Larry Parrish v. Robert Marquis ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 30, 2002 Session
LARRY E. PARRISH, ET AL. v. ROBERT S. MARQUIS, ET AL.
Appeal from the Circuit Court for Knox County
No. 1-701-01 Dale C. Workman, Judge
FILED JUNE 8, 2004
No. E2004-00875-COA-RM-CV
In this malicious prosecution case the Appellants, Larry E. Parrish and Larry E. Parrish, P.C.,
contend that the Knox County Circuit Court erred in granting motions for summary judgment filed
by the Appellees, Robert S. Marquis and Ronald C. Koksal. We reverse the Circuit Court’s
judgment of dismissal as to Mr. Koksal and we affirm the Circuit Court’s judgment of dismissal as
to Mr. Marquis on alternative grounds.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part,
Reversed in Part and Remanded
HERSCHEL P. FRANKS, J., delivered the opinion of the court, in which Gary R. Wade, Sp. J., joined.
HOUSTON M. GODDARD , P.J., did not participate.
John J. Mulrooney, Memphis, Tennessee, for the Appellants, Larry E. Parrish and Larry E. Parrish,
P.C.
Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for the Appellee, Ronald C.
Koksal.
Frank Q. Vettori, Knoxville, Tennessee, for the Appellee, Robert S. Marquis.
OPINION
In 1973 Lillie Mae Cain formed the Cain Partnership, Ltd. (hereinafter “the Partnership”).
Ms. Cain’s three daughters (hereinafter “the Cain sisters”), Jennie B. Cain Corum Miller (hereinafter
“Ms. Miller”), Mary Hellen Cain Harkins, and Geneva Cain Anderson, participated as the limited
partners. Project Development Corporation, an entity wholly owned by Oliver Smith, was named
the general partner.
Upon formation of the Partnership, Ms. Cain executed a long term master lease pursuant to
which she leased commercial real property, owned by her, to the Partnership at below market rates.
The Partnership functioned to sub-lease this property to others for profit. Upon the death of Ms.
Cain in 1973 the subject real property and the master lease became the corpus of a trust (hereinafter
the “Trust”) of which the Cain sisters were the primary beneficiaries.
After Ms. Cain’s death the Cain sisters determined that Oliver Smith was not handling
Partnership business to their satisfaction and, in 1982, they retained the Appellants, attorney Larry
E. Parrish and Larry E. Parrish, P.C. (hereinafter referred to collectively as “Mr. Parrish”), to
represent them in their capacity as limited partners of the Partnership and to assist them in
terminating Oliver Smith’s involvement with the Partnership.
In March of 1989, Mr. Parrish negotiated a settlement which ended Oliver Smith’s
involvement with the Partnership and, at the request of the Cain sisters, Mr. Parrish agreed to serve
as counsel for, and president of, a new general partner of the Partnership designated General Partner
of Cain, Inc. Additionally, in accordance with a plan formulated to increase revenue to the
Partnership, the Cain sisters instructed Mr. Parrish to begin legal proceedings against tenants who
had breached their leases with the Partnership.
By the latter part of 1990 the Partnership’s resources were exceeded by the cost of funding
the litigation being pursued by Mr. Parrish against defaulting tenants and, in August of that year, the
Partnership and the Trust agreed that the master lease would be surrendered to the Trust no later than
April of 1993, at which time the Partnership would effectively cease to exist.
Appellee Robert S. Marquis, who was employed by Ms. Miller as her personal attorney at
all times pertinent hereto, attests that in the spring of 1993 “it became my opinion that Parrish had
breached his fiduciary duty and had negligently handled litigation on behalf of Mrs. Miller.” Mr.
Marquis further attests that he advised Ms. Miller “that she had a potential cause of action, either
individually or as a limited partner”, and that he encouraged her to contact the Appellee, attorney
Ronald C. Koksal, for advice in that regard. Ms. Miller then conferred with Mr. Koksal and retained
him to represent her with regard to claims she might have against Mr. Parrish.
On July 6, 1993, Mr. Koksal filed a complaint on behalf of Ms. Miller in the Knox County
Circuit Court. The complaint seeks damages for professional malpractice and names Mr. Parrish and
General Partner of Cain, Inc. as defendants. The complaint asserts, inter alia, that, in March of 1982,
Mr. Parrish entered into an attorney/client relationship with Ms. Miller, representing her “both in an
individual capacity and as a limited partner of The Cain Partnership, Ltd.” and that, in this capacity,
Ms. Miller “placed reliance upon Parrish as to his advice and as to the actions taken by him.” The
complaint references the previously noted litigation undertaken by Mr. Parrish with respect to
defaulting lessees and alleges that Mr. Parrish “did not advise regarding the scope, extent, and legal
issues involved but instead, he began a course of cost-consuming and inefficient litigation.” The
complaint further charges that the defendants have caused Ms. Miller “loss of substantial monies”
by reason of their breach of fiduciary duty to her, their negligent handling of legal matters, their
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violation of the an implied duty of good faith and fair dealing, and their failure “to act as reasonably
prudent persons within the meaning of the law and under the circumstances.”
On July 30, 1996, the Circuit Court entered an order and adopted memorandum opinion as
to the malpractice complaint granting motions to dismiss and/or for summary judgment filed by Mr.
Parrish and General Partner of Cain, Inc. The memorandum opinion provides as follows:
In summary the Court concludes that (1) plaintiff has standing to sue
defendants in this case only as a limited partner asserting a derivative cause of
action; (2) she has not stated a claim for which relief can be granted as a
derivative action, and (3) any action against the Parrish defendants for legal
malpractice is barred by the one year Statute of Limitations, TCA 28-3-104(a)(2).
