Elliot H. Himmelfarb, M.D. v. Tracy R. Allain

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 13, 2011 Session

ELLIOT H. HIMMELFARB, M.D. ET AL. v. TRACY R. ALLAIN

Appeal from the Circuit Court for Williamson County

No. 07454 Robbie T. Beal, Judge

No. M2010-02401-COA-R10-CV - Filed June 9, 2011

Two physicians filed this malicious prosecution action against a former patient after she

voluntarily dismissed, without prejudice, a medical malpractice action she filed against them.

The defendant, the former patient, moved for summary judgment asserting that the plaintiffs

could not prove the essential elements of a malicious prosecution claim: that the medical

malpractice suit was brought without probable cause, that it was brought with malice, and

that it was terminated in the physicians’ favor. The trial court denied the motion. We have

determined that the issue of favorable termination in this case involves questions of fact and

law, and that fact questions concerning the circumstances surrounding the voluntary

dismissal without prejudice of the medical malpractice action are in dispute. We have also

determined that there are genuine issues of material fact concerning the other essential

elements. Therefore, the defendant’s motion for summary judgment was properly denied.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT

and R ICHARD H. D INKINS, JJ., joined.

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy Allain.

M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot Himmelfarb, M.D., Elliot

Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

OPINION

The plaintiffs in this action are Douglas York, M.D. and Elliot Himmelfarb, M.D. The

defendant is Ms. Tracy Allain, a former patient of Drs. York and Himmelfarb. The genesis

of the parties’ relationship occurred in December of 2004 when Dr. York, a surgeon, placed

a port-a-cath inside Ms. Allain to facilitate intravenous access for treatment of her chronic

pancreatitis. The procedure was successful and uneventful. A post-operative x-ray was taken,

which was interpreted by Dr. Himmelfarb. All of this occurred at Williamson County

Medical Center.

In April of 2005, Ms. Allain was admitted to Vanderbilt University Medical Center

(“VUMC”) for placement of a new port-a-cath. On April 12, 2005, while still in VUMC, Ms.

Allain was informed by a physician that a guidewire was found in a vein leading to her heart,

which apparently had not been removed during a previous procedure. Ms. Allain states that

the Vanderbilt physician also advised her that the guidewire was “likely” placed there while

she was a patient at Williamson County Medical Center (“WCMC”) in December of 2004.

On April 10, 2006, Ms. Allain filed a medical malpractice action against Dr. York,

Dr. Himmelfarb, and WCMC alleging that they were responsible for leaving the guidewire

in her vein. Each of the defendants filed separate answers denying any liability and denying

being responsible for the guidewire that was found while Ms. Allain was at VUMC.

Three months later, on July 14, 2006, Ms. Allain filed a notice of voluntarily non-suit

of her medical malpractice action against Dr. York, Dr. Himmelfarb, and WCMC. An order

dismissing the action without prejudice was entered on July 17, 2006. Prior to dismissing the

Williamson County action against Dr. York, Dr. Himmelfarb, and WCMC, Ms. Allain filed

a similar medical malpractice action in Davidson County Circuit Court asserting that VUMC

and its physicians were responsible for leaving the guidewire in her vein. Soon thereafter,

Ms. Allain’s medical malpractice claim against VUMC was compromised and settled.

On July 17, 2007, Dr. Himmelfarb and Dr. York, assuming the new role as plaintiffs,

filed this action asserting claims for malicious prosecution and abuse of process against Ms.

Allain.1 Ms. Allain filed an answer, and later filed a motion for summary judgment claiming

that she was entitled to judgment as a matter of law because the plaintiffs were unable to

demonstrate essential elements of their abuse of process and malicious prosecution claims.

