Pagliara v. Moses

• Decision Date: 20 February 2020
• Docket Number: No. M2018-02188-COA-R3-CV,M2018-02188-COA-R3-CV
• Citation: 605 S.W.3d 619
• Parties: Timothy J. PAGLIARA v. Marlene MOSES et al.
• Court: Tennessee Court of Appeals

605 S.W.3d 619

Timothy J. PAGLIARA

v.Marlene MOSES et al.

No. M2018-02188-COA-R3-CV

Court of Appeals of Tennessee, Middle Section, AT NASHVILLE.

November 12, 2019 Session

FILED February 20, 2020

Eugene N. Bulso, Jr., and Paul J. Krog, Nashville, Tennessee, for the appellant, Timothy J. Pagliara.

Winston S. Evans, Nashville, Tennessee, for the appellees, Marlene Moses and MTR Family Law, PLLC.

D. Michael Swiney, C.J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.

D. Michael Swiney, C.J.

Timothy J. Pagliara ("Plaintiff") filed suit against Marlene Moses and MTR Family Law, PLLC (collectively, "Defendants"), alleging malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants filed a motion to dismiss, pursuant to Tennessee Rule of Civil Procedure 12.02(6), which the Trial Court granted. Plaintiff timely appealed to this Court. Discerning no reversible error, we affirm the Trial Court's dismissal of Plaintiff's claims.

Background

In August 2018, Plaintiff filed a complaint against Defendants, alleging negligent infliction of emotional distress, intentional infliction of emotional distress, civil conspiracy, and malicious prosecution. Plaintiff's complaint alleges the key facts in this case. For purposes of this appeal of a Rule 12.02(6) dismissal, we must treat those alleged facts as true. Plaintiff and his wife ("Wife") were married in July 2015.¹ Plaintiff and Wife began dating prior to January 2013. In January 2013, Wife and another man met at a hotel, "used Ecstasy and engaged in sexual relations," and videotaped their encounter.

In September 2016, the wife of the man on the video discovered the videotape. The man's wife thereafter forwarded the "full high-definition videotape" to Plaintiff via "Dropbox." She also sent him a fifteen-second "snippet" of the videotape via text message, as well as a "bondage photograph" reflecting Wife with her hands bound behind her with a neck tie. Plaintiff was on a business trip in San Diego, California when he received these images. Plaintiff forwarded the fifteen-second "snippet" and the "bondage photograph" to close friends of him and Wife, in part, "to help him understand and process these materials."

According to Plaintiff's complaint, the video and photograph caused discord in his marriage. Wife filed a complaint for divorce against Plaintiff in the Williamson County Chancery Court. Defendants represented Wife in the divorce proceedings.

After learning of the videotape, Wife sought to have criminal charges brought against the man's wife for forwarding the images to Plaintiff. Subsequently, Wife inquired with Ms. Moses whether Wife should file a police report against Plaintiff for forwarding the images to their close friends. This inquiry was made during a meeting at MTR Family Law, PLLC's office in the presence of a third party. According to Plaintiff's complaint, Wife's financial prospects were limited in the divorce proceeding due to an antenuptial agreement. Plaintiff's complaint alleges that Ms. Moses responded to Wife's inquiry that "filing criminal charges seemed to be the only way to obtain leverage over Plaintiff." After rendering this legal advice to Wife, Ms. Moses provided Wife with the name of her son-in-law, a criminal defense attorney.

When this discussion transpired, Wife and Ms. Moses "were well aware that Plaintiff is a prominent financial advisor in Middle Tennessee" and that Plaintiff's investment advisory firm was registered with the Securities Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA). Plaintiff alleged that "FINRA Rule 8312 requires registered representatives, like Plaintiff, to disclose on Form U4 prior felony and misdemeanor criminal convictions" and that Ms. Moses and Wife pursuing criminal charges to obtain leverage against Plaintiff was "outrageous."

According to the complaint, Wife thereafter contacted the Franklin Police Department to file a report regarding Plaintiff's action of forwarding the images and sought to initiate a criminal proceeding against him. Wife met with two police officers and described that she was devastated by Plaintiff's action of forwarding the images to their close friends. According to Plaintiff's complaint, Wife failed to disclose to the officers that "she had used the illegal narcotic Ecstasy just prior to making the sex tape," that the man in the video was married during "the illicit sexual encounter, that Plaintiff was himself ‘devastated’ to have received such materials, and that she was pursuing criminal charges against Plaintiff to obtain ‘leverage’ in a pending divorce action." Wife later returned to the Franklin Police Department to provide a videotaped interview. During that interview, Wife inquired of potential punishment if Plaintiff were convicted of criminal charges and stated that she hoped Plaintiff would not get probation.

