Civil liability for malicious continuation of prosecution can be based on a defendant “procur[ing] the continuation of a criminal prosecution by knowingly feeding the prosecutor false or misleading information[.]”
In Cole v. Skin RN Aesthetics, LLC, No. M2022-01555-COA-R3-CV (Tenn. Ct. App. July 22, 2024), plaintiff worked at defendant med spa. The med spa owner, Ms. Taylor, alleged that items disappeared after plaintiff began working. One day, Ms. Taylor noticed that two vials of botox were missing, so she checked plaintiff’s purse. The purse contained the two vials of Botox plus wipes, syringes, and saline. The purse also held a loaded handgun.
Ms. Taylor called the police, and plaintiff was arrested and changed with theft. At her criminal trial, plaintiff was acquitted.
Plaintiff then filed this malicious prosecution action. Plaintiff asserted that the staff had discussed offering offsite Botox parties, and that she intended to ask for permission to administer such a party before leaving work on the day she was arrested. She also stated that she had a permit for the handgun. Plaintiff explained that other items found in her purse and car were free product samples from an employee giftbag, which was confirmed by another employee. Some items in her car were also left over from her previous business. Further, on the day of her arrest, Ms. Taylor had placed cash in plaintiff’s appointment room to bait her into stealing it. Ms. Taylor reported to the police that the cash was stolen, but plaintiff explained where in the room she had placed the cash for safekeeping. Ms. Taylor admitted that the cash was located in the room where plaintiff said it would be.
To support her assertion that plaintiff stole inventory, Ms. Taylor submitted a spreadsheet purporting to list stolen items. She later admitted, though, that this spreadsheet was created after the arrest and that the med spa did not have an accurate way to track inventory prior to the arrest. In the civil suit, Ms. Taylor admitted that the spreadsheet was used against plaintiff in the criminal trial, but that “she had no tangible proof that [plaintiff] had stolen the items on the list.”
The civil jury rejected the claim that Ms. Taylor initiated criminal prosecution against her without probable cause, but it found that Ms. Taylor was “liable for the malicious continuation of the prosecution.” The jury found that Ms. Taylor “took an active party in the continuation of the prosecution after learning that there was no probable cause for believing [plaintiff] was guilty of the charges.” Defendant moved for judgment notwithstanding the verdict, which the trial court denied. The Court of Appeals affirmed this ruling.
Malicious prosecution liability can be based on “the malicious continuation of a criminal proceeding.” (internal citation omitted). For this liability to attach, “the defendant must have some control over the prosecution,” and “plaintiff must show that the defendant actively participated in the criminal prosecution.” (internal citation omitted). Appearing as a witness, and even giving false testimony, is not enough to support liability. Liability can be based, however, “on proof that the defendant urged or pressured the prosecutor to proceed against his own advice or judgment.” (internal citation omitted).
Here, Ms. Taylor did not urge the prosecutor to continue, but plaintiff asserted that liability could rest on Ms. Taylor providing false information “in a blatant effort to continue the prosecution.” While giving information to police or a prosecutor is not a typical basis for liability, “courts have recognized that a private party who knowingly gives false or misleading information to the prosecutor with an improper motive may be liable for malicious prosecution.” (internal citation omitted). Applying that logic here, Ms. Taylor could be liable for procuring the continuation of the prosecution “by knowingly feeding the prosecutor false or misleading information[.]” (internal citation omitted).
Ms. Taylor gave the prosecutor a spreadsheet purporting to show stolen goods, but she admittedly had no proof that plaintiff stole those items. The jury heard different versions of what happened during the police interrogation of plaintiff, as well as testimony that there were no inventory controls at the med spa. Further, testimony supported the fact that employees had access to the med spa products purportedly stolen by plaintiff for both business and personal use. When viewing the evidence in plaintiff’s favor, there was material evidence to support the jury verdict, which was affirmed.
This is an important appellate court decision and anyone filing or defending a malicious prosecution action would be advised to carefully study this opinion, particularly Sections B and C.
The Court of Appeals released this case 10.5 months after assigning it on briefs.