                    IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT NASHVILLE
                 ______________________________________________

THE JUDDS, a Tennessee partnership,
NAOMI JUDD, both individually and
on behalf of PRO TOURS, INC., a
Tennessee corporation, and WYNONNA
                                                                     FILED
JUDD, both individually and on behalf                               September 24, 1997
of PRO TOURS, INC, a Tennessee
corporation,                                                        Cecil W. Crowson
                                                                   Appellate Court Clerk
       Plaintiffs-Appellants,
                                                     Davidson Circuit No. 94C-2578
Vs.                                                  CA. No. 01A01-9701-CV-00030

STEVEN D. PRITCHARD, an individual
and PRO TOURS, INC., a Tennessee
corporation,

      Defendants-Appellees.
____________________________________________________________________________

          FROM THE SECOND CIRCUIT COURT FOR DAVIDSON COUNTY
               THE HONORABLE MARIETTA M. SHIPLEY, JUDGE


                 Jay S. Bowen, John R. Jacobson, and Gregory S. Reynolds
                   Bowen, Riley, Warnock & Jacobson, PLC of Nashville
                                     For Appellants

                           Samuel D. Lipshie and Scott K. Haynes
                    Boult, cumming, Conners & Berry, PLC of Nashville
                                  For Appellee, Pritchard



                                REVERSED AND REMANDED

                                        Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

DAVID R. FARMER, JUDGE

SAM L. LEWIS, JUDGE
     This appeal involves the personal liability of a corporate officer. Plaintiffs, the Judds,

a Tennessee partnership; Naomi Judd, individually and on behalf of Pro Tours, Inc.; and
Wynonna Judd, individually and on behalf of Pro Tours, Inc.,1 appeal from the judgment of the

trial court granting summary judgment to defendant, Steven D. Pritchard.

        The Judds performed together as a country music duo. From 1987 to 1994, Pro Tours

served as their exclusive booking agent and principal promoter of their concerts.2 Pritchard,

Kenneth Stilts, and the Partnership each owned one-third of the stock of Pro Tours. Pritchard

was the president of Pro Tours, and Pritchard and Stilts made up the board of directors. Stilts

also served as personal manager for Naomi and Wynonna Judd.

        Pro Tours arranged concerts for the Judds and negotiated their compensation. Generally,

the Judds were compensated for performances promoted by Pro Tours solely on the basis of a

percentage of gross receipts, less certain approved expenses, with no guaranteed payment. Pro

Tours received fees and merchandising revenue for the Judds. Pro Tours also received corporate

sponsorship fees for some of the Judds’ concert appearances.

        On August 9, 1994, the plaintiffs filed a complaint against Pritchard and Pro Tours

alleging fraud, breach of fiduciary duty, breach of contract, unjust enrichment, and conversion,

both against Pritchard individually and as a shareholder derivative suit on behalf of Pro Tours.3

The complaint alleges that the plaintiffs were advised that Pro Tours was formed to maximize

their profits from their concerts and that, instead, Pro Tours was intentionally managed and

operated to maximize its own profits at the direct expense and detriment of the plaintiffs. The

complaint alleges that Pritchard and Pro Tours owed the plaintiffs fiduciary duties, including a

duty of loyalty and a duty to act solely in the plaintiffs’ best interest. The plaintiffs allege that

Pritchard and Pro Tours misrepresented the amount of income and expenses from the Judds’

concert performances. The complaint also alleges that Pritchard and Pro Tours affirmatively

concealed certain income from the plaintiffs, that Pritchard misused his position with Pro Tours

to gain unfair personal benefits, and that Pritchard wasted corporate assets.



       1
          Naomi and Wynonna Judd performed as a duo and will be referred to as The Judds.
They operated as a partnership, which will be referred to as the Partnership. When it is
necessary to consider the Judds and the Partnership together, they will be referred to as the
plaintiffs.
        2
          In the early 1990s, Wynonna Judd embarked on a solo career. Pro Tours and
Pritchard worked for Wynonna Judd on these tours also.
        3
          The complaint also requested an attachment of certain deposits to preserve and
protect those funds.

                                                 2
        On November 15, 1994, both Pro Tours and Pritchard filed answers denying the material

allegations of the complaint. Pro Tours and Pritchard admit that the plaintiffs are entitled to

certain deposits, but assert that some of the amounts due to the plaintiffs are subject to valid set-

offs. Both answers raise other defenses to the complaint. In its answer, Pro Tours asserts a

counter-claim against the plaintiffs alleging breach of contract, unjust enrichment, procurement

of breach of contract, inducement of breach of contract, and breach of certain fiduciary

obligations. Pritchard also filed a counter-claim alleging that the plaintiffs defamed him by

publishing the untrue allegations in their complaint. On January 9, 1995, the plaintiffs filed an

answer to Pritchard’s counter-claim that denies his material allegations. On January 17, 1995,

the plaintiffs filed an answer to Pro Tour’s counter-claim that also denies those material

allegations.