Therefore, defendants’ Motions to Dismiss and/or for Summary Judgment
are sustained at plaintiff’s cost.
On July 15, 1997, Mr. Parrish filed a complaint in the Shelby County Circuit Court against
Mr. Marquis and Mr. Koksal and their respective law firms asserting that the malpractice suit filed
against him by Ms. Miller on July 6, 1993, constituted a malicious prosecution by reason of which
Mr. Parrish sustained compensable damages. Thereafter, motions for summary judgment filed by
Mr. Marquis and Mr. Koksal were granted by the Circuit Court and Mr. Parrish’s complaint was
dismissed. Upon appeal to our Court the judgment of the Circuit Court was affirmed, but on the
alternative ground of improper venue. See, Parrish v. Marquis, No. W1999-02629-COA-R3-CV,
2000 Tenn. App. LEXIS 509 (Tenn. Ct. App. July 31, 2000).
On November 8, 2001, Mr. Parrish re-filed the complaint for malicious prosecution in the
Knox County Circuit Court. The complaint alleges, inter alia, that Mr. Marquis and Mr. Koksal
aided and abetted each other in filing the malpractice complaint and that they filed such complaint
with malice. The complaint further alleges that Mr. Marquis and Mr. Koksal “failed to conduct a
reasonable preprosecution investigation” and “lacked probable cause to believe that [Mr. Parrish]
had engaged in legal malpractice against Ms. Miller.”
Thereafter, Mr. Marquis filed a motion for summary judgment on the grounds that (1) he did
not act without probable cause or with malice; (2) he was neither the attorney of record nor plaintiff
in the malpractice suit; (3) the malpractice suit was not terminated in favor of Mr. Parrish; and (4)
the malicious prosecution suit was not timely filed under the applicable statute of limitations. Mr.
Koksal also filed a motion for summary judgment on the grounds that there had not been a favorable
termination of the malpractice action and the malicious prosecution suit was barred by the applicable
statute of limitations.
On April 12, 2002, the Circuit Court entered its order granting Mr. Koksal’s motion for
summary judgment upon the ground that the complaint against him was not re-filed within the time
allotted under the one year saving statute set forth at Tenn. Code Ann. § 28-1-105. By separate
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order entered April 18, 2002, Mr. Marquis’s motion for summary judgment was granted on the same
ground and upon the further grounds that Mr. Marquis “did not ‘bring’ the underlying cause of action
since Attorney Ron Koksal represented the plaintiff in the underlying cause of action and any
possible wrongdoing of Marquis would be barred by the doctrine of intervening cause due to the
underlying plaintiff’s representation by said Koksal.” Both motions for summary judgment were
overruled as to all other grounds asserted. Thereafter, Mr. Parrish filed notice of his appeal of these
two orders.
As set forth in Larry E. Parrish, et al. v. Robert S. Marquis, et al., No. E2002-01131-COA-
CV, 2002 Tenn. App. LEXIS 918 (Tenn. Ct. App. December 30, 2002), appl. perm. appeal granted
July 7, 2003, we affirmed the Circuit Court’s holding that Mr. Parrish failed to re-file his suit for
malicious prosecution within the time allowed under Tenn. Code Ann. § 28-1-105. However, upon
further appeal to the Supreme Court our judgment was reversed and the case was remanded to us for
consideration of issues which we had previously pretermitted. See Parrish v. Marquis, No. E2002-
01131-SC-R11-CV, 2004 Tenn. LEXIS 250 (Tenn. March 19, 2004). Those issues, as restated, are
as follows:
1) Did the dismissal of the malpractice suit against Mr. Parrish constitute a “favorable
termination” such as is required in an action for malicious prosecution?
2) Did the complaint for malicious prosecution allege sufficient facts to support a finding that
Mr. Marquis and Mr. Koksal conspired to file the malpractice suit?
3) Did the Circuit Court err in dismissing the complaint for malicious prosecution on the
grounds that Mr. Marquis did not “bring” the malpractice suit and Mr. Koksal’s representation of
Ms. Miller in that suit relieved Mr. Marquis of liability for malicious prosecution under the doctrine
of intervening cause?
4) Should Mr. Marquis’s motion for summary judgment have been granted on the additional
grounds that Mr. Marquis acted with probable cause and without malice?
In Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000) the Tennessee Supreme
Court set forth the standard of review appropriate to summary judgments as follows:
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 [423]at 426;
Byrd v. Hall, 847 S.W.2d [208] at 210-211. 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).
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Because a trial court's decision to grant a motion for summary judgment is solely a matter
of law, it is not entitled to a presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d 23(Tenn.1995). In determining whether such a decision is correct we must review the record to
determine if the requirements of Rule 56.04 of the Tennessee Rules of Civil Procedure have been
satisfied in 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."
The first issue we address is whether the dismissal of the malpractice suit against Mr. Parrish
constitutes a “favorable termination” such as is required to support an action for malicious
prosecution.
In Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-248 (Tenn. 1992), the Supreme
Court of this state noted as follows regarding elements necessary to an action for malicious
prosecution:
In order to establish the essential elements of malicious prosecution , a
plaintiff must prove that (1) a prior suit or judicial proceeding was instituted
without probable cause, (2) defendant brought such prior action with malice, and
(3) the prior action was finally terminated in plaintiff’s favor. (Emphasis added)
(Citations omitted.)