Following a hearing on August 23, 2010, the trial court denied summary judgment on the

malicious prosecution claim. The court held that there were disputed issues of material fact

relating to probable cause and malice on the malicious prosecution claim. The court further

held that the element of favorable termination in the malicious prosecution claim, was a

question of fact not law, and found that the voluntary nonsuit was a favorable termination for

the plaintiffs. For reasons unexplained by the record, the trial court did not rule on the abuse

of process claim. Ms. Allain filed a motion for interlocutory appeal pursuant to Tenn. R.

App. P. 9, which the trial court denied. Ms. Allain then filed a timely petition for appeal

pursuant to Tenn. R. App. P. 10, which this court granted.

1

WCMC is not a party to this action against Ms. Allain.

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A NALYSIS

Ms. Allain contends that the trial court erred in denying her motion for summary

judgment. She insists the defendants are unable to demonstrate the essential elements of the

malicious prosecution claim, and, therefore she is entitled to judgment as a matter of law. She

also contends that the trial court erred in failing to address her motion as it pertained to the

abuse of process claim.

I.

S TANDARD OF R EVIEW

This appeal arises from the denial of summary judgment. Summary judgment is

appropriate when a party establishes that there is no genuine issue as to any material fact and

that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke,

113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be

resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);

Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when

genuine disputes regarding material facts exist. See Tenn. R. Civ. P. 56.04. The party seeking

summary judgment bears the burden of demonstrating that no genuine disputes of material

fact exist and that the party is entitled to judgment as a matter of law. Godfrey v. Ruiz, 90

S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary judgment, the moving party must

affirmatively negate an essential element of the nonmoving party’s claim or show that the

moving party cannot prove an essential element of the claim at trial. Martin v. Norfolk S. Ry.

Co., 271 S.W.3d 76, 83 (Tenn. 2008).

Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth

Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). Because the resolution

of a motion for summary judgment is a matter of law, we review the trial court’s judgment

de novo with no presumption of correctness. Martin v. Norfolk Southern Ry. Co., 271 S.W.3d

76, 84 (Tenn. 2008) The appellate court makes a fresh determination that the requirements

of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1977). As does the trial court, the appellate court considers the evidence in the light most

favorable to the nonmoving party and resolve all inferences in that party’s favor. Martin, 271

S.W.3d at 84; Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz, 90

S.W.3d 692, 695 (Tenn. 2002). When reviewing the evidence, the appellate court first

determines whether factual disputes exist. If a factual dispute exists, the court then

determines whether the fact is material to the claim or defense upon which the summary

judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd

v. Hall, 847 S.W.2d 208, 215 (Tenn.1993).

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A party is entitled to summary judgment only if the “pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits . . . 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. A properly supported motion for summary

judgment must show that there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. Staples v. CBL & Assocs., Inc., 15 S.W.3d

83, 88 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).

If the moving party makes a properly supported motion, then the nonmoving party is required

to establish the existence of the essential elements of the claim. McCarley, 960 S.W.2d at

588; Byrd, 847 S.W.2d at 215. If, however, the moving party does not properly support the

motion, then the nonmoving party’s burden to produce either supporting affidavits or

discovery is relieved and the motion must fail. McCarley, 960 S.W.2d at 588; Martin, 271

S.W.3d at 83.

To make this showing and shift the burden of production, a moving party may: 1)

affirmatively negate an essential element of the nonmoving party’s claim; or 2) show that the

nonmoving party cannot prove an essential element of the claim at trial. Martin, 271 S.W.3d

at 83; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd, 847 S.W.2d at 215

n.5. Whichever approach the moving party takes, both require more than assertions of the

nonmoving party’s lack of evidence. Martin, 271 S.W.3d at 83-84. In addition, the moving

party must present evidence that more than “raises doubts” about the ability of the

nonmoving party to prove its claim at trial. Id. at 84. The moving party must produce

evidence or refer to previously submitted evidence. Id.; accord Hannan, 270 S.W.3d at 5.