        On October 26, 1995, Pritchard filed a motion for summary judgment. In his motion,

Pritchard asserts that Stilts, the Judds’ personal manager, was acting as the plaintiffs’ agent with

regard to all transactions involving Pro Tours, that his knowledge should be imputed to the

plaintiffs, and that the plaintiffs should be estopped from asserting any claims related to the acts

that Stilts ratified. Pritchard further asserts that the breach of fiduciary duty claim is barred by

the applicable statute of limitations. Pritchard also asserts that he is not personally liable for any

claims that the plaintiffs may have as a result of Pro Tours accepting corporate sponsorship fees

for the Judds’ concert appearances.

        At the January 5, 1996 hearing on the motion for summary judgment, the plaintiffs raised

three issues: 1) excessive bonuses paid to Pritchard by Pro Tours; 2) excessive compensation

paid to Pritchard by Pro Tours; and 3) retention of corporate sponsorship fees by Pro Tours or

Pritchard individually. On January 29, 1996, the trial court granted partial summary judgment

in favor of Pritchard on the first two issues, both of which concerned the plaintiffs’ claims in

their capacities as shareholders of Pro Tours. The trial court found that Stilts was the Judds’

agent, that his knowledge was imputed to them, and that the plaintiffs’ claims as shareholders

were therefore time-barred by the statute of limitation contained in T.C.A. § 48-18-601 (1995).

The trial court took under advisement Pritchard’s personal liability on the third issue.         On

May 21, 1996, the trial court granted summary judgment in favor of Pritchard on the third issue,

holding that Pritchard could not be held individually liable for acts committed as president of Pro


                                                  3
Tours. The trial court found that Pritchard did not act outside the scope of his duties and did not

personally convert the plaintiffs’ property. On October 23, 1996, the trial court entered an order

pursuant to Tenn. R. Civ. P. 54.02 that made the summary judgment a final judgment.4

       The plaintiffs appeal the judgment of the trial court and present one issue for review:

whether the trial court erred in holding that Pritchard could not be held personally liable for

fraud, conversion, or breach of fiduciary duty simply because he was acting as an officer of a

corporation when he committed the wrongful acts.5

       A trial court should grant a motion for summary judgment only if the movant

demonstrates that there are no genuine issues of material fact and that the moving party is

entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving

for summary judgment bears the burden of demonstrating that no genuine issue of material fact

exists. Byrd, 847 S.W.2d at 210. On a motion for summary judgment, the court must consider

the motion in the same manner as a motion for directed verdict made at the close of the

plaintiff’s proof; that is, “the court must take the strongest legitimate view of the evidence in

favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard

all countervailing evidence.” Id. at 210-11. In Byrd, the Tennessee Supreme Court stated:

               Once it is shown by the moving party that there is no genuine
               issue of material fact, the nonmoving party must then
               demonstrate, by affidavits or discovery materials, that there is a
               genuine, material fact dispute to warrant a trial. In this regard,
               Rule 56.05 provides that the nonmoving party cannot simply rely
               upon his pleadings but must set forth specific facts showing that
               there is a genuine issue of material fact for trial.

Id. at 211 (emphasis in original) (citations omitted). Where a genuine dispute exists as to any

material fact or as to the conclusions to be drawn from those facts, a court must deny a motion

for summary judgment. Id. (citing Dunn, 833 S.W.2d at 80).

        The plaintiffs present four claims against Pritchard in his individual capacity: fraud,

conversion, inducing breach of Pro Tours’s fiduciary duty, and breach of his own fiduciary duty.



       4
           Although Pro Tours has been dissolved and is essentially a “shell corporation,” the
plaintiffs’ claims against Pro Tours remain active in the trial court.
       5
         The plaintiffs have not appealed the trial court’s judgment dismissing their
shareholder derivative claims.


                                                4
The plaintiffs pursued these claims as parties to a contract with the corporation, not as

shareholders. The plaintiffs argue that a corporate officer who commits or participates in tortious

conduct is personally liable for the consequences of that conduct, regardless of the liability of

the corporation.

          We agree that this is the law in Tennessee. It is settled law that an agent cannot escape

liability for tortious acts, including fraud or misrepresentation, against third persons simply

because the agent was acting within the scope of the agency or at the direction of the employer.