As we have acknowledged, the Circuit Court’s memorandum opinion, adopted by order
entered July 3, 1996, dismisses the malpractice action against Mr. Parrish for two reasons - 1)
because Ms. Miller did not have standing to sue Mr. Parrish other than in her capacity as a limited
partner asserting a derivative cause of action and she did not sue in that capacity and 2) because the
malpractice action was barred by the applicable statute of limitations. The opinion also sets forth
the following findings of the Court:
If plaintiff is suing the Parrish defendants for damages for some injury
personal to her as a limited partner, then it is necessary, in the opinion of the
Court, that plaintiff show that a relationship existed between her and the Parrish
defendants such that those defendants owed her a duty which was breached to her
detriment. Presumably in this case that relationship was one of attorney and
client. However, the record shows that at all times material to this case the Parrish
defendants represented the partnership, not the plaintiff. Furthermore, the record
shows that at such times the plaintiff was represented by counsel of her own
choosing, and there is no genuine issue of material fact about the absence of an
attorney-client relationship between plaintiff and the Parrish defendants. Hence,
if plaintiff’s suit is a personal one, or opposed to a derivative action, the Parrish
defendants’ Motion for Summary Judgment is well taken on the ground that
plaintiff has failed to state a claim on which relief can be granted.
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Mr. Koksal contends that in order to qualify as a favorable termination for purposes of an
action for malicious prosecution such termination must be on the merits in favor of the defendant in
the prior suit - that it must reflect the defendant’s non-responsibility for the misconduct charged. Mr.
Marquis agrees, arguing that Tennessee case law provides “that unless there is an indication that the
underlying defendant is not liable, there is no termination in favor of the plaintiff.” Both Mr. Koksal
and Mr. Marquis maintain that, based upon the grounds set forth by the Circuit Court in support of
its dismissal of the underlying malpractice suit, such dismissal was not a favorable termination of the
type that is required to sustain a malpractice action, but instead was a dismissal based on purely
procedural grounds.
Mr. Parrish argues that any final termination in his favor which is not the result of a
compromise satisfies the “favorable termination” element necessary to a malicious prosecution suit.
In support of this argument he cites Christian v. Lapidus, 833 S.W.2d 71 (Tenn. 1992).
In Christian a complaint was filed in the district court charging the defendants in that action
with violation of the Racketeer Influenced and Corrupt Organization (RICO) statutes. The complaint
was subsequently amended and, as amended, no longer named, or contained allegations against, those
particular defendants. Thereafter, the district court dismissed such defendants from the RICO action
because the original suit against them was not prosecuted and because the amended complaint recited
that it superseded the original complaint. The defendants then filed suit for malicious prosecution.
The malicious prosecution suit, filed over one year after the amendment of the original complaint,
was dismissed by the court as time barred under T.C.A. § 28-3-104(a)(1) which requires that an action
for malicious prosecution be commenced within one year after the cause of action accrued. An action
for malicious prosecution accrues when the underlying suit is finally terminated in the original
defendant’s favor.
The Supreme Court found that the legal effect of the amendment of the complaint was to
remove the defendants from the suit and was an abandonment of the RICO action against them. The
Court held that this abandonment constituted a final and favorable termination and, therefore, the
cause of action for malicious prosecution accrued from the time of the amendment of the original
complaint. In reaching this conclusion the Court discussed the “favorable termination” element
essential to establishing an action for malicious prosecution as follows at page 74:
The “favorable” component is required because a judgment in favor of the
original plaintiff is conclusive of probable cause, unless procured by fraud. See
Sloan v. McCracken, 75 Tenn. 626, 627 (1881). However, courts’ definitions of
“favorable” differ:
The first, and most rigid [approach], requires that the action have gone
to judgment resulting in a verdict of acquittal, in the criminal context, or
no liability, in the civil context. The second permits [an action for
malicious prosecution] even if the underlying action was merely
withdrawn so long as the plaintiff can demonstrate that the withdrawal
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took place under circumstances creating an inference that the plaintiff
was innocent, in the criminal context, or not liable, in the civil context.
The third approach, while nominally adhering to the “favorable
termination” requirement, in the sense that any outcome other than a
finding of guilt or liability is favorable to the accused party, permits a
malicious prosecution or vexatious suit action whenever the underlying
proceeding was abandoned or withdrawn without consideration, that is,
withdrawn without either a plea bargain or a settlement favoring the
party originating the action.
Delaurentis v. City of New Haven, 220 Conn. 225, 250, 597 A.2d 807, 820 (1991)
(emphasis in original) (footnotes omitted).
We reject the first approach, requiring a final judgment on the merits,
because it permits a wrongdoer to escape liability for institution of a malicious
prosecution simply by having the suit dismissed prior to trial. With regard to the
second approach, requiring plaintiff to demonstrate an inference of innocence, we
agree with the DeLaurentis court that this demonstration more properly relates to
plaintiff’s burden of proving absence of probable cause. See id. at 251, 597 A.2d
at 820. Instead, we 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. Accord Restatement (Second) of Torts §§ 674
comment j, 660 (1977).
