                                                                                        05/31/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               March 27, 2018 Session

                   RAY BROWN v. ROBERT L. BUSHNELL

                 Appeal from the Circuit Court for Bedford County
                      No. 12490 Franklin L. Russell, Judge
                     ___________________________________

                           No. M2017-01124-COA-R3-CV
                       ___________________________________


This is a malicious prosecution case. The trial court found that the Appellant committed
the torts of malicious prosecution and abuse of process. Appellant argues that there was
no material evidence to support the trial court’s inference of malice. Appellant also
questions the trial court’s failure to address the mandatory element of probable cause.
Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

W. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Robert L. Bushnell.

Roger Clay Parker, Shelbyville, Tennessee, for the appellee, Ray Brown.


                                       OPINION

                                  I.     Background

        Following dismissal of a federal lawsuit, in which he was a defendant, Appellee
Ray Brown filed this malicious prosecution case against Appellant Robert L. Bushnell in
the Circuit Court for Bedford County (the “trial court”). The underlying lawsuit was
filed in the United States District Court for the Eastern District of Tennessee (“district
court”) by Mr. Bushnell against Appellee, individually, and d/b/a Ray’s Paint and Body
Shop, and multiple governmental entities that are not parties to this appeal. Messrs.
Bushnell and Brown operate competing wrecker services. In his district court complaint,
Mr. Bushnell alleged that Appellee violated RICO statutes, state tort law, the Sherman
Antitrust Act, and the Freedom of Information Act by failing to follow certain ordinances
governing the rotation of wrecker services in Shelbyville and Bedford County. The
district court granted summary judgment in favor of Mr. Brown. Mr. Bushnell dismissed
all of the other defendants in the litigation, but pursued an appeal of the order granting
Brown’s motion for summary judgment in the Sixth Circuit Court of Appeals, which
upheld the district court’s grant of summary judgment. Mr. Bushnell then appealed the
case to the United States Supreme Court, which denied certiorari.

       Following the dismissal of the federal lawsuit, on July 20, 2012, Mr. Brown filed
the instant case in the trial court. In his complaint, Mr. Brown alleged that Mr. Bushnell
had engaged in malicious prosecution and abuse of process in filing the federal lawsuit.
On August 23, 2012, Mr. Bushnell answered the complaint denying the material
allegations. On May 2, 2017, following a trial, the trial court entered an order, sustaining
Mr. Brown’s claim that Mr. Bushnell committed the torts of malicious prosecution and
abuse of process, and awarding Mr. Brown $47,600.00 in damages. The trial court found
in relevant part, that:

       Bushnell committed the torts of malicious prosecution and abuse of process
       against Plaintiff Brown. The new owner of a new wrecker/auto repair
       company in a small town was dragged into federal trial court, to the Sixth
       Circuit Court of Appeals, and to the front door of the US Supreme Court.
       The whole process was launched after only very limited and flawed
       investigation. The complaint contained and relied on multiple falsehoods
       that were the heart of the claims against Brown. Taken as a whole, the
       circumstantial evidence in the state court leads to only one conclusion,
       which is that Bushnell did not have probable cause to initiate and pursue his
       claim against Brown and that doing so was motivated by malice and
       specifically by a determination to put Brown out of the wrecker
       service/auto repair business in Shelbyville, Tennessee.

Mr. Bushnell appeals.

                                       II.     Issues

       Appellant raises one issue for review as stated in his brief:


       Based upon the well-established requirements in Tennessee law for a
       malicious prosecution claim, does any material evidence exist in the record,
       within the meaning of T.R.A.P. Rules 13(b) and 36, that would support the
       trial court’s decision that it may "imply" malice or improper motive upon
       the facts presented, particularly in a ruling that does not directly address the
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        second mandatory element of "absence of probable cause."1

                                    III.    Standard of Review

       This matter was heard without a jury; therefore, our standard of review is de novo
upon the record of the proceedings below with a presumption of correctness as to the trial
court’s factual determinations, unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); Cross v. City of Memphis, 20 S.W.3d 642, 645 (Tenn. 2000) (citing Tenn.
R. App. P. 13(d)). There is no presumption of correctness, however, as to the trial court’s
legal conclusions. In re Estate of Fletcher, 538 S.W.3d 444, 448 (Tenn. 2017); Mills v.
Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012) (citing Hall v. Haynes, 319 S.W.3d
564, 571 (Tenn. 2010); Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 226 (Tenn.
2010)).

