuit until after it was filed.
However, it is undisputed that once he learned it had been filed, he allowed it to proceed.
it’s all over with, there’s going to be a day of reckoning.” He further stated, “The people of

Clarksville should know that they are subsidizing people grinding their own axes.” Joyce Turner,

Christopher Turner’s mother, states that, “I will not rest until I get even with Joe Difiore. I will get

him.”

        Several months later, Turner was implicated by other persons involved in the burglary of

Tucker’s truck. On July 1, 1991, Turner admitted to his involvement in the burglary and theft. On

July 2, 1991, Turner voluntarily nonsuited the case against Tucker and Difiore. Turner later entered

a nolo contendere plea in exchange for two years probation, a thousand hours of community service,

and restitution.

        After Turner’s malicious prosecution lawsuit was nonsuited, Tucker and Difiore (“plaintiffs”)

each filed separate malicious prosecution lawsuits against Turner, seeking damages for the

approximately five month period in which Turner’s malicious prosecution case was pending. These

two lawsuits were later consolidated into this action, which was tried before a jury.

        The evidence at trial showed that the considerable publicity surrounding the original

malicious prosecution suit against Tucker and Difiore adversely affected them. Tucker testified that

the earnings from his construction company suffered due to negative newspaper articles and that

people approached him on the street and asked him why he was persecuting Turner. This caused

him humiliation and embarrassment. Tucker testified that although his insurance company agreed

to answer the complaint, the company had not promised continued coverage.

        Difiore testified about the numerous hours he spent discussing the case with his attorney, the

negative comments made by others, and the embarrassment and humiliation caused by the suit.

Difiore also stated that he did not sleep through a single night while the case was pending and that

he lost forty-five pounds in the first two to three months after the suit was filed. The newspaper

article referred to above was introduced to show how the media publicity affected Difiore’s state of

mind. The article referred to “somebody” having to “pay” and that Turner’s family would “get”

Difiore. These statements, Difiore testified, caused him to worry about possible bankruptcy and the

safety of his family. Difiore testified that being sued for malicious prosecution made him realize his

liability as a detective, and prompted him to take a pay cut and switch to a lower paying non-

detective position with the police department.




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        The plaintiffs as well as the defendant Turner filed motions for a directed verdict. Turner’s

motion alleged that, since the underlying suit was nonsuited, the plaintiffs failed to prove an essential

element of their claim, a final termination of the underlying suit in their favor. Both motions for

directed verdict were denied.

        The jury returned a verdict in favor of Tucker and Difiore, awarding compensatory damages

of $52,000 to Tucker and $10,500 to Difiore. The jury also awarded punitive damages of $50,000

to Difiore. Tucker waived his right to punitive damages after the case was submitted to the jury and

after the jury returned a verdict in his favor indicating that he was entitled to punitive damages.

Turner now appeals the trial court’s denial of his motion for directed verdict.

        On appeal, Turner asserts that the trial court should have directed a verdict in his favor

because the plaintiffs failed to prove an essential element of malicious prosecution. Turner contends

that, since the underlying suit was nonsuited, there was no final termination of the prior action in

Tucker and Difiore’s favor, an essential element of the claim. Turner also argues that the trial court

erred in allowing the plaintiffs to testify as to their mental and emotional damages without presenting

expert testimony.

        When reviewing a motion for a directed verdict, the appellate court must look to all the

evidence, take the strongest legitimate view of the evidence in favor of the opponent of the motion,

and allow all reasonable inferences in favor of that party. After discarding all countervailing

evidence, if there is any dispute as to any material fact, or any doubt as to the conclusions to be

drawn from the evidence as a whole, the motion must be denied. See Conatser v. Clarksville Coca-

Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v. Tennessee Farmers Mut. Ins. Co.,

922 S.W.2d 887, 891 (Tenn. App. 1995). A directed verdict cannot be sustained if there is material

evidence in the record which would support a verdict for the defendant under any of the theories the

defendant had advanced. See Conatser, 920 S.W.2d at 647.

        In a malicious prosecution action, the plaintiff must prove three elements: (1) that the

defendant instituted a prior suit or judicial proceeding against the plaintiff without probable cause,

(2) that the defendant brought the action with malice, and (3) that the action ended in a final

determination in favor of the plaintiff. See Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992);

Kauffman v. A. H. Robins Co., 448 S.W.2d 400, 402 (Tenn. 1969). We must first determine

whether a voluntary nonsuit satisfies the third element, requiring a final determination in favor of

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the defendant in the underlying action.

