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Brown v. Bushnell

Court of Appeals of Tennessee, Nashville

May 31, 2018

RAY BROWN
v.
ROBERT L. BUSHNELL

          Session March 27, 2018

          Appeal from the Circuit Court for Bedford County No. 12490 Franklin L. Russell, Judge

         This is a malicious prosecution case. The trial court found that the Appellant committed the torts of malicious prosecution and abuse of process. Appellant argues that there was no material evidence to support the trial court's inference of malice. Appellant also questions the trial court's failure to address the mandatory element of probable cause. Discerning no error, we affirm.

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

          W. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Robert L. Bushnell.

          Roger Clay Parker, Shelbyville, Tennessee, for the appellee, Ray Brown.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         Following dismissal of a federal lawsuit, in which he was a defendant, Appellee Ray Brown filed this malicious prosecution case against Appellant Robert L. Bushnell in the Circuit Court for Bedford County (the "trial court"). The underlying lawsuit was filed in the United States District Court for the Eastern District of Tennessee ("district court") by Mr. Bushnell against Appellee, individually, and d/b/a Ray's Paint and Body Shop, and multiple governmental entities that are not parties to this appeal. Messrs. Bushnell and Brown operate competing wrecker services. In his district court complaint, Mr. Bushnell alleged that Appellee violated RICO statutes, state tort law, the Sherman Antitrust Act, and the Freedom of Information Act by failing to follow certain ordinances governing the rotation of wrecker services in Shelbyville and Bedford County. The district court granted summary judgment in favor of Mr. Brown. Mr. Bushnell dismissed all of the other defendants in the litigation, but pursued an appeal of the order granting Brown's motion for summary judgment in the Sixth Circuit Court of Appeals, which upheld the district court's grant of summary judgment. Mr. Bushnell then appealed the case to the United States Supreme Court, which denied certiorari.

         Following the dismissal of the federal lawsuit, on July 20, 2012, Mr. Brown filed the instant case in the trial court. In his complaint, Mr. Brown alleged that Mr. Bushnell had engaged in malicious prosecution and abuse of process in filing the federal lawsuit. On August 23, 2012, Mr. Bushnell answered the complaint denying the material allegations. On May 2, 2017, following a trial, the trial court entered an order, sustaining Mr. Brown's claim that Mr. Bushnell committed the torts of malicious prosecution and abuse of process, and awarding Mr. Brown $47, 600.00 in damages. The trial court found in relevant part, that:

Bushnell committed the torts of malicious prosecution and abuse of process against Plaintiff Brown. The new owner of a new wrecker/auto repair company in a small town was dragged into federal trial court, to the Sixth Circuit Court of Appeals, and to the front door of the U.S. Supreme Court. The whole process was launched after only very limited and flawed investigation. The complaint contained and relied on multiple falsehoods that were the heart of the claims against Brown. Taken as a whole, the circumstantial evidence in the state court leads to only one conclusion, which is that Bushnell did not have probable cause to initiate and pursue his claim against Brown and that doing so was motivated by malice and specifically by a determination to put Brown out of the wrecker service/auto repair business in Shelbyville, Tennessee.

Mr. Bushnell appeals.

         II.Iss ...


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