Judge allows depositions, stays summary-judgment briefing in malicious-prosecution dispute over attorney's lien

A Montgomery County judge on the civil calendar granted depositions to proceed and stayed consideration of a pending motion for judgment on the pleadings or summary judgment in a case in which the Cordova family says attorney Robert Martin maliciously prosecuted an unethical attorney's lien.

The dispute stems from litigation over an attorney's lien that, the Cordova family alleges, was pursued without a written contingency agreement and in violation of Tennessee professional-conduct rules. Plaintiff counsel argued the lien was pursued for roughly six years, terminated in the family's favor and therefore supports a malicious-prosecution claim; defense counsel asked to depose the plaintiff before the court decides liability or damages.

The judge said, "So I'm going to simply stay the argument of the motion for summary judgment and allow the discovery depositions to take place," and added the court will consider a separately filed protective-order request from the plaintiff before finalizing deposition procedures.

Why this matters: The court's decision preserves both sides' access to discovery while pausing disposition on dispositive motions, making it more likely the judge or a jury will receive witness testimony before any final ruling on liability. The order also makes clear the court recognizes that inferences of malice can be rebutted and that additional discovery may be needed to resolve factual disputes.

Key facts and positions - Plaintiff's counsel told the court the "undisputed facts in this case demonstrate that defendant attorney Robert Martin maliciously prosecuted an unethical attorney's lien" and cited Tennessee decisions and procedural rules in support of judgment on the pleadings or summary judgment. Plaintiff argued malice was inferable from continued pursuit of the lien and the lack of a valid written contract or written client consent to any fee-splitting arrangement. - Defense counsel, Mr. Olson, said that depositions of the plaintiff are needed because "the only problem ... is she suffered no damages. None," and that funds at issue had been distributed through a guardian ad litem and prior proceedings. - The judge noted that discovery is generally favored and that inferred malice can be rebutted; the court therefore ordered depositions while staying the dispositive motion and said it would issue a written ruling on the plaintiff's protective-order request in the next few days.

Court directions and next steps - The court stayed the hearing on the dispositive motion and authorized depositions to proceed. - The court will issue a written order addressing the plaintiff's pending request for a protective order that could limit the scope of questioning at deposition; counsel was invited to submit a proposed order reflecting that depositions are allowed subject to a later protective-order decision.

Background from the record - Counsel for the plaintiff said the attorney's lien was dismissed on Jan. 14, 2020, and that a subsequent separate lawsuit by the defendant was filed in 2022; plaintiff counsel framed the earlier dismissal and the abandonment of appeal as establishing the termination-in-favor element of malicious-prosecution claims. - Counsel cited deposition admissions by the defendant in which the defendant allegedly acknowledged conduct inconsistent with the ethical rules governing contingency agreements and fee-splitting. The parties disagree about whether the plaintiff suffered compensable damages and about whether discovery into the plaintiff's losses is necessary before ruling on liability.

Ending: The judge's stay preserves the parties' ability to take depositions and ordered a forthcoming written decision on the plaintiff's protective-order motion. If the court later finds liability, the judge said depositions of the plaintiff on damages would be appropriate under a protective order.