       Turner maintains that, at the time of the nonsuit, Tennessee law was clear that a nonsuit was

not a final determination in favor of the defendant in the underlying action. See Price v. Boyle Inv.

Co., 1990 WL 60659 (Tenn. App. May 11, 1990). However, less than a year after Turner voluntarily

nonsuited his malicious prosecution action against Tucker and Difiore, the Tennessee Supreme Court

held that a nonsuit is a final determination in favor of the defendant. See Christian v. Lapidus, 833

S.W.2d 71 (Tenn. 1992). The Court stated,

       [W]e are persuaded, and now hold, that abandonment or withdrawal of an allegedly
       malicious prosecution is sufficient to establish a final and favorable termination 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 74 (citing Restatement (Second) of Torts § 674, cmt. j (1977)). Under Lapidus, then, the

nonsuit in this case was a final determination in the defendants’ favor. Tucker and Difiore argue that

Lapidus should be applied retroactively to this case. Turner argues against the retroactive

application of Lapidus, and maintains that Price controls.

        In Price, cited by Turner, the defendant gave notice that he was going to amend his cross-

claim to include malicious prosecution. The plaintiff then sought a voluntary nonsuit. The trial

court denied the nonsuit because it believed that the nonsuit would cause the defendant to suffer a

legal detriment, namely that the defendant would be prevented from asserting his malicious

prosecution claim because there would be no final judgment in his favor. The appellate court

affirmed the trial court’s denial of the nonsuit, noting the plaintiff’s ability to reinitiate the action

against the defendant after a voluntary dismissal without prejudice: “Since it was a voluntary

dismissal, the suit readily could have been revived at anytime within the year. To call this a

‘termination’ is a misnomer.” Price, 1990 WL 60659, at *4.

        Price indicated that its holding should be limited to the facts of that case. The Court quoted

the following, describing it as “appropriate and applicable to the case at bar”:

        “We do not mean to imply that by filing a counterclaim in malicious prosecution, or
        by professing an intention to do so later, any defendant may defeat any motion for
        dismissal without prejudice. Such a rule would undoubtedly make it impossible for
        a plaintiff ever to dismiss voluntarily without prejudice. Our decision is limited very
        closely to the facts of this case.”

Id. at *5 (quoting Selas Corp. of Am. v. Wilshire Oil Co. of Tex., 57 F.R.D. 3, 7 (E.D. Pa. 1972)).

Price also quotes with approval the following excerpt from the Restatement of Torts: “Whether a



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withdrawal or an abandonment constitutes a final termination of the case in favor of the person

against whom the proceedings are brought and whether the withdrawal is evidence of a lack of

probable cause for their initiation, depends upon the circumstances under which the proceedings are

withdrawn.” Id. at *4. (quoting Restatement (Second) of Torts § 674, cmt. j. (1976)).

       In this case, Turner confessed to participation in the burglary shortly before the underlying

lawsuit was nonsuited. Under Rule 11 of the Tennessee Rules of Civil Procedure, Turner could not

have refiled the malicious prosecution case without risking sanctions. Therefore, the nonsuit

effectively terminated any further action by Turner against the defendants Tucker and Difiore.

Consequently, even under the law prior to Christian v. Lapidus, the nonsuit under these facts would

be considered a final determination in the defendants’ favor.

       In addition, it is also clear that Lapidus should be applied retroactively in this case. The

doctrine of nonretroactivity limits the circumstances under which a judicial decision should be

applied retroactively. See Luna v. Clayton, 655 S.W.2d 893, 899 (Tenn. 1983) (citing Great

Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360

(1932)). The doctrine of nonretroactivity applies only where

       (1) the decision at issue either establishes a new principle of law by overruling clear
       past precedent or decides an issue of first impression whose resolution was not
       clearly foreshadowed, (2) in light of the prior history of the rule in question, its
       purpose and effect, retrospective application will retard its prospective operation, and
       (3) the decision, if applied retroactively, "could produce substantial inequitable
       results" to the instant litigants.

Id. (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)).