Brungard v. Caprice Records, Inc., 608 S.W.2d 585, 590 (Tenn. App. 1980). An officer of

director of a corporation who commits or participates in the commission of a tort is likewise

liable to third parties regardless of the liability of a corporation. Id. at 590-91.

          Ordinarily a director of a corporation is an agent of the corporation and is liable only to

the corporation. Schlater v. Haynie, 833 S.W.2d 919, 924 (Tenn. App. 1991). For a director

to become directly liable to a creditor, there must be some violation of a statutory duty, some

other conduct that establishes a privity of contract, or a tortious injury to the creditor for which

an action ex delicto will lie. Id. (citing Merriman v. Smith, 599 S.W.2d 548 (Tenn. App.

1978)).

          It is legally possible for Pritchard to be personally liable, but there must be specific facts

showing that there is a genuine issue of material fact for trial concerning Pritchard’s fraudulent

actions. The plaintiffs argue that Pritchard is personally liable for defrauding them and

converting their property because he directed and participated in a fraudulent scheme to cheat

them out of a portion of their income. The plaintiffs assert that Pritchard intentionally caused

Pro Tours to convert and conceal income received from corporate sponsorship fees, sales of

concert tickets and merchandise, and rebates of expenses from them. The plaintiffs also argue

that Pritchard paid himself enormous bonuses and arranged other personal benefits. On the other

hand, Pritchard argues that he never received any of the corporate sponsorship fees individually

and that the fees were always deposited into a Pro Tours account or used to pay expenses of the

particular concert.

          The trial court first examined the plaintiffs’ claim of conversion and found that “no

genuine issue of material fact exists from the evidence that the Plaintiffs have produced that

indicates Mr. Pritchard is liable to the Judds individually for conversion.” Before making this


                                                    5
finding, the trial court granted the plaintiffs more time “to supplement the record in this action

with any proof that defendant Pritchard himself received money that should have been paid to

plaintiffs.”

        In his deposition, Pritchard admitted that the plaintiffs did not share in some of the

corporate sponsorship fees. He stated that the fees were either deposited into a Pro Tours bank

account or were used to pay the expenses for a particular concert. Pritchard testified that he

generally told representatives of the plaintiffs when a particular concert had a corporate sponsor,

but did not always inform the plaintiffs when corporate sponsorship fees had been paid.

Pritchard also did not disclose to the plaintiffs that Pro Tours was sharing in parking revenue and

food and soda revenue. After the plaintiffs fired Pro Tours, Pritchard did not tell them about the

receipt of additional corporate sponsorship fees.

        The plaintiffs argue that the trial judge mistakenly concluded that Pritchard could not be

personally liable for conversion unless he personally benefitted from the wrongful acts. “A

conversion, in the sense of the law of trover, is the appropriation of the thing to the party’s own

use and benefit, by the exercise of dominion over it, in defiance of plaintiff’s right.” Mammoth

Cave Production Credit Ass’n v. Oldham, 569 S.W.2d 833, 836 (Tenn. App. 1977) (quoting

Barger v. Webb, 216 Tenn. 275, 391 S.W.2d 664, 665 (1965)). To be liable for conversion, the

defendant need only have an intent to exercise dominion and control over the property that is in

fact inconsistent with the plaintiff’s rights, and to do so; good faith is generally immaterial.

Mammoth Cave, 569 S.W.2d at 836.

        The trial court found that the plaintiffs did not show a genuine issue of material fact

indicating that Pritchard converted their income to his own use. The trial court stated, “[T]here

is no showing that Mr. Pritchard exercised ‘dominion and control,’ that he diverted funds for his

own use and enjoyment as president of Pro Tours.”

        We must respectfully disagree. Pritchard admits that funds due the plaintiffs were

diverted to Pro Tours at his direction. The proof established that Pritchard was paid what could

be termed excessive bonuses and other fringe benefits by Pro Tours. Pritchard was president of

the corporation, and the record indicates that for all practical purposes he controlled the

company. Under the circumstances, there could be an inference that the funds would ultimately

inure to his benefit. It is conceivable that under these facts, the fact finder could determine that


                                                 6
there was a conversion by Pritchard of the plaintiffs’ property.

       The plaintiffs also alleged a claim of fraud against Pritchard. In its order, the trial court

did not specifically address fraud. However, the trial court did state, “There is no showing that

Mr. Pritchard negligently or fraudulently misrepresented the accounts to the Plaintiffs.”

