                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Assigned on Briefs February 26, 2004



                   PHIL MITCHELL v. JOHN VAN ZYLL, ET AL.

                       Appeal from the Circuit Court for Roane County
                        No. 12741    Russell E. Simmons, Jr., Judge

                                     FILED MARCH 31, 2004

                                   No. E2003-01594-COA-R3-CV



Phil Mitchell (“Plaintiff”) sued his next-door neighbors, John Van Zyll (“Van Zyll”) and Ann
Furlong (“Furlong”), for malicious prosecution. Plaintiff alleged that Van Zyll and Furlong “caused
to be issued against [him] a criminal warrant for his arrest, alleging aggravated assault and reckless
endangerment.” The criminal charges against Plaintiff were dismissed. Defendants filed a motion
for summary judgment, which the Trial Court granted as to Furlong but denied as to Van Zyll.
Plaintiff appeals the Court’s ruling in favor of Furlong. We affirm.



                   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 HERSCHEL P. FRANKS, and
CHARLES D. SUSANO , JR, JJ., joined.


Phil Mitchell, pro se Appellant.

Lisa A. Temple, Knoxville, Tennessee, for the Appellee Ann Furlong.
                                             OPINION

                                            Background

                The events that initiated this lawsuit began on January 16, 2002, when Plaintiff fired
a gun out a window in his house, apparently in an attempt to quiet some dogs which were in a pen
on Defendants’ property. These neighbors apparently have a troubled history. Plaintiff’s affidavit
alleges that the following occurred after he discharged the gun:

                       John Van Zyll entered my property without permission. Said
               John Van Zyll was acting in an irrational and hostile manner by both
               his actions and his voice.

                       [W]hile holding a handgun by my side, I asked John Van Zyll
               to leave my property on numerous occasions, but he refused to leave.
               By his words and actions, John Van Zyll caused me to reasonably fear
               for my safety.

                       That only after I threatened to call the police did John Van
               Zyll leave my property. . .[A]t no time did I point a gun in the
               direction of John Van Zyll.

                     That I have never fired a gun in the direction of the home of
               John Van Zyll.

                                       *               *              *

                      That the facts alleged by the said John Van Zyll in a criminal
               warrant which was taken against me are false.

                       That at the time the events giving rise to this complaint were
               occurring, the Defendant Ann Furlong was nearby. . .Furlong knew
               that the facts alleged against me by John Van Zyll were false. The
               said Ann Furlong called the Roane County 911 Emergency dispatch
               and falsely reported that I pointed a gun at John Van Zyll. . .That the
               said Ann Furlong appeared in Court with John Van Zyll as a potential
               witness ready and willing to testify.

                        That the said Ann Furlong had every opportunity to speak
               with the Roane County District Attorney’s Office with respect to the
               false allegations being made in the criminal warrant by said John Van
               Zyll.



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              It is undisputed that Furlong called 911 to report the incident. The record contains
a “Roane County E-911 incident listing” which documents the “dispatcher comments” as follows:
“Fired a gun out the window, pointed a gun at John Van Zyll. Neighbor is Phil Mitchell.”
According to Plaintiff’s brief, the police went to Defendants’ house, “but never came to my house.”

               Van Zyll testified by affidavit the following as regards his initiation of criminal
charges against Plaintiff:

                           That in January, 2002, I traveled to the Roane County District
                  Attorney General’s office in Kingston, Tennessee. While acting out
                  of fear for my safety and the safety of others, I asked the advice of an
                  attorney in the Roane County District Attorney General’s office
                  before starting or causing to be issued against the Plaintiff, Phil
                  Mitchell, any criminal warrant, charges, or proceedings.

                                     *                 *                  *

                          That I then acted upon the advice of an attorney for the Roane
                  County District Attorney General’s office and caused criminal
                  warrants to be issued against the Plaintiff, Phil Mitchell, resulting in
                  his arrest.

                          That I caused to be issued against the Plaintiff a criminal
                  warrant for his arrest based upon the Plaintiff Phil Mitchell’s firing
                  of a gun in the direction of my home on numerous dates in January,
                  2002. . .That I further caused a criminal warrant to be issued against
                  the Plaintiff, Phil Mitchell, based upon the fact that on January 16,
                  2002, the Plaintiff, Phil Mitchell, pointed a gun in the direction of my
                  chest and stated that he would shoot me.

                Furlong’s affidavit states that “I have never started or caused someone else to start
or issue a criminal warrant, charges, or other proceedings against the Plaintiff, Phil Mitchell.” The
criminal charges against Plaintiff were dismissed. Plaintiff filed his complaint alleging malicious
prosecution on January 13, 2003. Both Defendants moved for summary judgment. After a hearing,
the Trial Court granted Furlong summary judgment and denied Van Zyll summary judgment.
Plaintiff appeals the Trial Court’s ruling in favor of Furlong.1




         1
            The Trial Court found and ruled in its order that “pursuant to rule 54.02 of the Tennessee Rules of Civil
Procedure, that the Court hereby directs the entry of this judgment as a final judgment based upon the finding that there
is no just reason for delay notwithstanding the pending claims being asserted by the Plaintiff against the Defendant John
Van Zyll.” Consequently, the Court’s judgment in favor of Furlong is final and appealable.

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                                           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
              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.




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                        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 (footnote omitted).

                  In order to prevail on a claim of malicious prosecution, a plaintiff at trial must prove
that (1) a prior suit or judicial proceeding was instituted against the plaintiff without probable cause;
(2) the defendant brought such prior action with malice; and (3) the prior action was terminated in
the plaintiff’s favor. Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-48 (Tenn.1992).

                We are of the opinion that, accepting every factual allegation in Plaintiff’s affidavit
regarding Furlong’s conduct as true, such conduct is insufficient to support a claim against Furlong
for malicious prosecution. There is no evidence in the record that Furlong did anything to institute
the prior judicial proceeding against Plaintiff, and, the evidence in fact, shows she did not do so. The
Restatement (Second) of Torts, §654 (1977) provides the following guidance on this issue:

                (1) The term “criminal proceedings” includes any proceeding in
                which a government seeks to prosecute a person for an offense and to
                impose upon him a penalty of a criminal character.

                (2) Criminal proceedings are instituted when (a) process is issued for
                the purpose of bringing the person accused of a criminal offense
                before an official or tribunal whose function is to determine whether
                he is guilty of the offense charged, or whether he shall be held for
                later determination of his guilt or innocence; or (b) without the
                issuance of process an indictment is returned or an information filed
                against him; or (c) he is lawfully arrested on a criminal charge.

                Although Furlong placed the 911 call which resulted in the initial police response,
it is undisputed that Plaintiff neither was arrested nor had a judicial proceeding instituted against
him as a result of this call. As noted above, Plaintiff’s brief states that the police never came to his
house at that time, but that they remained at Defendants’ residence while investigating. Copies of
the criminal warrants which Van Zyll admits causing to be issued against Plaintiff are not included
in the record. It is undisputed, however, that only Van Zyll’s name appears on the warrants, and not
that of Furlong. We agree with the Trial Court that the evidence, when taken in a light most


                                                   -5-
favorable to Plaintiff, can permit a reasonable person to reach only the conclusion that Furlong did
not institute or bring the criminal proceedings against Plaintiff, and thus Plaintiff’s malicious
prosecution claim against Furlong must fail as she has negated this essential element of Plaintiff’s
claim against her.

                                            Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the Appellant, Phil
Mitchell, and his surety, if any.




                                             ___________________________________________
                                             D. MICHAEL SWINEY, JUDGE




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