We construe the Court’s language in Christian to mean that establishment of the “favorable
termination” element in an action for malicious prosecution does not demand that the underlying suit
resulted either in a judgment on the merits in the plaintiff’s favor or in an outcome which otherwise
demonstrates the plaintiff’s non-liability. The argument of Mr. Koksal and Mr. Marquis to the effect
that the termination must reflect on the merits in a way that indicates the plaintiff’s non-liability
appears to have been rejected by the Court upon the rationale, in accordance with DeLaurentis , that
the demonstration of an inference of innocence (or non-liability) “more properly relates to plaintiff’s
burden of proving absence of probable cause.” Citing Sloan, the Court recognizes that, unless
procured by fraud, a termination in favor of the original plaintiff would establish that there was
probable cause for filing the underlying suit and, therefore, termination of the underlying suit must
be in favor of the original defendant. Given this rationale for the “favorable termination”
requirement, it is not necessary that such termination be a judgment on the merits in favor of the
original defendant nor is it necessary that the termination demonstrate an inference of the original
defendant’s innocence or non-liability. In accord with our construction of Christian, so long as the
outcome of the underlying suit constitutes a termination which was in favor of the original defendant
as opposed to the original plaintiff and “was not accompanied by a compromise or settlement, or
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accomplished in order to refile the action in another forum”, ibid at page 74, it will suffice to support
an action for malicious prosecution.
Mr. Koksal and Mr. Marquis cite three cases in support of their argument that in a malicious
prosecution suit the underlying termination must indicate the non-liability of the original defendant -
Sewell v. Par Cable, Inc., 1988 Tenn. App. LEXIS 657, (Tenn. Ct. App. Oct. 26, 1988), Spurlock
v. Pioneer Credit Co., 1991 Tenn. App. LEXIS 249 (Tenn. Ct. App. April 11, 1991), appl. perm.
appeal denied Sept. 9, 1991, and Foshee v. Southern Finance and Thrift Corp., 967 S.W.2d 817(Tenn. Ct. App. 1997). In light of our analysis of Christian, we do not deem these cases to be
controlling authority to the extent that they advocate a definition of “favorable termination” which
requires that the outcome of the underlying suit demonstrate the innocence or non-liability of the
original defendant.
It is our determination that the Circuit Court’s dismissal of the malpractice suit against Mr.
Parrish and the Parrish firm is a “favorable termination” for purposes of the present action for
malicious prosecution and argument to the contrary is without merit.
The remaining issues presented in this appeal pertain to the propriety of Mr. Marquis’s
inclusion as a defendant in the suit for malicious prosecution.
The first issue we address in this regard is raised by Mr. Marquis and queries whether the
Circuit Court erred in holding that the complaint for malicious prosecution alleges sufficient facts
to support the legal conclusion of conspiracy between Mr. Marquis and Mr. Koksal. We are
somewhat perplexed by the fact that this issue is raised by Mr. Marquis. Furthermore, our review
of the record does not show that the Circuit Court held that Mr. Parrish’s complaint alleged
insufficient facts to support the legal conclusion of conspiracy between Mr. Marquis and Mr. Koksal.
The Court’s order granting Mr. Marquis’s motion for summary judgment and dismissing the
malicious prosecution action as to him provides in pertinent part as follows:
It is further ORDERED, ADJUDGED and DECREED that the Motion for
Summary Judgment be and the same hereby is granted on the grounds that Robert
S. Marquis did not “bring” the underlying cause of action since Attorney Ron
Koksal represented the plaintiff in the underlying cause of action and any possible
wrongdoing of Marquis would be barred by the doctrine of intervening cause due
to the underlying plaintiff’s representation by said Koksal; and upon the ground
that the Court of Appeals decision in the original malicious prosecution case filed
by plaintiff Parrish against Marquis and others was entered on July 31, 2000, more
than one year before this suit was filed and therefore the one year saving statute
contained in T.C.A. § 28-1-115 had expired before the filing of this case which
occurred on November 8, 2001. The court overruled defendant Marquis’ Motion
on the other grounds contained therein.
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There is nothing in this order which we construe to be a holding that the malicious complaint
failed to allege sufficient facts to support charges of conspiracy. Although the matter of civil
conspiracy was discussed at the hearing on Mr. Marquis’s motion for summary judgment on March
28, 2002, we also find nothing in the Court’s statements at that hearing which would constitute a
holding that the malicious prosecution complaint failed to allege sufficient facts to support a
conspiracy argument. Rather, it is our determination that the Court concluded that, under the
intervening cause doctrine, Mr. Koksal’s representation of Ms. Miller protected Mr. Marquis from
suit for conspiring to engage in the malicious prosecution of Mr. Parrish. In reaching that conclusion
the Court recognized that Mr. Marquis’s motion for summary judgment was urged on three grounds -
that there was not a favorable termination of the underlying case, that the malicious prosecution
action is barred under the statute of limitations and that Mr. Marquis is protected under the
intervening cause doctrine. We note the Court’s comments with respect to the last of these as
follows:
Mr. Marquis relies upon the intervening cause or Mr. Koksal’s duty to
represent the client, review, become familiar with, before ever telling her to file
the lawsuit, and that obviates any liability he has.
The response from the plaintiff is different in that he says, Well, that may
be true, but ... In this case Mr. Marquis was the original one to say that there was
wrongdoing her, breach of fiduciary duty, and it’s over litigating. Mr. Koksal said
in the previous affidavit filed in the original Parrish v. Marquis filed in Shelby
County, that he relied upon his opinion as to breach of fiduciary duty.
Admittedly, there are situations where I think a party, a person, who may
be an attorney, who is not an attorney of record in a case, may be conspired with
or be so involved with a party who is a party of record in the case, that that
attorney can be sued for that litigation.
