Kline Preston v. W. Stanford Bralock ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 8, 2015 Session
KLINE PRESTON v. W. STANFORD BLALOCK, ET AL.
Direct Appeal from the Circuit Court for Davidson County
No. 13C2459 Don R. Ash, Judge
No. M2014-01739-COA-R3-CV – Filed May 29, 2015
This is a malicious prosecution case. In the underlying case, plaintiff was sued by
defendants for abuse of process. That case was resolved on summary judgment in favor
of plaintiff. Thereafter, plaintiff filed this case for malicious prosecution. The trial court
granted summary judgment in favor of the defendants. Plaintiff appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.
Jesse Montagnino, Nashville, Tennessee, and G. Kline Preston, IV, Nashville, Tennessee,
for the appellant, Kline Preston.
Thomas V. White, Nashville, Tennessee, for the appellees, W. Stanford Blalock and
Robert L. Delaney.
MEMORANDUM OPINION1
I. BACKGROUND AND PROCEDURAL HISTORY
This malicious prosecution suit was filed after we affirmed the trial court’s grant
of summary judgment in the previous abuse of process lawsuit. Blalock v. Preston Law
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Tennessee Court of Appeals Rule 10 provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse, or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
Grp., P.C., No. M2011-00351-COA-R3-CV, 2012 WL 4503187 (Tenn. Ct. App. Sept.
28, 2012). Though we discussed the circumstances that led to the alleged abuse of
process in our earlier opinion, we recite them briefly again here.
Breach of Lease Contract Litigation
On March 3, 2005, Plastic Surgery of Nashville, P.C. (“PSN”), owned by
Defendant/Appellee Dr. W. Stanford Blalock, entered into a five year commercial lease
of an office suite in Belle Meade Office Park (“Belle Meade”). Id. at *1. Dr. Blalock
signed the lease on behalf of PSN and in his personal capacity as guarantor of PSN’s
obligations. Id. Dr. Blalock paid rent on the lease for the first month of its term but
never moved into the office suite because another opportunity arose. Id. Dr. Blalock and
Belle Meade attempted to negotiate an agreement under which Dr. Blalock would
sublease or assign the lease to another party but were unable to do so. Id. Dr. Blalock
stopped paying rent on the lease, and Belle Meade declared PSN and Dr. Blalock to be in
default on the lease. Id.
In August 2005, Belle Meade, acting through its attorney, Plaintiff/Appellant G.
Kline Preston, IV (hereinafter “Mr. Preston”) filed a complaint in General Sessions Court
of Davidson County for breach of contract and failure to pay rent against Dr. Blalock as
guarantor of the lease. Id. In October 2005, Mr. Preston filed an identical complaint in
the same court on behalf of Belle Meade naming PSN as the defendant. Id. at *2. Both
complaints sought awards of unpaid rent, build out costs, and attorney’s fees, which the
lease provided would be recoverable by the prevailing party. Id. at *1-2. The court
entered default judgments in favor of Belle Meade in each of the cases for $39,767 and
$36,663 respectively, though it clarified that Belle Meade was only entitled to collect one
of the judgments against Dr. Blalock and PSN. Id. at *1-2.
Following entry of the default judgments, Dr. Blalock and PSN retained an
attorney, Robert L. DeLaney (hereinafter “Mr. DeLaney”), to represent them in the
proceedings. PSN timely perfected an appeal of the judgment against it to the Davidson
County Circuit Court. Id. at *2. On December 8, 2005, Mr. Preston filed a “first
amended complaint” for breach of contract against both PSN and Dr. Blalock on behalf
of Belle Meade in the circuit court. Id. The complaint also included a claim against Dr.
Blalock for fraudulent conveyance and asked the court to pierce the corporate veil of
PSN. Id.
On June 2, 2006, Dr. Blalock paid $42,048 to satisfy the general sessions
judgment, which included attorney’s fees and post-judgment interest. Id. Shortly
thereafter, Mr. Preston filed a document titled “partial satisfaction of judgment” and a
third complaint in the general sessions court for breach of contract seeking $14,999 in
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additional attorney’s fees. Id. On July 17, 2006, the general sessions court held that Dr.
