605 S.W.3d 619
Tenn. Ct. App.2020Background
- Plaintiff received from a third party a 15‑second video snippet and a bondage photograph of his wife; he forwarded those images to close friends while on a business trip in San Diego. Wife had earlier participated in a videotaped sexual encounter with another man.
- Wife sued for divorce; Marlene Moses and MTR Family Law represented Wife and, during a meeting, Moses advised Wife that pursuing criminal charges might provide leverage in the divorce and referred her to a criminal defense attorney.
- Wife reported Plaintiff to the Franklin Police Department; Plaintiff was interviewed and listed as a suspect on an incident report referencing Tenn. Code Ann. § 39‑17‑902 (production/distribution of obscene material). No arrest, charge, or indictment followed; Franklin PD later transferred the matter to San Diego PD, which closed the investigation.
- Plaintiff incurred legal fees and emotional distress and sued Moses and her firm for malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress.
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02(6). The trial court granted the motion, finding no prior judicial proceeding for malicious prosecution, no underlying tort for conspiracy, and that Moses’s conduct (advising client to report truthful allegations and referring counsel) was not a breach or sufficiently outrageous.
- The Court of Appeals affirmed the dismissal, holding the complaint, even when construed liberally, failed to state any actionable claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court properly apply Tenn. R. Civ. P. 12.02(6) (treating allegations as true)? | Pagliara: court mischaracterized exhibits and improperly relied on inferences adverse to him. | Moses: exhibits are part of the complaint and legal conclusions need not be accepted. | Held: Court properly considered the attached police report and accepted factual allegations but not legal conclusions. |
| Negligent infliction of emotional distress — sufficiency? | Pagliara: Moses breached a duty by using criminal process to harm him, causing severe emotional injury. | Moses: advising a client to report truthful conduct and referring counsel is not a breach. | Held: Dismissed — no breach proven from lawful advice/referral; claim fails as pleaded. |
| Malicious prosecution — was a "prior suit or judicial proceeding" instituted? | Pagliara: Wife and Moses initiated a criminal proceeding by contacting police and prompting investigation. | Moses: a mere police investigation without charges/arrest/indictment is not a judicial or quasi‑judicial proceeding. | Held: Dismissed — no judicial/quasi‑judicial proceeding was instituted; malicious prosecution requires such. |
| Intentional infliction of emotional distress — conduct outrageous? | Pagliara: advising client to pursue criminal charges for leverage and referring counsel is outrageous and intended to cause distress. | Moses: advising a client to report truthful allegations is not beyond all bounds of decency. | Held: Dismissed — alleged conduct not sufficiently extreme/outrageous as matter of law. |
| Civil conspiracy — requirement of underlying tort met? | Pagliara: Moses and Wife conspired to use criminal process to gain advantage, constituting unlawful means. | Moses: no underlying tort; contacting police with truthful information is not tortious. | Held: Dismissed — no actionable underlying wrongful conduct alleged; conspiracy fails. |
Key Cases Cited
- Lind v. Beaman Dodge, Inc., 356 S.W.3d 889 (Tenn. 2011) (12.02(6) motion admits factual allegations but tests legal sufficiency).
- SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012) (standards for reviewing Rule 12.02(6) dismissals).
- Roberts v. Fed. Exp. Corp., 842 S.W.2d 246 (Tenn. 1992) (elements of malicious prosecution).
- Kauffman v. A. H. Robins Co., 448 S.W.2d 400 (Tenn. 1969) (administrative/quasi‑judicial proceedings may support malicious prosecution in some contexts).
- Lewis v. Allen, 698 S.W.2d 58 (Tenn. 1985) (clarifying which administrative bodies qualify as judicial for malicious prosecution).
- Kincaid v. SouthTrust Bank, 221 S.W.3d 32 (Tenn. Ct. App. 2006) (elements of civil conspiracy require unlawful purpose or unlawful means).
- Odom v. Claiborne County, Tennessee, 498 S.W.3d 882 (Tenn. Ct. App. 2016) (standard for "outrageous" conduct in IIED claims).
- Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012) (elements of negligent and intentional infliction of emotional distress).
- Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004) (IIED requires conduct beyond tortious or criminal intent).