             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                           February 1, 1999

SCOTTIE ALLEN YANT,                       )              Cecil W. Crowson
                                          )             Appellate Court Clerk
       Plaintiff/Appellant,               )
                                          )   Appeal No.
                                          )   01-A-01-9801-CV-00004
VS.                                       )
                                          )   Davidson Circuit
                                          )   No. 96C-2478
ARROW EXTERMINATORS, INC.                 )
                                          )
       Defendant/Appellee.                )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

                THE HONORABLE BARBARA N. HAYNES, JUDGE



JOE F. GILLESPIE, JR.
6408-A Clarksville Highway
Joelton, Tennessee 37080
       Attorney for Plaintiff/Appellant

SHELBY R. GRUBBS
DENISE ARENTH MILLER
MILLER & MARTIN LLP
832 Georgia Avenue
Suite 1000, Volunteer Building
Chattanooga, TN 37402-2289
       Attorneys for Defendant/Appellee




                              AFFIRMED AND REMANDED




                                              BEN H. CANTRELL,
                                              PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
TODD, J.


                                 OPINION
              The manager of an exterminating company brought criminal charges

against the owner of a competing company for the alleged theft of a piece of

equipment. The general sessions court determined that probable cause existed, but

the grand jury declined to indict. The defendant in the criminal case subsequently

filed suit for malicious prosecution. The trial court granted summary judgment to the

civil defendant. We affirm.



                                          I.

                                The Criminal Action



              Mark Evans, an employee of Arrow Exterminators, told Steve Higdon,

his supervisor at Arrow, that a Delta Actisol Exterminating Unit, worth about $2,000,

had been stolen on a Friday night from the back of Mr. Evans’ company truck. The

date of the alleged theft was January 6, 1995. Mr. Evans later told Mr. Higdon that

his neighbor, Quentin Pewitt, had seen a man taking the unit from the pickup truck in

the middle of the night. Mr. Pewitt allegedly confronted the man, and was told that Mr.

Evans had given him permission to take the unit.



              Mr. Higdon reported the theft to the Metropolitan Nashville Police

Department, and the detective assigned to the case assembled a photo lineup that

was reviewed by Mr. Pewitt. From the line-up, he picked out a photograph of Scottie

Allen Yant, owner of Ace Exterminators, as the individual who had taken the unit from

the truck.



              Mr. Higdon was notified of this development, and he signed a theft of

property affidavit on February 2, 1995, following which the State issued a warrant for

Scottie Yant. On March 15, 1995, Mr. Yant was arrested at his place of business, in

full view of his employees. Mr. Yant, Mr. Evans and Mr. Pewitt all testified at the

probable cause hearing, which was held in general sessions court on April 17, 1995.


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              Mr. Pewitt identified Mr. Yant as the person he saw removing the Actisol

unit from Mr. Evans’ truck, and stated that he had never seen him before that night.

On cross-examination, Mr. Pewitt admitted that he had known Mr. Evans since

Christmas of 1994, and that he considered him a friend. The judge ruled that

probable cause existed, and he bound the matter over to the grand jury. The grand

jury returned a no true bill. After a second presentation, the grand jury again declined

to indict Mr. Yant.



                                          II.

                                   The Civil Action



              Mr. Yant filed the present action for malicious prosecution on July 2,

1996. The complaint recited a prior history of troubled dealings between Mr. Evans

and his employers.    Mr. Evans had worked for Ace Exterminators from August of

1993 until January of 1994, but quit after Mr. Yant allegedly warned him against using

narcotics on the job. Mr. Evans subsequently went to work for Arrow Exterminators.

He allegedly solicited the clients of Ace Exterminators in violation of a non-compete

agreement, and may have been behind a complaint of vandalism that was erroneously

leveled against Mr. Yant. Mr. Evans was terminated by Mr. Higdon for filing false

reports with Arrow Exterminators, after the disappearance of the Actisol unit but

before the preliminary hearing.



              Mr. Yant’s theory was that in view of Mr. Evans’ dishonesty, and his

known antagonism to Mr. Yant, it was unreasonable for Mr. Higdon to pursue criminal

charges that were based so heavily on input by Mr. Evans, without further

investigation. Mr. Yant also implied that Mr. Pewitt’s testimony was inherently

untrustworthy, because of his friendship with Mr. Evans. The defendant answered the

complaint on August 23, 1996, and filed a Motion for Summary Judgment on August




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29, 1996. After a hearing, the trial court granted the defendant’s motion. This appeal

followed.



                                          III.

                     The Elements of Malicious Prosecution



              The elements required to establish a claim for malicious prosecution are

(1) a prior suit or judicial proceeding instituted without probable cause, (2) that such

prior action was brought with malice, and (3) the termination of the prior action in the

plaintiff’s favor. Lewis v. Williams, 618 S.W.2d 299 (Tenn. 1981). Logan v. Kuhn’s

Big K Corp., 676 S.W.2d 948 (Tenn. 1984).



              Relying on the Logan case, the appellant argues that to demonstrate

probable cause, the defendant must prove both that the prosecutor held a good faith

and honest belief that the accused was guilty of the crime as charged, and that the

belief was reasonable. However, as the appellee correctly points out, our Supreme

Court has recently overruled this proposition in Roberts v. Federal Express

Corporation, 842 S.W.2d 246 (1992).



              In Roberts, the Court refined its analysis of the elements of a malicious

prosecution claim by ruling that the motivations or mental state of the prosecutor are

only relevant to the element of malice, and that the question of probable cause must

be based upon an objective standard. “Properly defined, probable cause requires

only the existence of such facts and circumstances sufficient to excite in a reasonable

mind the belief that the accused is guilty of the crime.” 842 S.W.2d at 248.



              Thus, without a finding that the facts and circumstances of this case

would been insufficient to establish probable cause in reasonable minds, the possible

motivations of Mr. Higdon are not relevant, for they do not create a question of


                                         -4-
material fact such as would defeat the Motion for Summary Judgment. See Byrd v.

Hall, 847 S.W.2d 208 (Tenn. 1993).



              It is undisputed that Mr. Evans reported to the police that an

exterminating unit had disappeared from the back of his truck. It is also undisputed

that a witness testified to having seen and spoken to the man who removed the unit,

and that he identified that person as Mr. Yant, both in a photo line-up conducted by

a police detective and in the courtroom. On the basis of this evidence, the trial court

found that probable cause existed to bind the matter over to the grand jury.



              We agree with the appellant that a finding of probable cause in the

general sessions court does not, in and of itself, preclude a finding of lack of probable

cause in a subsequent civil action for malicious prosecution. See for example, Perry

v. Sharber, 803 S.W.2d 223 (Tenn. App. 1990). However, when testimony which, if

unrefuted, would be sufficient to establish probable cause, is tested by cross-

examination in a court of law, then a trial court dealing with a malicious prosecution

claim is entitled to find that probable cause has been established, and that the

defendant is entitled to judgment as a matter of law.




                                           IV.



              The judgment of the trial court is affirmed. Remand this cause to the

Circuit Court of Davidson County for further proceedings consistent with this opinion.

Tax the costs on appeal to the appellant.




                                           _________________________________
                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.

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CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
HENRY F. TODD, JUDGE




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