Blalock had fully satisfied the judgment against him. Id.
On October 13, 2006, Belle Meade filed a voluntary notice of dismissal without
prejudice of its circuit court complaint. Id. Four days later, however, Belle Meade filed
another circuit court complaint against both PSN and Dr. Blalock asserting the same
breach of contract claim but including a claim for additional rents that had come due
since the general sessions judgment, as well as a claim for attorney’s fees. Id. Dr.
Blalock argued that no additional rent was due because Belle Meade failed to mitigate its
damages by renting out the suite to another tenant. Id.
Abuse of Process Lawsuit
On January 20, 2009, while Belle Meade’s second circuit court complaint against
PSN and Dr. Blalock was still pending, Dr. Blalock filed a complaint against Mr. Preston
for abuse of process in Davidson County Circuit Court. Id. Dr. Blalock asserted that
throughout his dealings with Mr. Preston, Mr. Preston had engaged in acts that amounted
to “an unlawful pattern of conduct constituting abuse of process.” Id. These acts
included filing a claim against Dr. Blalock as the guarantor before filing a claim against
PSN as the principal, filing of a “partial satisfaction of judgment: when the judgment was
fully satisfied, giving false and misleading testimony at depositions, and filing a
multiplicity of claims in order to drive up the amount of attorney’s fees.” Id. Dr. Blalock
asked the court for awards of compensatory and punitive damages. Id.
Preston filed a motion to dismiss the complaint based on failure to state a claim
and expiration of the statute of limitations. Id. at *3. Following a hearing, the circuit
court entered a final order granting summary judgment to Mr. Preston on February 2,
2011. Id. The court ruled that the allegations against Mr. Preston “did not rise to the level
of stating a cause of action for abuse of process.” Id. The court further held that “to the
extent the record might establish an abuse of process, Dr. Blalock’s claim for abuse of
process is barred by the one year statute of limitations.” Id. Dr. Blalock appealed, and
this Court affirmed. See id. at *8.
Malicious Prosecution Lawsuit
On February 2, 2012, Mr. Preston filed a complaint against Dr. Blalock and Mr.
DeLaney (referred to collectively as “the defendants”) for malicious prosecution in
Davidson County Circuit Court. On June 20, 2012, Mr. Preston voluntarily dismissed the
case, and the circuit court entered an order of dismissal.
On June 17, 2013, Mr. Preston essentially re-filed the same malicious prosecution
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complaint against the defendants in Davidson County Circuit Court. The complaint
alleged that the defendants filed the abuse of process suit against Mr. Preston for an
improper purpose and without probable cause in an attempt to gain an advantage in the
pending breach of lease litigation against PSN and Dr. Blalock. The complaint further
alleged that the frivolous lawsuit caused Mr. Preston lost time from work, anguish,
anxiety, and embarrassment. It stated that Mr. Preston sought compensatory damages in
excess of $100,000, punitive damages in excess of $100,000, and any further relief to
which he was entitled. This June 17, 2013 lawsuit is the subject of this appeal.
On October 11, 2013, the defendants filed a motion for summary judgment and
memorandum of law urging the court to dismiss the complaint because Mr. Preston
intentionally delayed service on the defendants. The defendants argued that because Mr.
Preston intentionally delayed service of process, his June 17, 2013 filing was ineffective
to stop the one-year limitation on re-filing after a nonsuit or dismissal without prejudice.
Mr. Preston filed a response along with a sworn statement that he did not intentionally
withhold service of process. Prior to a scheduled hearing on the motion, the defendants
filed a notice to strike their motion for summary judgment.
On June 6, 2014, the defendants filed a second motion for summary judgment and
memorandum of law. In addition to renewing their argument that Mr. Preston’s
complaint was filed outside the applicable limitations period, the defendants argued that
undisputed facts established that their abuse of process lawsuit was brought with probable
cause. They asserted that Dr. Blalock acted pursuant to the advice of his attorney, Mr.