                                           IV.     Analysis

       In Tennessee, there are two tort actions that may be brought to obtain redress for
alleged misuse of the legal process: malicious prosecution and abuse of process.
Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977); Priest v. Union Agency, 174
Tenn. 304, 125 S.W.2d 142, 143 (1939). A plaintiff in a malicious prosecution claim has
the burden to show that the defendant maliciously brought the prior suit without probable
cause, and that the prior suit was adjudicated in favor of the plaintiff. Roberts v. Federal
Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992); Christian v. Lapidus, 833 S.W.2d
71, 73 (Tenn. 1992). The absence of probable cause raises a rebuttable presumption of
malice. Kerney v. Aetna Cas. & Sur. Co., 648 S.W.2d 247, 252 (Tenn. Ct. App. 1982).
Malice may be inferred from the absence of probable cause, or from want of reasonable
grounds for prosecution as the circumstances appeared to the prosecutor or as they would
have appeared to a person of ordinary circumspection and diligence. Perry v. Sharber,
803 S.W.2d 223, 225 (Tenn. Ct. App. 1990); Peoples Protective Life Ins. Co. v. Neuhoff,
56 Tenn. App. 346, 407 S.W.2d 190 (1966). Ill will or personal hatred need not be
shown. Kelley v. Tomlinson, 46 S.W.3d 742, 746 (Tenn. Ct. App. 2000). Any improper
motive is sufficient to constitute malice when malicious prosecution is charged. Lawson
v. Wilkinson, 60 Tenn. App. 406, 447 S.W.2d 369 (Tenn. Ct. App. 1969). Here, it is
undisputed that Mr. Bushnell’s federal lawsuit against Mr. Brown was dismissed in favor
of Mr. Brown. However, Mr. Bushnell argues that the trial court failed to address
probable cause, which is an essential element of the malicious prosecution claim.

        1
         We note that Appellant does not raise an issue concerning the trial court’s determination that he
committed abuse of process. The appellate court may treat issues that are not raised on appeal as being
waived. See Tenn. R. App. P. 13(b); Bing v. Baptist Mem’l Hosp.-Union City, 937 S.W.2d 922, 924
(Tenn. Ct. App. 1996). Watson v. Watson, 309 S.W.3d 483, 497 (Tenn. Ct. App. 2009); In re Last Will
& Testament of Erde, No. W2017-00551-COA-R3-CV, 2017 WL 6622817, at *5 (Tenn. Ct. App. Dec.
28, 2017). Therefore, we will not address whether the trial court’s determination of abuse of process was
proper.
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Furthermore, Mr. Bushnell asserts that there was no material evidence to support the trial
court’s inference of malice or improper motive.

       The Tennessee Civil Pattern Jury Instructions (“T.P.I.”) provide insight as to what
constitutes probable cause.

       Probable cause is the existence of such facts and circumstances that would
       lead a reasonable person to believe that the accused person committed the
       [crime][act][offense].

       Probable cause is to be determined solely from an objective, disinterested,
       and impartial examination of the surrounding facts and circumstances
       existing at the time defendant made the accusation against the plaintiff.
       Facts appearing after the time the criminal proceeding is started may not be
       considered in determining whether probable cause existed.

       The question in a malicious prosecution case is whether the facts, viewed
       objectively at the time of the incident, would lead a reasonable person to
       believe that the plaintiff was guilty of the crime charged.

                                            ***

       If probable cause is not proven, then a rebuttable presumption of malice
       arises.

