Rights & Remedies

Court of Appeals Holds “Nolle Prosequi” Insufficient for Malicious Prosecution Claims: What Litigators (and the Public) Need to Know

Alan Rawls

Introduction

The Tennessee Court of Appeals has now squarely addressed whether a prosecutor’s entry of nolle prosequi—a formal abandonment of criminal charges—constitutes a “favorable termination” for purposes of a malicious prosecution claim. In Smith v. Dillard Tennessee Operating Ltd. Partnership,1 the court affirmed summary judgment against the plaintiff, holding that an expungement order reflecting only a nolle prosequi does not meet the heightened standard articulated by the Tennessee Supreme Court in Mynatt v. National Treasury Employees Union.2

The Facts in Smith v. Dillard

Christine Smith’s ordeal began in September 2019 when a Dillard’s loss prevention officer accused her of shoplifting over $500 worth of merchandise. She was detained in-store, arrested by Collierville police, and charged with theft. Nearly nine months later, the State entered an order of expungement stating that a nolle prosequi had been entered pursuant to Tennessee Code Annotated § 40-32-101. Smith then sued Dillard’s and its employee for malicious prosecution, among other claims. While the trial court initially found factual disputes on probable cause and malice, it ultimately granted summary judgment on the third element—favorable termination—after concluding that the nolle prosequi did not affirmatively indicate Smith’s innocence. On appeal, the Court of Appeals agreed, emphasizing that under Mynatt, courts may only consider the dismissal documents themselves and cannot engage in a fact-intensive inquiry into why the prosecutor abandoned the case.3

The Legal Landscape After Mynatt

Malicious prosecution in Tennessee has historically been a disfavored common-law tort, requiring proof that (1) the defendant initiated proceedings without probable cause, (2) acted with malice, and (3) that the proceedings terminated in the plaintiff’s favor.4 In Mynatt, the Tennessee Supreme Court imposed a “heightened barrier” for the favorable termination element, holding that a dismissal must objectively reflect on the merits and affirmatively indicate innocence.5 Subjective inquiries into prosecutorial motives are off-limits, and dismissals such as nolle prosequi—which may occur for myriad reasons unrelated to innocence—do not suffice. This approach, reaffirmed in Smith, effectively forecloses most state-law malicious prosecution claims unless the dismissal order expressly states that the charges were unfounded.

Federal law, however, takes a starkly different approach. In Thompson v. Clark, which was decided just a year before Mynatt, the U.S. Supreme Court held that a plaintiff bringing a Fourth Amendment malicious prosecution claim under 42 U.S.C. § 1983 need only show that the criminal case ended without a conviction—not that it affirmatively indicated innocence.6 This interpretation, grounded in an originalist interpretation of § 1983 by examining the common law as of 1871, makes federal law the more viable avenue for Tennessee litigants seeking redress for wrongful prosecutions.

Practical Implications and Tips for Litigators

For Tennessee practitioners, the message is clear: when advising clients on malicious prosecution claims, the path forward almost always runs through § 1983. State-law claims will rarely survive unless the dismissal order or other document in the criminal record explicitly states that the charges were unfounded or entered as an acquittal. Litigators should carefully review dismissal documents early in the case and counsel clients on the evidentiary limitations imposed by Mynatt.

  1. No. W2024-01081-COA-R3-CV, 2025 Tenn. App. LEXIS 448, at *16–17 (Tenn. Ct. App. Nov. 26, 2025). ↩︎
  2. 669 S.W.3d 741 (Tenn. 2023). ↩︎
  3. Although this was the first Tennessee appellate decision addressing a “nolle prosequi” in this context, federal courts have already applied Mynatt in similar circumstances. See Williams v. Walmart Inc., No. 2:24-cv-02824, 2025 U.S. Dist. LEXIS 175661, at *8 (W.D. Tenn. Sept. 9, 2025) (holding that the Order of Expungement did not indicate “the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”). ↩︎
  4. Id. at 746. ↩︎
  5. Id. at 753. ↩︎
  6. 596 U.S. 36, 44–47 (2022). ↩︎

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