But I think that has nothing to do with them being an attorney. I think that
has to be a civil conspiracy situation, and for that reason, the Court would grant
this motion on that ground, that there is an intervening cause, and Mr. Marquis
cannot be sued in this case in which he was not attorney of record. (emphasis
added)
Having determined that the Circuit Court did not hold that the complaint for malicious
prosecution failed to allege sufficient facts to support the legal conclusion of conspiracy we decline
to address the issue of whether or not such a holding would have been proper.
The next issue presented for our review is whether the Circuit Court erred in dismissing the
malicious prosecution suit as to Mr. Marquis upon the grounds that Mr. Marquis did not “bring” the
underlying malpractice action and that Mr. Koksal’s representation of Ms. Miller in the malpractice
action protects Mr. Marquis from liability under the doctrine of intervening cause.
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Mr. Marquis asserts that the Circuit Court’s holding is proper because he did not “bring” the
malpractice suit but merely referred Ms. Miller to Mr. Koksal for advice as to whether she did have
a cause of action against Mr. Parrish, and then cooperated with Mr. Koksal’s investigation which
included discussing the facts of the case with Mr. Koksal and allowing him to review Ms. Miller’s
file. Mr. Marquis cites Black’s Law Dictionary (6th Ed. 1991) for the proposition that “to bring an
action or suit has a customary meaning at law, and refers to the initiation of legal proceedings in a
suit.” He further notes that under the Tennessee Rules of Civil Procedure civil actions are
commenced by filing a complaint signed by the attorney of record who thereby certifies that to the
best of his or her knowledge, information and belief, based upon reasonable inquiry, the claim
asserted is warranted by law and supported by evidence. Mr. Marquis asserts that Mr. Koksal was
Ms. Miller’s attorney of record in initiating the malpractice suit and, therefore, he, not Mr. Marquis,
bears responsibility for that suit. Mr. Marquis cites Wykle v. Valley Fidelity Bank & Trust Company,
658 S.W.2d 96 (Tenn. Ct. App. 1983), wherein we indicated that before one can be liable for
malicious prosecution, one must do something more than merely give information. Mr. Marquis
further notes that in Wykle at page 99 we cited with favor the Restatement of the Law of Torts, 383-
384, Section 653 as follows:
One who gives to a third person, whether public official or private person,
information of another’s supposed criminal conduct or even accuses such other
thereof, causes the institution of such proceedings as are brought by the third
person. The giving of the information, however, does not constitute a
procurement of the proceedings which the third person initiates thereon if it is left
to the uncontrolled choice of the third person to bring the proceedings or not as
he may see fit.
Mr. Marquis asserts that Mr. Koksal had the ‘uncontrolled choice’ of whether to bring the
proceedings or not.
Mr. Parrish argues that the Circuit Court erred in applying the intervening cause doctrine in
this case because malicious prosecution is an intentional tort and the intervening cause doctrine is
only applicable to torts based on negligence. Mr. Parrish also argues that the fact that Mr. Marquis
was not the attorney of record in the malpractice action does not relieve him of liability for malicious
prosecution.
In Waste Management, Inc. of Tennessee v. South Central Bell Telephone Company , 15
S.W.3d 425, 432 (Tenn. Ct. App. 1997) we described the intervening cause doctrine as follows:
The intervening cause doctrine is a common-law liability shifting device. It
provides that a negligent actor will be relieved from liability when a new,
independent and unforseen cause intervenes to produce a result that could not
have been foreseen. The doctrine only applies when (1) the intervening act was
sufficient by itself to cause the injury, (2) the intervening act was not reasonably
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foreseeable by the negligent actor, and (3) the intervening act was not a normal
response to the original negligent actor’s conduct. The customary explanation of
the doctrine is that an independent, intervening cause breaks the chain of legal
causation between the original actor’s conduct and the eventual injury. (citations
omitted) (emphasis added).
It does not appear that the courts in our state have specifically addressed the issue of whether
the intervening cause doctrine is applicable to an intentional tort. However, we note the Court’s
reference to “the negligent actor” in Waste Management and we further note that the Restatement
of Torts, 2d §441(1) defines “intervening force” as “one which actively operates in producing harm
to another after the actor’s negligent act or omission has been committed.” Also, as the Court
recognizes in Waste Management the intervening cause doctrine operates to protect from
unforseeable results. Am. Jur.2d Torts § 25, 624-625 provides:
As to willful acts, persons may be held liable for the consequences that flow
therefrom as a proximate cause, whether or not those consequences could have
been foreseen or anticipated. In such cases, intervening causes are especially
likely not to preclude liability of the wrongdoer.
We are inclined to conclude that the doctrine of intervening cause is not properly applied to
an intentional tort such as malicious prosecution. However, we find alternative grounds for
affirming the Circuit Court’s dismissal of Mr. Parrish’s complaint against Mr. Marquis as set forth
hereinafter.
In support of his argument that Mr. Marquis is not relieved of liability merely by reason of
the fact that he was not Ms. Miller’s attorney of record in the malpractice case, Mr. Parrish cites
Mauldin v. Ball, 58 S.W. 248 (Tenn. 1900).
In Mauldin a warrant was issued for the arrest of the plaintiff upon allegations that he had
obtained money under false pretenses. The warrant was sworn out by an individual identified as
“White.” The action for malicious prosecution charged that the defendant procured White to
commence and continue the prosecution of the plaintiff. On appeal our Supreme Court found that
the trial court had erred in its instructions to the jury as follows at page 250:
It is said that the court erred in charging the jury, in substance, that if they found
that [the defendant] induced White to sue out the warrant, and was the moving
spirit in the prosecution, and used White to protect himself, then he could be held
to the same extent as White could, but, unless he was shown by the evidence to
have been the moving cause of the prosecution, there could be no recovery against
him. On the same feature of the case the court declined to charge, on request, that
if [the defendant] actively ratified what White did, and aided and abetted in the
prosecution, [the defendant] would be liable to the same extent as White for
bringing such prosecution. We think the court erred in this feature, and that the
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charge as given was incorrect, and the charge asked should have been given, and
is an accurate exposition of the true rule in such cases.
