Sex, Lies, (Drugs) and Videotape … and Malicious Prosecution

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The 1989 movie, “Sex, Lies, and Videotape,” starring James Spader and Andie MacDowell, and directed by Steven Soderbergh, told the story of a young couple, a junior partner at a law firm and his housewife spouse; the idyllic life shown to the world may not have been so.  Life imitates art, doesn’t it?

The Tennessee Court of Appeals recently affirmed a Rule 12.02(6) dismissal (failure to state a claim upon which relief can be granted) of a malicious prosecution action by a husband against his wife’s divorce attorneys.  Pagliara v. Moses, 2020 WL 838482, decided February 20, 2020.  The wife, purportedly acting on the advice of her divorce attorney, filed a police report, allegedly “to obtain leverage over” the husband, asserting that the husband violated Tennessee law by publishing a “full high-definition videotape” of the wife meeting another man at a hotel and using Ecstasy and engaging in sexual relations.  The wife had executed an antenuptial agreement and had been advised that her financial prospects in the divorce were limited.

The wife met with the police and filed a report, but not a formal criminal charge.  She relayed her devastation by her husband’s delivery of the video to their close friends. She provided a videotaped interview and she stated that she hoped her husband would not get probation.

The Franklin, Tennessee police met with husband and advised that he had been accused of violation of Tennessee’s “revenge porn statute.”  Husband denied violation of the statute and provided legal authority as to the reasons the statute did not apply.

Because the video had been forwarded by husband while he was in San Diego, the Franklin Police transferred the case to the San Diego Police Department.  Wife filed a report, but not a charge, and husband was never arrested.  The San Diego Police Department ultimately closed the case “but not until after Plaintiff (husband) had incurred significant legal expense and suffered severe emotional distress.”

The trial court accepted all of the facts alleged in the complaint as true, and dismissed the malicious prosecution claim because “a prior suit or judicial proceeding had not been initiated against Plaintiff (husband).”

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.

Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-48 (Tenn, 1992).

The appellate court held that there was no arrest, criminal charge or indictment, or even a quasi-judicial proceeding, arising from wife’s reports to the police.

Tennessee has recognized malicious prosecution actions against attorneys for improper lawsuits since 1980.  In Peerman v. Sidicane, 605 S.W.2d 242 (Tenn. App. 1980), the appellate court affirmed a jury verdict in favor of the plaintiff-physician against the defendant-attorney for malicious prosecution of a civil action. The defendant-attorney, without a factual basis, had sued the plaintiff-physician for professional negligence and unlawful fee splitting in order to punish the plaintiff-physician for requesting payment of an 11-month old bill for medical services provided to attorney-defendant’s client.  The underlying complaint sought $100,000 compensatory damages and punitive damages against the plaintiff-physician.  This complaint was dismissed on summary judgment and affirmed on appeal.

The defendant-attorney argued that there was “no cause of action the State of Tennessee allowing such an action against an attorney.”  The defendant-attorney argued that recognition of the cause of action would chill Tennessee’s attorneys’ representation of their clients.  The Court of Appeals held:

“We believe that under the peculiar facts of this case and the succession of actions of the defendant who continued to press the case without the consent of his client and without her knowledge, and considering certain allegations in the complaint that were not predicated on any information his client gave him but which were entered in the complaint from pure speculation on his part, and where he prosecuted a groundless appeal without the consent of his client, the action against the attorney will lie.”

Id. at 245.

Ward DeWitt, Jr. represented his long-time friend, Dr. Peerman.  This blog author was privileged to have been mentored by Mr. DeWitt and to have assisted him in the case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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