Thus, to negate an essential element of a claim, a moving party must refer to evidence that

tends to disprove an essential element of the claim made by the nonmoving party. Martin,

271 S.W.3d at 84.

Ms. Allain, as the moving party, had the burden to negate an essential element of the

plaintiffs’ claim of malicious prosecution or establish that the plaintiffs cannot prove an

essential element of the claims at trial. See Martin, 271 S.W.3d at 83 (citing Hannan, 270

S.W.3d at 5; McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.5). Therefore, Ms.

Allain was required to shift the burden of production to plaintiffs by either affirmatively

negating an essential element of their claim or showing that they could not prove an essential

element of their claim at trial. Martin, 271 S.W.3d at 83; Hannan, 270 S.W.3d at 8-9;

McCarley, 960 S.W.2d at 588.

II.

M ALICIOUS P ROSECUTION C LAIM

There are three essential elements to a malicious prosecution claim: (1) that a prior

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lawsuit or judicial proceeding was brought against the plaintiff without probable cause, (2)

that the prior lawsuit or judicial proceeding was brought against the plaintiff with malice, and

(3) that the prior lawsuit or judicial proceeding terminated in the plaintiff’s favor. Parrish

v. Marquis, 172 S.W.3d 526, 530 (Tenn. 2005) (citing Christian v. Lapidus, 833 S.W.2d 71,

73 (Tenn. 1992); Roberts v. Fed. Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992)).

The trial court held that the first two elements, whether there was probable cause and

whether there was malice, are questions of law and that enough disputed facts existed on

these two issues for the matter to be tried. On the last element, whether the underlying

lawsuit resulted in a favorable termination to Doctors York and Himmelfarb, the trial court

held that this was a question of fact that required an examination of not only the order

dismissing the action, but also the surrounding facts and circumstances. The trial court then

held that Ms. Allain’s voluntary nonsuit, without prejudice, of the medical malpractice action

was a favorable termination for the plaintiffs. For the above reasons, the trial court denied

Ms. Allain’s motion for summary judgment as to the malicious prosecution claim. We have

determined the trial court was correct in denying Ms. Allain’s motion for summary judgment

but for different reasons, which we explain below.

The first element of a malicious prosecution claim is that the prior lawsuit was filed

without probable cause. The probable cause element in a malicious prosecution action exists

when there are “such facts and circumstances sufficient to create in a reasonable mind the

belief that the accused is guilty of the crime charged.” Leland v. Louisville Ladder Group

LLC, No. M2006-02109-COA-R3-CV, 2007 WL 4440923, at *4 (Tenn. Ct. App. Dec. 5,

2007) (quoting Roberts v. Federal Express Corp., 842 S.W.2d 246, 248 (Tenn. 1992)).

Probable cause is to be determined “solely from an objective examination of the surrounding

facts and circumstances.” Id. (citing Roberts, 842 S.W.2d at 248). “The determination of the

reasonableness of a defendant’s conduct [in a malicious prosecution action] should be made

by a jury.” Roberts, 842 S.W.2d at 248-49.

Ms. Allain argues that Drs. “York and Himmelfarb cannot point to any material fact

which would show Allain did not have reason or probable cause to file the underlying

complaint in view of the information she had before her and at the time the suit was filed.”

The facts, however, demonstrate that Dr. York told Ms. Allain prior to the filing of the

lawsuit that he was not at fault for leaving the guidewire in and claimed that an x-ray taken

following the procedure he performed demonstrated this fact. Further, Dr. York claims that

a reasonable investigation prior to the filing of the lawsuit would have revealed he was not

the proper party. Conversely, Ms. Allain contends that the x-ray was blurry and did not

clearly indicate that the guidewire was not present following the procedure. Our Supreme

Court has clearly stated that the reasonableness of the defendant’s conduct in the underlying

action must be determined by a jury, if reasonable minds may differ on the issue. See

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Roberts, 842 S.W.2d at 248-49.2 The parties have identified facts in the record to dispute

whether it was reasonable for Ms. Allain to have filed the medical malpractice action against

Drs. York and Himmelfarb. Based upon these facts, we believe reasonable minds may differ

on the issue of probable cause. Therefore, Ms. Allain is not entitled to summary judgment

on this issue.