DeLaney, in filing the abuse of process lawsuit and that Mr. DeLaney had a reasonable
basis for bringing the litigation. In support of their motion, the defendants also filed a
statement of undisputed facts and affidavits of Dr. Blalock, Mr. DeLaney, and Mark E.
Morrison, an attorney with whom Mr. DeLaney claimed he had discussed the merits of
the case prior to filing.
On August 4, 2014 the court entered a final order in which it concluded that the
undisputed evidence established that the defendants acted with probable cause in
initiating the underlying abuse of process lawsuit. As to Dr. Blalock, the court ruled that
the undisputed facts established that “Blalock relied upon [the] advice of his attorney as
he first, in good faith, consulted with Mr. DeLaney to determine whether there was merit
for an abuse of process action against Plaintiff before filing the lawsuit.” As to Mr.
DeLaney, the court ruled that the undisputed facts established that “DeLaney prosecuted
on behalf of Blalock in good faith as he consulted various documents and attorneys
before bringing the abuse of process action against the plaintiff, making a reasonable
inquiry into the factual and legal basis of the lawsuit.” Accordingly, the trial court
granted the defendants’ motion for summary judgment. Mr. Preston timely filed a notice
of appeal.
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II. ISSUES PRESENTED
Mr. Preston raises the following issues on appeal, as they are stated in his brief:
1. Whether the trial court erred in granting summary judgment to W.
Stanford Blalock based on the advice of counsel defense in the
absence of evidence of the material facts disclosed, known, and upon
which his counsel relied.
2. Whether the trial court erred in granting summary judgment to
Robert DeLaney by finding that reasonable minds could not differ as
to whether probable cause existed to bring an action for abuse of
process against Mr. Preston without sufficient facts.
3. Whether the trial court erred by not finding that W. Stanford Blalock
had waived the affirmative defense of advice of counsel.
III. STANDARD OF REVIEW
This is an appeal from a grant of summary judgment. A trial court’s resolution of
a motion for summary judgment presents a question of law, and we review it de novo on
appeal with no presumption that the trial court’s decision is correct. Wells ex rel. Baker
v. State, 435 S.W.3d 734 (Tenn. Ct. App. 2013). Courts are guided in their evaluation of
motions for summary judgment by Rule 56 of the Tennessee Rules of Civil Procedure.
On appeal, we must make a fresh determination that all of the requirements of Rule 56
have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98,
103 (Tenn.2010).
Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We must view the evidence in the
light most favorable to the non-moving party and allow all reasonable inferences in that
party’s favor. Stanfill v. Mountain, 301 S.W.3d 179, 184 (Tenn. 2009). A grant of
summary judgment is appropriate when the facts and the reasonable inferences from
those facts would permit a reasonable person to reach only one conclusion. Id. Because
this case was filed after July 1, 2011, the summary judgment standard set forth in
Tennessee Code Annotated section 20-16-101 applies. The statute provides:
In motions for summary judgment in any civil action in Tennessee,
the moving party who does not bear the burden of proof at trial shall prevail
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on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of
the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s
claim.
Tenn. Code Ann. § 20-16-101 (Supp. 2014).
IV. ANALYSIS
To establish the essential elements of malicious prosecution, the plaintiff must
prove three elements: (1) that a prior lawsuit or judicial proceeding was instituted
without probable cause, (2) that defendant brought such prior action with malice, and (3)
that the prior action was finally terminated in plaintiff’s favor. Roberts v. Fed. Exp.
Corp., 842 S.W.2d 246, 247-48 (Tenn. 1992). Mr. Preston has met the third element in
this case because the prior action, Dr. Blalock’s abuse of process lawsuit against Mr.
Preston, was resolved on summary judgment in Mr. Preston’s favor and affirmed by this
Court. See Blalock v. Preston Law Grp., P.C., No. M2011-00351-COA-R3-CV, 2012
WL 4503187 (Tenn. Ct. App. Sept. 28, 2012). Accordingly, the issues before us are
primarily concerned with probable cause and malice.