T.P.I.—CIVIL 8.23 Probable Cause, 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 8.23
(2017 ed.). Using these instructions as a guide, the trial court opined that

       [a] determination of the presence or absence of probable cause and the
       presence or absence of malice requires an examination of the pre-litigation
       investigation by Bushnell, the accuracy of the contents of the complaint
       filed in federal court, the evidence that Bushnell had or could have had at
       the time he responded to Brown’s federal court motion for summary
       judgment, and Bushnell’s response to his initial setbacks in pursuing the
       litigation, including his decision to dismiss the other defendants from the
       case and pursue only Brown.

Mr. Bushnell’s federal complaint alleged, in pertinent part, that

       for 35 years, the governmental agencies have engaged in an established
       pattern and custom of unlawful conduct which involved the purposeful
       routing of wrecker calls, and body repair work, through a single, local
       business know as Beeches Body Shop, previously owned by J.C. Beech,
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      now operating under the name of Ray’s Paint and Body, which is owned
      and operated by Ray Brown (a relative of Mr. Beech), who, for many years,
      managed the Beeches Body Shops towing business.

Despite these allegations, there is a lack of evidence to establish “pattern and custom of
unlawful conduct” on the part of Mr. Brown. Specifically, there is no indication that Mr.
Bushnell either examined Mr. Beech’s probate file, or interviewed Mr. Beech’s widow
about the terms of the sale of Beeches Body Shop. During the trial, Mr. Bushnell
admitted that he had done “nothing” to investigate Mr. Brown’s alleged nefarious
conduct prior to filing the federal lawsuit against him.

        Mr. Bushnell’s federal lawsuit alleged that governmental agencies conspired with
Mr. Brown over a thirty-five year period; however, at the time the litigation commenced
in 2008, Mr. Brown was only 37 years old. It is unlikely that Mr. Brown began
conspiring with local government at the age of two. It is more likely that Mr. Bushnell
failed to name the proper parties in his federal lawsuit. In fact, Mr. Bushnell could name
only one city official, with whom Mr. Brown allegedly conspired, i.e. former city
manager Ed Craig. However, the only “evidence” of that conspiracy was that Mr. Craig
knew about the problem and “didn’t fix it.” More problematic is the fact that the federal
complaint makes claims against Mr. Brown that are patently false. For example, contrary
to the allegation in the complaint, there is no credible proof that Mr. Brown ever
managed Beeches Body Shop, only that he was an employee. Furthermore, contrary to
the allegation in the complaint, there is no proof that Mr. Brown was related to Mr.
Beech.

        In ruling on the malicious prosecution claims, the trial court noted that Mr.
Bushnell dismissed the governmental entities in order to pursue his appeal in federal
court. The trial court reasoned that if, as suggested by counsel for Mr. Bushnell, the
primary motivation for filing the lawsuit was to obtain injunctive relief, he would not
have dismissed the very parties who needed to be enjoined. The trial court further
reasoned that if Mr. Bushnell’s motive was to obtain and collect a large money judgment,
then he would not have dismissed the governmental entities (which arguably had the
deepest pockets) in favor of pursuing his claims against Mr. Brown. The trial court noted
that the only motive that would explain Mr. Bushnell’s disparate treatment of the various
defendants is that Mr. Bushnell’s real objective was to force his competitor, Mr. Brown,
out of business.

       Probable cause is the “objective determination of the reasonableness of the
conduct in light of the surrounding facts and circumstances.” In re Prince, 414 B.R. 285,
293 (Bankr. M.D. Tenn. 2009) (citing Roberts v. Fed. Express Corp., 842 S.W.2d 246
(Tenn. 1992)). As discussed above, the trial court made extensive findings to support its
finding that Mr. Bushnell brought the federal lawsuit without probable cause, and to
support its conclusion that Mr. Bushnell’s actions constituted malicious prosecution. We
                                            -5-
agree with the findings and conclusions made by the trial court that such actions
constituted malicious prosecution.

                                   V.     Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment. The case is
remanded to the trial court for further proceedings as may be necessary and are consistent
with this Opinion. Costs on the appeal are assessed against the Appellant, Robert L.
Bushnell and his surety, for all of which execution may issue if necessary.



                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




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