The second element of a malicious prosecution claim is that the underlying lawsuit

was brought with malice. Ms. Allain contends that plaintiffs “have presented no proof

beyond the allegations of their complaint that [she] filed the underlying claim with malice

or in the absence of good faith.” Again, we believe Ms. Allain misunderstands her burden

as the moving party on summary judgment. As the moving party, it is her burden to either

negate this element of the plaintiffs’ malicious prosecution claim or demonstrate that they

cannot prove the element at trial. Hannan, 270 S.W.3d at 5. In addition, Ms. Allain as the

moving party must present evidence that more than “raises doubts” about the ability of the

nonmoving parties, Drs. York and Himmelfarb, to prove their claim, or this essential element,

at trial. See Martin, 271 S.W.3d at 84.

We previously determined that the issue of probable cause was not negated for the

purpose of summary judgment. This is significant because should the jury find that Ms.

Allain lacked probable cause to file the underlying lawsuit, this finding may give rise to an

inference of malice. Sullivan v. Young, 678 S.W.2d 906, 911 (Tenn. Ct. App. 1984). “The

inference is not one of law but is a presumption of fact which may be rebutted, thus making

malice an issue to be decided by the jury where a criminal prosecution is instituted without

probable cause.” Id. (quoting Lewis, 618 S.W.2d at 303). For the reasons stated above, we

have determined that Ms. Allain did not negate the essential element of malice and she did

not demonstrate that the plaintiffs could not demonstrate this element at trial. Therefore, Ms.

2

The trial court found this issue was a matter of “law.” While that was once correct, since Roberts

it is a matter of “fact,” as this court noted in Swindle v. Krystal Co.:

Until the Roberts decision, Tennessee courts have always considered probable cause to be

a question of law. See Logan, 676 S.W.2d at 951; Cohen v. Cook, 224 Tenn. 729, 731, 462

S.W.2d 499, 500 (1970); Memphis Gayoso Gas Co. v. Williamson, 56 Tenn. 314, 343

(1872). However, in Roberts the Supreme Court reasoned that the probable cause

determination, the conduct of a reasonable man under the circumstances, is in essence no

different than the determination of negligence. Roberts, 842 S.W.2d at 248. Thus, the Court

held that “where reasonable minds can differ as to the existence of probable cause a jury is

to decide the issue.” Id. at 249.

Swindle, No. 02A01-9406-CV-00136, 1995 WL 262419, at *2 (Tenn. Ct. App. May 8, 1995)(emphasis

added).

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Allain has not established that she is entitled to summary judgment on the issue of malice.

As for the third essential element, favorable termination, Ms. Allain contends that the

trial court erred in finding that her voluntary nonsuit, without prejudice, constituted a

favorable termination for the plaintiffs. She also contends the trial court erred in holding that

the issue of favorable termination was a question of fact; she insists it is a question of law.

The Tennessee Supreme Court thoroughly analyzed this issue in Parrish v. Marquis,

172 S.W.3d 526 (Tenn. 2005).3 The Court first looked to its decision in Christian v. Lapidus,

833 S.W.2d 71 (Tenn. 1992), in which it held that abandonment of a civil lawsuit may

constitute a final and favorable termination for a malicious prosecution action ‘“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.”’ Id. at 530 (quoting Christian,

833 S.W.2d at 74). The Court noted that the holding in Christian “did not require the plaintiff

in the malicious prosecution action to establish a ‘final judgment on the merits’ or ‘an

inference of innocence’ in addition to the abandonment of the lawsuit,” stating further that

the ruling in Christian was limited to the procedural context of that case, i.e., the

abandonment of a lawsuit. Id. (quoting Christian, 833 S.W.2d at 74). The Court then

reasoned that other procedural dispositions may constitute a favorable termination, stating:

