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Moffitt v. McPeake

Court of Appeals of Tennessee, Jackson

October 10, 2017

JOHNNY MOFFITT
v.
ORBIN MCPEAKE ET AL.

          Session September 19, 2017

         Appeal from the Circuit Court for Henderson County No. 15076-1 Roy B. Morgan, Jr., Judge

         A man convicted of aggravated assault filed suit for malicious prosecution against the other three persons involved in the altercation that led to his conviction. The trial court determined that the statute of limitations had run on the malicious prosecution claim. We affirm on a different ground: the plaintiff has no claim for malicious prosecution because the aggravated assault case has not been terminated in his favor.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          John N. Moffitt, Lexington, Tennessee, Pro Se.

          Floyd S. Flippin and Terri Smith Crider, Humboldt, Tennessee, for the appellees, Orbin McPeake and Steven Roy Phelps.

          Paul Allen England, Decaturville, Tennessee, for the appellee, William Mac Patterson.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          MEMORANDUM OPINION[1]

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         On May 16, 2013, Johnny Moffitt was arrested and charged with aggravated assault after a disagreement with Orbin McPeake, Steven Roy Phelps, and William Mac Patterson regarding a boundary line fence. Moffitt was convicted of aggravated assault on July 31, 2014, and received a four-year sentence.

         On July 27, 2015, Moffitt filed this civil action against McPeake, Phelps, and Patterson alleging that they conspired to have him illegally arrested, maliciously prosecuted, and unlawfully incarcerated. In October 2015, McPeake and Phelps moved to dismiss the lawsuit pursuant to Tenn. R. Civ. P. 12.02(6) on the basis that the one-year statute of limitations expired before Moffitt filed suit. In an order entered on July 15, 2016, the trial court held that the statute of limitations began to run on May 16, 2013, the date of Moffitt's arrest, and that, therefore, the statute of limitations had expired when Moffitt filed his civil claim on July 27, 2015. The court granted McPeake and Phelps's motion to dismiss.

         The claims against Patterson remained unresolved and, when Patterson failed to appear in court on Moffitt's motion for a default judgment, the trial court entered a default judgment against Patterson on November 8, 2016. On December 16, 2016, Patterson filed a motion seeking to set aside the default judgment and, on March 2, 2017, he filed a motion to dismiss. The trial court entered an order setting aside the default judgment on March 8, 2017. On April 24, 2017, the trial court granted Patterson's motion to dismiss Moffitt's claims against him based upon the same reasoning it applied with respect to the other two defendants. Moffitt appeals.

         The only issue presented on appeal is whether the trial court erred in dismissing Moffitt's tort suit ...


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