Our construction of the Supreme Court’s ruling in Mauldin compels us to the conclusion that,
even if Mr. Marquis was not Ms. Miller’s attorney of record in the malpractice suit and did not bring
that suit against Mr. Parrish, he may yet be liable for malicious prosecution upon proof that he
“ratified” the malpractice suit and “aided and abetted” Mr. Koksal in its prosecution. Although we
find no evidence in the record from which a jury could reasonably conclude other than that, vis a’
vis Mr. Marquis, Mr. Koksal had the uncontrolled choice, of whether to file the malpractice suit,
summary judgment in favor of Mr. Marquis is still inappropriate unless there is also no evidence in
the record from which a jury could reasonably conclude that Mr. Marquis ratified the suit and aided
and abetted in its prosecution.
Mr. Parrish’s argument that Mr. Marquis ratified the malpractice action and aided and abetted
Mr. Koksal in its prosecution is based upon the following assertions:
1) “Marquis formed the opinion ‘that Parrish had breached his fiduciary duty and had
negligently handled litigation on behalf of Mrs. Miller,’ and then advised Mrs. Miller of his opinion
and encouraged her to pursue legal action against Parrish by referring her to Koksal for that
purpose.”
2) “It was the opinion of Marquis that was the basis of the prosecution of Parrish for legal
malpractice.”
3) “Marquis conferred, pre-prosecution, with Koksal, answering Koksal’s questions regarding
the legal malpractice claim against Parrish.”
4) “Koksal prepared the complaint, which Marquis reviewed pre-filing for ‘factual errors’.”
5) “Marquis attended an in-court hearing [in the malpractice suit] with Koksal and ‘conferred
and consulted with Koksal’ during his in-court presentation.”
6) “After Parrish moved to dismiss the malpractice suit [on the ground that it was time barred
under the statute of limitations], Marquis provided an affidavit, which Koksal filed, that was drafted
to avoid the statute of limitations bar and the trial court rejected because it was ‘contrary to extensive
sworn testimony given by ‘Mrs. Miller in Marquis’ presence in Partnership proceedings.”
Mr. Marquis’s affidavit of July 20, 1995, is referenced as evidence supporting the first of the
above assertions. The affidavit states that “it became [Marquis’s] opinion that Parrish had breached
his fiduciary duty and had negligently handled litigation on behalf of Mrs. Miller.” However, the
affidavit does not state that Mr. Marquis “encouraged [Ms. Miller] to pursue legal action”, but only
that he “advised Mrs. Miller that she had a potential cause of action, both individually and
potentially as a limited partner, and encouraged her to contact Ronald C. Koksal to advise her in that
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regard.” It is our determination that the only reasonable construction of these statements is that,
based upon his opinion that Mr. Parrish breached his fiduciary duty and negligently handled
litigation on behalf of Ms. Miller, Mr. Marquis concluded that Ms. Miller might have a cause of
action (the cause of action was only “potential”) against Mr. Parrish. By referring Ms. Miller to Mr.
Koksal for advice as to whether, in Mr. Koksal’s opinion, she in fact did have a cause of action, Mr.
Marquis thereby absolved himself of responsibility for any decision as to whether Ms. Miller should
file the malpractice suit.
Mr. Parrish’s next assertion is that the “basis” of the malpractice lawsuit was Mr. Marquis’s
opinion regarding Mr. Parrish’s alleged breach of fiduciary duty and negligent handling of litigation.
The affidavit of Mr. Koksal signed on September 4, 1998, is offered in support of this assertion. We
disagree that any statement made by Mr. Koksal in this affidavit constitutes evidence that the
malpractice action was based upon the opinion of Mr. Marquis. We quote Mr. Koksal’s affidavit
in pertinent part as follows:
3. The underlying Knox County case, Jennie B. Cain Carum Miller v. Larry E.
Parrish, et al, was referred to me by Robert Marquis, a Knoxville attorney. Mr.
Marquis had represented Ms. Miller on various matters for a number of years. As
stated in his affidavit filed in the underlying case, Mr. Marquis became aware and
formed the opinion that Ms. Miller had a potential cause of action against the
defendants in the underlying action, he so advised Ms. Miller, and he encouraged
her to contact me in that regard. In fact, it was his opinion that Mr. Parrish had
breached his fiduciary duty and had negligently handled litigation on behalf of Ms.
Miller. A copy of that affidavit is attached hereto as Exhibit B.1
4. At the time the suit was initiated and at all times during its pendency,
I believed in the existence of the facts upon which the claims were based and
further believed that under those facts a claim could be valid under applicable law.
I feel that belief was a reasonable one.
In support of his allegation that Mr. Marquis’s opinion was the basis of the malpractice suit
Mr. Parrish specifically references the statement that “[i]n fact, it was [Mr. Marquis’s] opinion that
Mr. Parrish had breached his fiduciary duty and had negligently handled litigation on behalf of Mrs.
Miller.” We do not agree that a jury could reasonably infer from Mr. Koksal’s mere
acknowledgment of this opinion that he filed the suit based upon it. In the very next paragraph Mr.