The claimant in a malicious prosecution case bears a heavy burden of proof in
establishing the elements of malice and lack of probable cause. Wright Med. Tech., Inc.
v. Grisoni, 135 S.W.3d 561, 581 (Tenn. Ct. App. 2001) (citing Kauffman v. A.H. Robins
Co., 448 S.W.2d 400, 404 (Tenn. 1969)). Probable cause exists where the party that
instituted the underlying proceedings had a reasonable belief in the existence of facts
supporting his or her claim and a reasonable belief that those facts made out a legally
valid claim. Id. The reasonableness of the party’s belief is an objective determination
made in light of the facts and circumstances at the time the underlying proceedings were
initiated. Roberts, 842 S.W.2d at 248. Like reasonableness in the context of negligence,
reasonableness of a party’s belief in a malicious prosecution claim is a question of fact
generally reserved for a jury. Id. at 248-49. However, where there are no disputed issues
of material fact, the element of probable cause may also be resolved through summary
judgment. See Sullivan v. Young, 678 S.W.2d 906, 912 (Tenn. Ct. App. 1984) (“When
the facts are not in dispute, the issue of probable cause is exclusively for the court.”). As
to malice, the claimant is not required to establish ill will or personal hatred, so long as he
or she demonstrates an improper motive. Wright, 135 S.W.3d at 582. While malice may
be inferred from a total absence of probable cause, no amount of malice is sufficient to
raise a presumption of lack of probable cause. Sullivan, 678 S.W.2d at 911.
Consequently, if the defendant can establish that the underlying proceedings were
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initiated with probable cause, whether or not the defendant acted with malice is
irrelevant. See Peoples Protective Life Ins. Co. v. Neuhoff, 407 S.W.2d 190, 199 (Tenn.
Ct. App. 1966) (citations omitted) (“[I]f there is reasonable cause to prosecute, the state
of mind is immaterial.”).
Here, the trial court ruled that the undisputed facts established that Dr. Blalock had
probable cause to initiate the underlying proceedings by establishing that he relied on the
advice of his attorney, Mr. DeLaney. The defendant in a malicious prosecution lawsuit
may establish the existence of probable cause by demonstrating that he or she relied on
the advice of counsel in initiating the underlying proceedings. Sullivan, 678 S.W.2d at
911; see also Cooper v. Flemming, 84 S.W. 801, 802 (Tenn. 1904) (stating that the
purpose of the advice of counsel defense is to “establish the existence of probable
cause”). To establish probable cause through reliance on the advice of counsel, the
defendant must prove three elements: (1) that the attorney’s advice was sought in good
faith, (2) that the defendant disclosed all material facts relating to the case in his
possession and all facts that could have been ascertained by reasonable diligence, and (3)
that the case was commenced pursuant to the attorney’s advice. Abernethy v. Brandt, 120
S.W.3d 310, 314 (Tenn. Ct. App. 2002) (citing Cooper, 84 S.W. at 802). If the elements
of advice of counsel have been established, the fact that the attorney’s advice was
unsound or erroneous is immaterial and does not defeat the defense. 26 Am. Jur. 2d
Proof of Facts 275 (Originally published in 1981). Mr. Preston contends that the trial
court erred in granting summary judgment as to Dr. Blalock because the defendants failed
to establish that Dr. Blalock made a full and honest disclosure of the material facts
relating to the abuse of process case.
The requirement that the party who initiated the underlying case disclose all of the
material facts relating to the underlying case to his or her attorney ensures that the party’s
reliance on the attorney’s advice is reasonable. It prevents a party initiating the
underlying proceedings from subsequently avoiding liability for malicious prosecution by
asserting reliance on advice they knew or should have known was unreliable. In this
case, the underlying proceeding was an abuse of process lawsuit filed by Dr. Blalock
against Mr. Preston. The abuse of process claim was based on Mr. Preston’s actions in
the original breach of lease contract litigation between the parties. Because Mr. DeLaney
represented Dr. Blalock in the original breach of lease contract litigation, he was already
aware of the material facts relating to the abuse of process claim. Dr. Blalock is not
required to prove he restated the material facts when Mr. DeLaney was already aware of
them. See 26 Am. Jur. 2d Proof of Facts 275 (“If the attorney consulted was already
aware of the material facts, the defendant need not restate them at the time the advice is
sought.”). Moreover, Mr. Preston does not allege, nor are we able to ascertain from the
record, the existence of any material facts that would have affected Mr. DeLaney’s
advice had he been made aware of them at an earlier time. We therefore conclude that
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Mr. Preston’s argument on this matter is without merit.
