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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
February 16, 2012 Session ELLIOT H. HIMMELFARB, M.D., ET AL. v. TRACY R. ALLAIN
Appeal by Permission from the Court of Appeals, Middle Section Circuit Court for Williamson County No. 07454 Robbie T. Beal, Judge

No. M2010-02401-SC-S10-CV - Filed August 28, 2012

A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suit filed a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court's denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion. Tenn. R. App. P. 10 Extraordinary Appeal by Permission; Judgment of the Court of Appeals Reversed and Case Remanded to the Circuit Court for Williamson County J ANICE M. H OLDER, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined. Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy R. Allain M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot H. Himmelfarb, M.D., Elliot H. Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

OPINION I. Facts and Procedural History In April 2005, Tracy Allain was admitted to Vanderbilt University Medical Center ("VUMC") for placement of a new port-a-cath.1 After the procedure, a VUMC physician informed Ms. Allain that he had observed a guide wire in a vein leading to Ms. Allain's heart. The physician believed that the guide wire had been left in Ms. Allain's body during a previous port-a-cath procedure performed while Ms. Allain was a patient at Williamson Medical Center in December 2004. On April 10, 2006, Ms. Allain filed a complaint in the Circuit Court for Williamson County against Williamson Medical Center, Dr. Elliot Himmelfarb, and Dr. Douglas York. Ms. Allain alleged that the hospital and Drs. Himmelfarb and York were negligent in leaving a guide wire in her vein during the December 2004 procedure. Both Dr. Himmelfarb and Dr. York filed an answer to the complaint alleging comparative fault against an unnamed party and denying liability. In June 2006, a VUMC physician informed Ms. Allain that VUMC was responsible for the presence of the guide wire. Ms. Allain filed a complaint alleging medical malpractice against VUMC on June 23, 2006, and reached a settlement in that case on January 24, 2007. On July 14, 2006, Ms. Allain filed a notice of voluntary nonsuit of the complaint against Williamson Medical Center and Drs. Himmelfarb and York pursuant to Tennessee Rule of Civil Procedure 41.01. The trial court entered an order dismissing the case without prejudice on July 17, 2006. Exactly one year later, on July 17, 2007, Dr. Himmelfarb and Dr. York filed a complaint against Ms. Allain alleging that Ms. Allain's prior lawsuit against them constituted malicious prosecution and abuse of process. Ms. Allain filed an answer to the complaint denying the allegations and subsequently filed a motion for summary judgment claiming Drs. Himmelfarb and York could not prove the essential elements of their malicious prosecution or abuse of process claims. The trial court denied Ms. Allain's motion for summary judgment. The trial court did not address the abuse of process claim but found that issues of material fact existed with respect to the malicious prosecution claim. The trial court denied Ms. Allain's motion for interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.

A port-a-cath is a medical device that is implanted beneath the skin to allow easier access to a patient's vein.

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Following the denial of that motion, Ms. Allain filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The Court of Appeals granted the Rule 10 application and affirmed the trial court's denial of the motion for summary judgment, remanding the case to the trial court for further proceedings.2 Himmelfarb v. Allain, No. M2010-02401-COA-R10-CV, 2011 WL 2410233, at *9 (Tenn. Ct. App. June 9, 2011). We granted Ms. Allain permission to appeal. II. Analysis At issue in this case is whether Ms. Allain is entitled to summary judgment because Drs. Himmelfarb and York are unable to satisfy an essential element of their malicious prosecution claim. Summary judgment is appropriate only when the moving party establishes it is entitled to judgment as a matter of law and that there are no disputed, material facts. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008); see also Tenn. R. Civ. P. 56.04. A disputed fact is material if its resolution is necessary to determine the substantive claim. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 632 (Tenn. 2009) (citing Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)). To be entitled to summary judgment, the moving party must either negate an essential element of the non-moving party's claim or produce evidence that shows that the non-moving party cannot prove an essential element at trial. Hannan, 270 S.W.3d at 5. The resolution of a summary judgment motion is a question of law, which we review de novo. Martin, 271 S.W.3d at 84. To succeed on a claim for malicious prosecution, Drs. Himmelfarb and York must prove that Ms. Allain initiated a prior suit against them without probable cause, that Ms. Allain brought the prior suit with malice, and that the prior suit was terminated in favor of Drs. Himmelfarb and York. Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992). Ms. Allain asserts that she is entitled to summary judgment because Drs. Himmelfarb and York cannot prove that Ms. Allain's prior suit was terminated in their favor.3 With respect to the last of these requirements, a judgment that terminates a lawsuit in favor of one of the parties must address the merits of the suit rather than terminating the suit on procedural or technical grounds. Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn. 2005). Ms. Allain's lawsuit against Drs. Himmelfarb and York was terminated by a voluntary

Neither the trial court nor the Court of Appeals addressed the abuse of process claim. The Court of Appeals remanded the case to the trial court to address the abuse of process claim, recognizing that the appeal was limited to the claim of malicious prosecution. Because the only issue in this case is whether the prior suit was terminated in favor of Drs. Himmelfarb and York, we are not required to address the manner in which probable cause determinations are currently made in malicious prosecution proceedings in Tennessee.
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nonsuit without prejudice. We must therefore determine whether a voluntary nonsuit is a favorable termination for purposes of a malicious prosecution claim. Because this is an issue of first impression for this Court, it is helpful to examine the approaches utilized in other jurisdictions. The majority of jurisdictions that have addressed the effect of a prior voluntary nonsuit have held that a voluntary nonsuit can be a favorable termination on the merits for the purposes of malicious prosecution. See generally 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,

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