Koksal states that it was his own belief that facts existed which supported a valid claim under the
law. It is clear from Mr. Koksal’s affidavit that his decision to commence the malpractice action was
based upon his own assessment of the facts and not upon the opinion of Mr. Marquis. At most, Mr.
Koksal’s attestations regarding Mr. Marquis’s opinion merely describe how Mr. Koksal came to be
involved in the case and serve to confirm the validity of Mr. Koksal’s conclusion by showing that
another attorney separately arrived at an opinion consistent with such conclusion. We find nothing
1
The affidavit referred to is apparently Mr. Marquis’s affidavit of July 20, 1995.
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in this affidavit which could be reasonably interpreted as evidence that the malpractice action was
commenced based upon the opinion of Mr. Marquis.
The third assertion of Mr. Parrish is that Mr. Marquis conferred with Mr. Koksal before the
malpractice suit was prosecuted and that Mr. Marquis answered Mr. Koksal’s questions regarding
the malpractice claims. In support of this assertion Mr. Parrish references Mr. Marquis’s November
3, 1998, response to interrogatories. The specific interrogatory and answer cited by Mr. Parrish
provide as follows:
INTERROGATORY NO. 3: Describe the factual investigation defendant
performed before filing the Complaint in the Knox County lawsuit which led
defendant to conclude that probable cause existed to believe that Larry E. Parrish,
Larry E. Parrish, P.C., and General Partner of Cain, Inc. were liable on theories
pled against them in that Complaint.
ANSWER: I allowed Ron Koksal and one of his associates with the firm of
Butler, Vines & Babb to review all of my files connected with the litigation
involving Mr. Parrish. I also answered various questions (I recall that they were
verbal rather than written) which Mr. Koksal had in investigating the matter.
There is nothing in this answer from which a jury could reasonably infer that Mr. Marquis
ratified the filing of the malpractice suit or aided and abetted Mr. Koksal in its prosecution. The
limited conclusion that a jury could reasonably draw from this evidence is that, prior to institution
of the malpractice suit, Mr. Koksal conducted an investigation which included the review of
information in possession of Mr. Marquis and that Mr. Marquis answered questions posed by Mr.
Koksal.
The next assertion of Mr. Parrish - that Mr. Marquis reviewed the malpractice complaint for
factual errors - also derives from Mr. Marquis’s responses to interrogatories filed on November 3
1998:
INTERROGATORY NO. 9: Identify each person who drafted the Complaint
filed in the Knox County lawsuit.
ANSWER: I believe that Ron Koksal and other members of the firm of Butler,
Vine & Babb drafted the Complaint filed in the Knox County lawsuit. I was
asked to review the Complaint to determine if I saw any factual errors contained
in the Complaint.
It is to be expected that Mr. Marquis would be asked to verify the accuracy of facts stated
in the complaint against Mr. Parrish given that he was Ms. Miller’s attorney at times relevant to the
claims in the complaint and, in that capacity was privy to Partnership transactions out of which the
malpractice action arose. But it cannot be reasonably inferred from the mere fact that Mr. Marquis
reviewed the complaint that he either ratified the malpractice suit or aided and abetted Mr. Koksal
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in its prosecution. Furthermore, consistent with Mr. Parrish’s position that the facts surrounding the
allegations of malpractice supported a finding of non-liability, any correction of factual errors would
have aided the defense, rather than the prosecution, of the malpractice suit.
The fifth of the above assertions - that Mr. Marquis appeared in court with Mr. Koksal and
conferred with him during a hearing in the malpractice case - is based upon the following statement
from the affidavit of Mr. Parrish filed March 22, 2002:
When, in Miller v. Parrish, the Circuit Court heard oral argument on the motion
to dismiss and for summary judgment filed by Parrish, Koksal appeared and
presented the argument on behalf of Mrs. Miller; however, Marquis was in court,
seated in the spectator section, intently observing and, from time to time, as the
oral argument progressed, conferred and consulted with Koksal. Before the oral
argument commenced, Koksal and Marquis sat together and talked, in the
courtroom, awaiting the case to be called for argument.
Mr. Parrish’s averment that Mr. Marquis was present at a hearing in the malpractice action
and spoke with Mr. Koksal does not create a genuine issue of material fact with respect to whether
Mr. Marquis ratified the malpractice action and aided and abetted in its prosecution. There is no
indication in this proof as to the content of the conversations that Mr. Marquis and Mr. Koksal are
alleged to have had. Any conclusions that the jury might draw as to the content of those
conversations would necessarily be hypothetical and a controversy that involves a hypothetical or
theoretical set of facts is not justiciable. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d
186 (Tenn. 2000).
The final assertion offered by Mr. Parrish’s firm in support of his claim that Mr. Marquis
ratified the malpractice suit and aided and abetted in its prosecution is that Mr. Marquis provided
an affidavit drafted to avoid the statute of limitations bar in the malpractice suit and such affidavit
was subsequently rejected by the Circuit Court because it was contrary to prior testimony of Ms.
Miller given in Mr. Marquis’s presence. In support of this assertion Mr. Parrish references the
previously noted affidavit of July 20, 1995, wherein Mr. Marquis attests that it was in spring of 1993
that he “first became aware and formed the opinion that Mrs. Miller had a potential cause of action.”