The undisputed evidence establishes that Dr. Blalock sought Mr. DeLaney’s
advice prior to filing the abuse of process claim and relied on his advice in filing the
claim. Paragraph 11 of the defendants’ statement of undisputed facts provides:
Before bringing the abuse of process claim against Mr. Preston, Dr. Blalock
worked with his attorney, Robert DeLaney, to gather all materials requested
by Mr. DeLaney. Dr. Blalock and Mr. DeLaney reviewed together the
matters contained in paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, and
34 of Robert DeLaney’s affidavit before bringing this claim.
The referenced paragraphs of Mr. DeLaney’s affidavit outline his efforts to research the
validity of the claim by reviewing relevant case law and secondary sources and by
consulting other attorneys. In his response, Mr. Preston conceded that the facts contained
in Paragraph 11 were undisputed. Paragraph 12 of the defendants’ statement of
undisputed facts provides:
After Mr. DeLaney advised Dr. Blalock of what he learned through
research and discussion with other lawyers, Dr. Blalock directed Mr.
DeLaney to file a counterclaim against the BOP business entity and two (2)
of its individual partners and an independent action against Mr. Preston.
Mr. Preston also conceded that the facts contained in Paragraph 12 were undisputed.
Moreover, Dr. Blalock stated in his affidavit that he sought Mr. DeLaney’s advice in
good faith and that Mr. DeLaney advised him that there was a good faith basis for the
claim. There is no evidence in the record to contradict either of those statements. The
undisputed evidence demonstrates that Dr. Blalock relied on Mr. DeLaney’s advice in
initiating his abuse of process lawsuit against Mr. Preston and, therefore, acted with
probable cause in doing so.
Next, Mr. Preston contends that Dr. Blalock waived the defense of advice of
counsel. Specifically, Mr. Preston argues that advice of counsel is an affirmative defense
and that Rule 8.03 of the Tennessee Rules of Civil Procedure provides that affirmative
defenses not specifically pleaded in a party’s answer are waived. Without addressing the
issue of whether the defense of advice of counsel constitutes an affirmative defense that
must be specifically pled,2 we reject Mr. Preston’s argument. Rule 8.03 requires that a
2
In his brief, Mr. Preston does not cite any authority in his brief to support his assertion that advice of
counsel is an affirmative defense that must be specifically pled. Courts addressing the question in other
jurisdictions have not reached a consensus on the issue. See 52 Am. Jur. 2d Malicious Prosecution § 99
(“Acting on the advice of counsel is sometimes treated as an affirmative defense to a claim for malicious
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party seeking to raise an affirmative defense assert it “as an affirmative defense in the
answer or other pleadings before trial.” Pratcher v. Methodist Healthcare Memphis
Hosps., 407 S.W.3d 727, 736 (Tenn. 2013). A party’s failure to specifically plead an
affirmative defense generally results in a waiver of the defense; however that is not
always the case. See George v. Bldg. Materials Corp. of America, 44 S.W.3d 481, 486-
87 (Tenn. 2001). The specific pleading requirements of Rule 8.03 are intended to prevent
a trial by ambush. Id. at 487. If the opposing party is given fair notice of the defense and
an opportunity to rebut it, a failure to specifically plead the defense will not result in a
waiver. Id. Indeed, it is within the trial court’s discretion to allow a party to assert an
affirmative defense even after the trial has begun. Id. Here, Mr. Preston filed a
complaint for malicious prosecution on June 17, 2013. The defendants raised the defense
of advice of counsel in their second motion for summary judgment filed on June 6, 2014.
Though there was a delay prior to the defendants’ assertion of the defense, there is no
allegation that Mr. Preston was prejudiced by the delay in any way. We therefore hold
that the trial court acted within its discretion in considering Dr. Blalock’s reliance on the
advice of counsel.