[A] leading treatise states that “the termination must not only be favorable [to

the defendant in the underlying proceeding], but must also reflect the merits

and not merely a procedural victory.” W. Page Keeton et al., Prosser and

Keeton on The Law of Torts, § 119 (5th ed. 1984) (“Prosser”); see also Foshee

v. So. Fin. & Thrift Corp., 967 S.W.2d 817, 819-20 (Tenn. Ct. App. 1997)

(citing Prosser). The vast majority of state jurisdictions follow this rule in

cases where, as in the present case, the underlying proceeding was a civil

matter. See Vitauts M. Gulbis, Annotation, Nature of Termination of Civil

Action Required to Satisfy Element of Favorable Termination to Support

Action for Malicious Prosecution, 30 A.L.R.4th 572 (1984 & Supp. 2005).

Parrish, 172 S.W.3d at 531 (emphasis added). Furthermore, the Court stated that when

determining “whether a specific result was a favorable termination, a court must examine the

circumstances of the underlying proceeding.” Id. (citing Siliski v. Allstate Ins. Co., 811 A.2d

148, 151 (2002) (citing Restatement (Second) of Torts, § 674, cmt. j (1977))) (emphasis

3

In Parrish, the specific issue was whether a dismissal of an underlying action based on the statute

of limitations and standing constituted a final and favorable termination for a subsequent malicious

prosecution action. Id. at 528.

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added).4 In this regard, the Court noted:

If a court concludes that “the termination does not relate to the merits –

reflecting on neither innocence of nor responsibility for the alleged misconduct

– the termination is not favorable in the sense that it would support a

subsequent action for malicious prosecution.” Lackner, 159 Cal. Rptr. 693,

602 P.2d at 395. As the Supreme Court of Vermont has further explained:

[I]f the manner of termination, including dismissal, reflects

negatively on the merits of the case, it will be considered

favorable to the defendant. . . . More specifically, if the

dismissal somehow indicates that the defendant is innocent of

wrongdoing, it will be considered a favorable termination. . . .

On the other hand, if the reason for dismissal is “not

inconsistent” with a defendant’s wrongdoing, it will not be

considered a favorable termination. . . . If the circumstances

surrounding dismissal are ambiguous on this point, the

determination should be left for trial.

Parrish, 172 S.W.3d at 531 (quoting Siliski, 811 A.2d at 151–52; citing Union Oil of Calif.

Amsco Div. v. Watson, 468 So.2d 349, 353–54 (Fla. Dist. Ct. App.1985)).

Based upon the above analysis, our Supreme Court held that the issue of favorable

termination may involve both questions of fact and law. Therefore, in the context of a motion

for summary judgment, if the surrounding circumstances of the termination of the underlying

action are disputed, meaning that material facts relevant to that issue are in dispute, then the

issue should be left for trial. See id. However, if the surrounding circumstances of the

termination of the underlying action are not in dispute, then it is a question of law, which the

trial court may decide on summary judgment. Id. This is also the approach adopted by the

Restatement (Second) of Torts § 681(B), which states that in an action for wrongful civil

proceedings, the court determines whether “the proceeding was terminated in favor of the

plaintiff,” but the jury determines “the circumstances under which the proceedings were

terminated.”

4

In Siliski, the Vermont Supreme Court held that a voluntary dismissal without prejudice did not

constitute a favorable termination on the merits, because, after examining the surrounding circumstances,

it was determined that the action was dismissed due to a potential conflict that arose with the defendant’s

representation, and thus, the dismissal was taken to “preserve [the defendant’s] ability to reinstate the claim

should she find substitute counsel,” and thus did not reflect on the merits. Siliski, 811 A.2d at 152.