       The Tennessee Supreme Court again discussed retrospective application of judicial decisions

in Marshall v. Marshall, 670 S.W.2d 213 (Tenn. 1984). The Court in Marshall opined that if a

party justifiably relies on a subsequently overruled judicial decision and those reliance interests

would be defeated by retroactive application of the overruling decision, the overruling decision

should be limited to prospective application. See id. at 215 (citing Annotation, Overruling

Decisions--Application, 10 A.L.R.3d 1371, 1386 § 5(b) (1966)). The Marshall Court noted that

“ ‘prospective only’ application of an overruling decision should be limited to a case in which the

hardship on a party who has relied on the old rule outweighs the hardship on the party denied the




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benefit of the new rule.” Id. (citing Traynor, Quo Vadis Prospective Overruling: A Question of

Judicial Responsibility, 28 Hastings L.J. 533 (1977)).

       Utilizing the factors enumerated in Luna, we must first determine whether Lapidus

“overrul[ed] clear past precedent or decide[d] an issue of first impression whose resolution was not

clearly foreshadowed.” Luna, 655 S.W.2d at 899. As noted above, the language in Price indicated

approval of a case-by-case determination of whether a nonsuit constitutes a final determination.

Price, 1990 WL 60659, at *5. Therefore, Price cannot be considered “clear past precedent” on the

issue of whether a nonsuit is a final determination in favor of defendants. Second, there is no reason

why retrospective application of Lapidus would “retard its prospective operation.” Luna, 655

S.W.2d at 899. Third, there is no evidence that the retroactive application of Lapidus would produce

“substantial inequitable results.” Id. Although Turner argues that he relied on Price when he took

a nonsuit, in light of Turner’s confession, he had no choice except to nonsuit the underlying lawsuits,

regardless of Price. Under all of these circumstances, Turner has not presented proof of hardship

or reliance that would warrant a “prospective only” application of Lapidus. Consequently, under

Lapidus and considering the facts in this case, Turner’s nonsuit of the underlying lawsuit would be

considered a “final determination” in favor of Tucker and Difiore. Therefore, the elements of a

malicious prosecution claim were satisfied, and the trial court did not err in denying Turner’s motion

for a directed verdict.

        Turner also argues on appeal that the trial court erred in admitting Tucker and Difiore’s

testimony on their mental and emotional distress damages. The trial court is afforded wide discretion

in the admission or rejection of evidence, and the trial court's action will be reversed on appeal only

when there is a showing of an abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co., 850

S.W.2d 439, 442 (Tenn. 1992); Aussenberg v. Kramer, 944 S.W.2d 367, 370 (Tenn. App. 1996);

Davis v. Hall, 920 S.W.2d 213, 217 (Tenn. App. 1995).

        “[T]he elements of damages recoverable in a malicious prosecution suit are those which

‘proximately result to the plaintiff, his person, property, or reputation from a previous unsuccessful

civil or criminal proceeding which was prosecuted without probable cause and with malice’ ”

Pullen v. Textron, Inc., 845 S.W.2d 777, 780 (Tenn. App. 1992) (citing Ryerson v. American Sur.

Co., 213 Tenn. 182, 185, 373 S.W.2d 436, 437 (1963)).

        Turner cites Medlin v. Allied Investment Co., 398 S.W.2d 270 (Tenn. 1966), for the

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proposition that the plaintiffs were required to submit expert testimony to recover for mental and

emotional damages. However, Medlin involved the tort of outrageous conduct, not malicious

prosecution. Medlin addresses mental and emotional distress “unconnected with any independently

actionable tort or with any contemporaneous or consequential objectively ascertainable injury.” Id.

at 272. The Court reasoned that, to recover for mental injury standing alone, a plaintiff must show

serious mental injury to prevent trivial claims. See id. at 274. In a malicious prosecution case,

however, there is an independent tort -- the malicious prosecution. In at least two other Tennessee

malicious prosecution cases, plaintiffs were allowed to testify as to their mental distress without

expert testimony. See Harmon v. McGill, No. 03A01-9311-CV-00404, 1994 Tenn. App. LEXIS

588 (Oct. 20, 1994); Hardin v. Caldwell, 695 S.W.2d 189, 192 (Tenn. App. 1985). We find no

abuse of discretion in the trial court’s admission of the plaintiffs’ testimony on this issue.

        In sum, we find that the nonsuit in this case was a final determination in favor of Tucker and

Difiore, and thus the proof presented at trial proved the essential elements of the plaintiffs’ malicious

prosecution claim. The trial court’s decision to deny Turner’s directed verdict is affirmed. In

addition, we find that the trial court did not abuse its discretion in allowing Tucker and Difiore to

testify about their mental and emotional distress.

        The decision of the trial court is affirmed. Costs are taxed to Appellant, for which execution

may issue if necessary.




                                        HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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