In May 2017, Plaintiff also participated in a videotaped interview at the Franklin Police Department. According to Plaintiff's complaint, the police officers informed Plaintiff that he had been accused of committing the crime of "unlawful exposure" in violation of Tennessee Code Annotated § 39-17-318(a), which Plaintiff described as "Tennessee's ‘revenge porn’ statute." According to Plaintiff, that statute was not relevant to him because he was not a party to the videotape or photograph and he had not agreed to keep the images private all as required for that statute to apply. As such, Plaintiff alleged that "no probable cause existed, or could exist, to justify [Wife's] claim that Plaintiff violated Section 39-17-318(a), or any other statute known to Tennessee criminal jurisprudence." Plaintiff attached to his complaint the incident report from the Franklin Police Department, which reflected Plaintiff as the suspect and the criminal offense as "Pornography/Obscene Material," pursuant to Tennessee Code Annotated § 39-17-902.

Plaintiff alleged that he was forced to retain counsel to represent him in defending against the criminal charge. Plaintiff's counsel advised the district attorney's office of the deficiencies in the prosecution and that venue was not appropriate in Williamson County because the message containing the images had been sent by Plaintiff while in San Diego, California to friends in Nashville, Tennessee. The Franklin Police Department transferred the case to the "Domestic Violence Unit of the San Diego Police Department." Plaintiff further alleged that Wife continued to pursue criminal charges against Plaintiff and filed a police report with the San Diego Police Department. According to Plaintiff's complaint, the San Diego Police Department closed their case "but not until after Plaintiff had incurred significant legal expense and suffered severe emotional distress." Plaintiff alleged that the case was closed, at least in part, because "Plaintiff did not violate any applicable criminal law."

As a result of the foregoing alleged facts, Plaintiff asserts the following claims for relief in his complaint: (1) malicious prosecution, (2) civil conspiracy, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. Following the filing of Plaintiff's complaint, Defendants filed a motion to dismiss for failure to state a claim, pursuant to Tennessee Rule of Civil Procedure 12.02(6). Plaintiff filed his response to Defendants’ motion to dismiss, to which Defendants replied. The Trial Court heard oral arguments on Defendants’ motion to dismiss in November 2018 and took the matter under advisement. The Trial Court subsequently entered an order in December 2018 granting Defendants’ motion and dismissing Plaintiff's claims.

In its judgment, the Trial Court explained as follows:

The question now before the Court is whether the aforesaid set of facts, when taken as true, states a claim or cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution or conspiracy against the Defendants. The Court finds that it does not.

The Trial Court found that a judicial proceeding had not been initiated against Plaintiff to support a claim for malicious prosecution. According to the Trial Court, Plaintiff had not been arrested, charged, or indicted and a mere investigation was not sufficient to constitute a criminal proceeding, as Plaintiff alleged. The Trial Court further found that it was not necessary to address whether probable cause existed to support a prosecution under either Tennessee Code Annotated § 39-17-318 or § 39-17-902 because "a prior suit or judicial proceeding" had not been instituted against Plaintiff under either of those statutes.² The Trial Court, thus, determined that Plaintiff had failed to sufficiently state a claim for malicious prosecution.

Concerning Plaintiff's claim of civil conspiracy, the Trial Court found that there was no "underlying wrongful conduct" and that no criminal process ever was initiated against Plaintiff. The Trial Court emphasized that Plaintiff had admitted to the actions that were the subject of the complaint to the police department. The Trial Court found that Ms. Moses's action of providing legal advice to her client of reporting truthful allegations to police "cannot possibly be construed as either malicious prosecution or civil conspiracy." Therefore, the Trial Court found that Plaintiff had failed to sufficiently state a claim for civil conspiracy.

The Trial Court further found that the conduct alleged in Plaintiff's complaint "cannot reasonably be regarded as ‘so extreme and outrageous as to go beyond all possible bounds of decency, and to be regard[ed] as atrocious, and utterly intolerable in a civilized community.’ " Quoting Odom v. Claiborne Cty., Tennessee , 498 S.W.3d 882, 887 (Tenn. Ct. App. 2016). As such, the Trial Court found that Plaintiff's...