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We acknowledge Ms. Allain’s reliance on this court’s ruling in Lane v. Becker, 334

S.W.3d 756 (Tenn. Ct. App. 2010), to assert that a procedural disposition does not constitute

a favorable termination. As she states, Lane held that a Tenn. R. Civ. P. 41.01 voluntary

dismissal of the underlying case was not a favorable termination because “it was a voluntary

dismissal on procedural grounds and the order did not ‘reflect on the merits’ of the

underlying defamation case.” Id. at 761 (emphasis added). We have determined her reliance

on Lane is misplaced.

The decision in Lane was based on two principal factors, that the order dismissing the

case without prejudice did not reflect on the merits of the underlying case and that the merits

were never considered by the trial court. Id. at 761-62. The court’s reliance on these two

factors in Lane is clear from the following:

The order of voluntary dismissal in the underlying action clearly does not

reflect on the merits of the underlying case. The order is procedural in nature

and does not refer to the elements of defamation, outrageous conduct, and civil

conspiracy, or whether there was proof to support the claims or no proof to

support the claims. The merits of the claims were never considered by the trial

court in the underlying case. Lane has not established a favorable termination

for purposes of the malicious prosecution claim. Because an essential element

of the claim was negated, the trial court’s dismissal of the malicious

prosecution claim is affirmed.

Id. at 762 (emphasis added).

Although we are in agreement with Lane, to the extent that a dismissal of the

underlying case on mere procedural grounds that does not “reflect on the merits” is not a

favorable termination, Parrish, 172 S.W.3d at 531, we respectfully differ to the extent the

conclusion in Lane was based on what is stated and what is not stated in “the order of

voluntary dismissal” in the underlying case. As the quote from Lane in the paragraph above

reveals, the conclusion that “Lane has not established a favorable termination for purposes

of the malicious prosecution claim” was based on the following findings: (1) the “order of

voluntary dismissal in the underlying action clearly does not reflect on the merits of the

underlying case,” (2) the “order is procedural in nature,” (3) the order does not indicate

“whether there was proof to support the claims or no proof to support the claims,” and (4)

“the merits of the claims were never considered by the trial court in the underlying case.”

Lane, 334 S.W.3d at 762. Our Supreme Court’s ruling in Parrish is controlling on this issue

and we do not read Parrish as requiring that the order dismissing the underlying case be

based on the merits or that it reflect on the merits. Instead, as Parrish instructs, in the event

the order dismissing the underlying case does not reveal whether termination was on the

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merits or favorable to the former defendant (now plaintiff), we are to make further inquiries

to ascertain the reasons for or the circumstances surrounding the termination.5 Parrish, 172

S.W.3d at 531 (citing Siliski, 811 A.2d at 151) (citing Restatement (Second) of Torts, § 674,

cmt. j)) (stating “[i]n determining whether a specific result was a favorable termination

[particularly when the order does not state such], a court must examine the circumstances of

the underlying proceeding”).

Our reasoning is further influenced by the rationale for requiring a plaintiff to

establish that termination of the underlying proceeding “was not simply based on mere

technical or procedural grounds.” Id. As our Supreme Court observed in Parrish:

The rationale for requiring a plaintiff in a malicious prosecution action to

establish that the favorable termination of the underlying proceeding was not

simply based on mere technical or procedural grounds is

that it tends to indicate the innocence of the accused, and

coupled with the other elements of lack of probable cause and

malice, establishes the tort [of malicious prosecution].

....

It is not essential to maintenance of an action for malicious

prosecution that the prior proceeding was favorably terminated

following trial on the merits. However, termination must reflect

on the merits of the underlying action.

Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 394

(1979) (citations omitted) (emphasis added); see also Frey v. Stoneman, 150

Ariz. 106, 722 P.2d 274, 278 (1986) (favorable termination “indicates in some

fashion that the accused is innocent of wrongdoing”); Alcorn v. Gordon, 762

S.W.2d 809, 812 (Ky. Ct. App. 1988) (favorable termination must reflect on

the merits); Palmer Dev. Corp. v. Gordon, 723 A.2d 881, 884 (Me. 1999)

(favorable termination must reflect on the merits); Siliski v. Allstate Ins. Co.,

5

If the absence of a ruling by the trial court “on the merits” or “reflecting on the merits” were fatal

to a malicious prosecution claim, then an examination of the circumstances surrounding termination of the

underlying case would be superfluous and we do not believe that to be the case.