The following paragraph from Mr. Parrish’s own affidavit of March 22, 2002, is referenced as
additional supporting authority:
Koksal filed a response to Affiant’s motion to dismiss, including an Affidavit by
Mrs. Miller, a true copy of which is attached as Exhibit 5 to what is Exhibit 11
hereto; and an Affidavit of Robert S. Marquis, a true copy of which is attached as
Exhibit B to what is Exhibit 7 hereto. The affidavits of Mrs. Miller and Marquis
were designed as an attempt to avoid the statute of limitations bar to Miller v.
Parrish by swearing that Mrs. Miller and Marquis did not discover that Affiant had
pursued the alleged cost-consuming and inefficient litigation in violation of the
duties to the Partnership and Mrs. Miller until the Spring of 1993.
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Finally, in support of this assertion, Mr. Parrish references a portion of the Circuit Court’s
memorandum opinion of July 16, 1996, wherein the Court addresses Ms. Miller’s argument that she
did not discover that she had a cause of action for malpractice until Spring of 1993 and that,
therefore, the malpractice action, which was filed in July of 1993, was timely filed under the one
year statute of limitations. The Court notes that in support of this argument Ms. Miller relies upon
her own affidavit in which she attests that she had no idea that actions taken by Mr. Parrish “were
not legally sound or in my best interest or in the best interest of the [P]artnership until Attorney
Robert Marquis advised me in the Spring of 1993.”. The Court also notes that Ms. Miller relies upon
the noted attestation of Mr. Marquis that in spring of 1993 he advised the plaintiff that she had a
potential cause of action against Mr. Parrish. The Court then states as follows:
The difficulty with these affidavits is that they are in effect contrary to
extensive sworn testimony given by plaintiff in other partnership proceedings
prior to the filing of the instant case. In a deposition given by plaintiff on
February 5, 1992, plaintiff testified at length about her displeasure with Mr.
Parrish and the way he was handling partnership affairs. She particularly
complained about the fact that Mr. Parrish had engaged in protracted litigation on
behalf of the partnership without being successful, and the litigation was
expensive, costing her “thousands of dollars”. In that deposition she identified
Mr. Marquis as her lawyer, and indicated that he was present with her in that
proceeding.
In the face of this prior sworn testimony it is the opinion of the Court that
the affidavits filed by plaintiff do not create a genuine issue of material fact on the
statute of limitations questions in this case. See Price v. Becker, 812 S.W.2d 597(Tenn. App., 1991). While plaintiff may be in position to argue that she did not
understand all of the legal ramifications of Parrish’s legal activities on behalf of
the partnership, she was obviously aware of the facts that she now says constituted
a wrong on the part of the Parrish defendants.
Mr. Parrish contends that “the jury could reasonably infer from the fact that Marquis gave
a false affidavit in an attempt to avoid dismissal of the malpractice suit that Marquis ratified bringing
the underlying suit and actively assisted in continuing the prosecution.”
The issue before the Circuit Court was whether Ms. Miller first became aware that she had
a cause of action against Mr. Parrish for malpractice over one year prior to the filing of the
malpractice complaint. In essence, the Court found that, as early as February of 1992, Ms. Miller
was aware of facts that constituted the alleged wrongs for which she subsequently filed the
malpractice suit and, therefore, she could not rely upon the affidavit of Mr. Marquis for the argument
that she was not aware that she had a cause of action until spring of 1993. That is not to say,
however, that Mr. Marquis’s affidavit was false, but only that Ms. Miller’s assertion that she did not
become aware of the facts alleged in the complaint filed by her and Mr. Koksal until advised of them
by Mr. Marquis. Ms. Miller’s sworn deposition testimony which the Court referred to and found to
be contrary “in effect” to the affidavits was that she was “displeased with Mr. Parrish and the way
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he was handling partnership affairs” and that she complained about the fact that Mr. Parrish had
engaged in protracted, unsuccessful litigation on behalf of the partnership which cost her ‘thousands
of dollars’. We do not agree that this testimony of Mrs. Miller is contrary to the attestation of Mr.
Marquis that “he first became aware and formed the opinion that she had a potential cause of action
in 1993.” A contrary construction would require that we find that in 1992 when Ms. Miller
complained about unsuccessful, expensive and protracted litigation Mr. Marquis necessarily
simultaneously formed the opinion that she had a potential cause of action for legal malpractice. We
do not agree that the Court intended that construction. Only Mr. Marquis knows when he formed
his opinion regarding a potential legal claim against Mr. Parrish. The Court’s findings are directed
toward the veracity of Ms. Miller, not the veracity of Mr. Marquis. Because Mr. Parrish’s argument
is based upon the premise that the Court found Mr. Marquis’s affidavit to be false we find such
argument to be without merit.
Having determined that summary judgment in favor of Mr. Marquis is proper upon grounds
that Mr. Parrish has failed to create a genuine issue of material fact as to whether Mr. Marquis
ratified the malpractice suit and aided and abetted in its prosecution, we find it unnecessary to
address the issue of whether Mr. Marquis’s motion for summary judgment should have been granted
upon the additional ground that the suit was filed with probable cause and without malice.
For the reasons stated herein we reverse the Circuit Court’s order of April 12, 2002, to the
extent that it grants summary judgment in favor of Mr. Koksal and we affirm the Circuit Court’s
order of April 19, 2002, to the extent that it grants summary judgment in favor of Mr. Marquis. We
further remand for further proceedings consistent with this opinion. Costs of appeal are adjudged
equally against Larry E. Parrish and Larry E. Parrish , P.C. and their surety and Ronald C. Koksal.
_________________________________________
HERSCHEL P. FRANKS, JUDGE
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