The trial court also ruled that the undisputed facts established that Mr. DeLaney
prosecuted the underlying lawsuit in good faith, as he made a reasonable inquiry into the
factual and legal basis for the lawsuit prior to its filing. Mr. Preston contends that a
reasonable juror could find that Mr. DeLaney lacked probable cause to file the claim
because the claim was dismissed as barred by the statute of limitations and for failure to
state a claim. An attorney is generally not liable in an action for malicious prosecution
where he or she initiated the underlying legal proceedings on behalf of a client in good
faith. Evans v. Perkey, 647 S.W.2d 636, 642 (Tenn. Ct. App. 1982). Tennessee courts
recognize, however, that an attorney who knowingly prosecutes a groundless action to
accomplish some evil purpose of his or her client may be equally liable with the client for
malicious prosecution. Black v. Stulberg, No. 1393, 1991 WL 83334, at *3 (Tenn. Ct.
App. May 22, 1991); Evans, 647 S.W.2d at 649; see also Hill v. White, 190 F.3d 427, 432
(6th Cir. 1999) (“For a malicious prosecution action against an attorney to be successful,
it is usually necessary to allege that the defendant did something more than simply file a
lawsuit.”). Regardless of whether the defendants were likely to be successful in the
underlying abuse of process proceeding against Mr. Preston, the undisputed facts
establish that the lawsuit cannot be characterized as groundless or without probable
cause.
There is no allegation that Mr. DeLaney filed the action without making a
reasonable inquiry into the factual and legal basis of the abuse of process lawsuit. Mr.
DeLaney was familiar with the factual circumstances surrounding the claims, as he had
prosecution, and sometimes as simply negating either the lack of probable cause or malice.” (footnotes
omitted)). Because the issue is not imperative to our resolution of this case, we decline to address it.
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represented Dr. Blalock in the original proceedings. The undisputed facts also
demonstrate that Mr. DeLaney researched the legal issues at length prior to the lawsuit’s
filing. Paragraph 5 of the defendants’ statement of material facts stated:
Mr. Robert L. DeLaney met with Attorney William R. Willis, Jr. in person
and reviewed with him the information contained in the Affidavit of Robert
L. Delaney in paragraphs 27, 28, 29, and 30.
The referenced paragraphs of Mr. DeLaney’s affidavit outline his efforts to consult other
attorneys regarding the validity of the abuse of process claim and indicate that Mr. Willis
agreed with Mr. DeLaney that he could assert a valid claim for abuse of process against
Mr. Preston. In his response, Mr. Preston stated that the facts contained in Paragraph 5
were undisputed. Additionally, the defendants submitted the affidavit of Mark Morrison,
a licensed attorney who had worked with Mr. DeLaney on cases in the past. Mr.
Morrison stated in his affidavit that he discussed the claim with Mr. DeLaney while Mr.
DeLaney was conducting his research. Mr. Morrison further stated that prior to initiation
of the abuse of process lawsuit, he advised Mr. DeLaney that he could assert the claim in
good faith and, in fact, might have an ethical obligation to do so.
While the defendants’ likelihood of success at trial against Mr. Preston may have
been slim, Mr. DeLaney’s actions clearly do not rise to the level contemplated by a
malicious prosecution action. The undisputed facts establish that Mr. DeLaney
researched the validity of Dr. Blalock’s abuse of process claim against Mr. Preston by
reviewing cases and secondary sources and discussing the claim with other attorneys.
Mr. DeLaney stated in his affidavit that he believed there was a good faith basis for the
lawsuit after conducting the research, and there is no evidence in the record to indicate
otherwise. Mr. DeLaney reviewed his research and discussions with Dr. Blalock, and Dr.
Blalock directed him to initiate the proceedings. After reviewing the record, we conclude
that the trial court appropriately granted summary judgment as to Mr. DeLaney because
there is no evidence in the record to indicate that he lacked probable cause in initiating
the underlying action.
V. CONCLUSION
The judgment of the trial court granting summary judgment in favor of the
defendants is affirmed. The costs of this appeal are taxed to the appellant, Kline Preston,
and his surety, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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