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174 Vt. 200, 811 A.2d 148, 151 (2002) (favorable termination must relate “to

the merits of the underlying suit or the circumstances surrounding the

dismissal”).

Parrish, 172 S.W.3d at 531.

As the authorities clearly state, it is not essential that the underlying action was

favorably terminated following a trial on the merits. Id. at 531 (quoting Lackner, 602 P.2d

at 394). Instead, termination must either reflect on the merits of the underlying action, relate

to the merits of the underlying case or the circumstances surrounding its dismissal, or

indicate that the accused is innocent of the alleged wrongdoing. Id. (citing Alcorn, 762

S.W.2d at 812; Siliski, 811 A.2d at 151; Frey, 722 P.2d at 278).

For the reasons stated above, we find Ms. Allain’s reliance on Lane misplaced. We

also find that the trial court correctly found that Ms. Allain failed to demonstrate that Drs.

York and Himmelfarb could not establish the element of favorable termination. In Ms.

Allain’s affidavit, which she submitted in support of her motion for summary judgment, she

stated:

20. In late June of 2006, Mr. Thompson [her attorney] informed me that John

McCauley from Vanderbilt University Medical Center informed him that it

may have been Vanderbilt University’s medical personnel who left the guide

wire in my body.

21. Mr. Thompson advised me that if he could get confirmation of this new

information that he would dismiss Dr. York and the other defendants from the

Williamson County lawsuit.

23. As soon as I learned from Mr. Thompson that the wire may not have come

from the act of Dr. York in 2004 and others, I agreed with Mr. Thompson’s

advice to dismiss all the defendants as soon as possible.

25. As soon as Mr. Thompson confirmed the wire was more likely left in by

doctors and medical personnel at Vanderbilt University Medical Center we

dismissed those claims against Dr. York and others in July of 2006.

The above testimony, which is undisputed, establishes that Ms. Allain voluntarily

dismissed the medical malpractice action against Drs. York and Himmelfarb when she

determined that doctors at VUMC were at fault for leaving the guidewire in her vein, not Drs.

York and Himmelfarb. Moreover, this evidence “reflects negatively on the merits” of Ms.

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Allain’s previous case against Drs. York and Himmelfarb; thus, it “will be considered

favorable” to them as noted in Parrish. Id. at 531 (quoting Siliski, 811 A.2d at 151-52).

Moreover, this evidence indicates that Drs. York and Himmelfarb are innocent of the alleged

wrongdoing – leaving a guidewire in Ms. Allain’s vein; thus, “it will be considered a

favorable termination.” Id.

For the above reasons, we affirm, although on different grounds, the trial court’s

determination that Ms. Allain was not entitled to summary judgment on the malicious

prosecution claim.

III.

A BUSE OF P ROCESS C LAIM

Ms. Allain also contends the trial court erred in failing to address her motion for

summary judgment as to the abuse of process claim. While the trial court did not make a

ruling on the abuse of process claim, we find no error with this in that this appeal is not from

a final judgment; this case is before this court pursuant to a Tenn. R. App. P. 10 interlocutory

appeal, which is not a matter of right. Moreover, we are remanding the case to the trial court

for further proceedings. Thus, on remand, the trial court may rule on Ms. Allain’s previous

motion concerning the abuse of process claim as well as any other motions or issues the

parties may raise as this case proceeds in the trial court.

I N C ONCLUSION

The judgment of the trial court is affirmed and this matter is remanded to the trial

court for further proceedings consistent with this opinion. Costs of appeal are assessed

against Tracy Allain, Appellant.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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