       In order to sustain a cause of action for fraudulent misrepresentation, the plaintiff must

show that: 1) the defendant made a representation of an existing or past fact; 2) the

representation was false when made; 3) the representation was in regard to a material fact; 4)

the false representation was made either knowingly or without belief in its truth or recklessly;

5) plaintiff reasonably relied on the misrepresented material fact; and 6) plaintiff suffered

damage as a result of the misrepresentation. Metropolitan Gov’t of Nashville and Davidson

County v. McKinney, 852 S.W.2d 233, 237 (Tenn. App. 1992).

       The plaintiffs argue that Pritchard intentionally supplied them with fraudulent

accountings on which they relied. They assert that this is part of the fraudulent scheme to

conceal and convert their income. The plaintiffs argue that they have adduced substantial

evidence to support their fraud claim. They rely upon Pritchard’s deposition in which he admits

that all income was not disclosed to the plaintiffs although they were led to believe that the

various accountings presented to them were complete and correct.

       Concealment or nondisclosure will give rise to a claim for fraud when the defendant has

a duty to disclose and when the matters not disclosed are material. Dobbs v. Guenther, 846

S.W.2d 270, 274 (Tenn. App. 1992). There are genuine issues of material fact as to whether

there was a negligent or fraudulent misrepresentation.

       The plaintiffs next assert that Pritchard should be held personally liable because he

caused Pro Tours to breach its fiduciary duties while Pro Tours was acting as an agent for the

Judds. Agency rests upon contract between the principal and the agent. Cline v. Plyly, 3 Tenn.

App. 292, 301 (1926). An agent is simply “[o]ne who undertakes to transact some business, or

to manage some affair, for another, by the authority and on account for the latter, and to render

an account of it.” Security Federal Sav. & Loan Ass’n of Nashville v. Riviera, Ltd., 856

S.W.2d 709, 715 (Tenn. App. 1992) (quoting Miller v. Insurance Co. of North America, 211

Tenn. 620, 625, 366 S.W.2d 909, 911 (1963)). “Agency in its broadest sense includes every

relation in which one person acts for or represents another.” Kerney v. Aetna Cas. & Surety Co.,


                                                7
648 S.W.2d 247, 252 (Tenn. App. 1982) (quoting Howard v. Haven, 198 Tenn. 572, 583, 281

S.W.2d 480, 485 (1955)). “Whether an agency has been created is to be determined by the

relations of the parties as they in fact exist under their agreements or acts. If relations exist

which will constitute agency, it will be an agency, whether the parties understood it to be or not.”

Id. at 252-53 (quoting Smith v. Tennessee Coach Co., 183 Tenn. 676, 680-81, 194 S.W.2d 867,

869 (1946)). The relation of principal and agent is a trust relation. McNeill v. Dobson-

Bainbridge Realty Co., 184 Tenn. 99, 106, 195 S.W.2d 626, 629 (1946).

        In essence, the plaintiffs are asserting that Pritchard interfered with the contractual

relationship between Pro Tours and the plaintiffs by causing a breach of fiduciary duty owed by

Pro Tours to the plaintiffs as their agent. In Forrester v. Stockstill, 869 S.W.2d 328 (Tenn.

1994), our Supreme Court, in considering an issue concerning intentional interference with

corporate employment, quoted with approval from Thomas G. Fischer, Annotation, Liability of

Corporate Director, Officer, or Employee for Tortious Interference with Corporation’s Contract

with Another, 72 A.L.R.4th 492 (1989) as follows:

                Some courts have recognized that generally a corporate director,
                officer, or employee is not liable for tortiously interfering with a
                corporate contract, because he is considered a party to the
                contract, as long as he is acting to serve the corporate interests, or
                unless his activity involves individual separate tortious acts.
                Courts have also recognized, however, that a corporate director,
                officer, or employee may be liable for tortiously interfering with
                a corporate contract if he is acting outside the scope of his
                authority, acting with malice, or acting to serve his own interests.

869 S.W.2d at 333 (quoting 72 A.L.R.4th at 501). Although Forrester dealt with a breach of an

employment contract, the authority cited by the Supreme Court makes no distinction in the type

of contract, nor do we find any. The substance of the issue is breach of a duty and not the nature

of the duty itself.

        As we have heretofore noted, there is a genuine issue as to material fact concerning

Pritchard’s actions and whether he was acting to serve his own interest by being instrumental in

the diversion of funds to Pro Tours’s accounts. Accordingly, summary judgment should not

have been granted on the plaintiffs’ action based upon Pritchard’s inducing the breach of Pro

Tours’s fiduciary duty.

        The plaintiffs also allege that Pritchard personally owed them a fiduciary duty because

he was acting as their subagent and undertook to perform Pro Tours’s obligations to them. The


                                                  8
plaintiffs cite The Prudential Botts & Assocs. v. Gupton, No. 03A01-9403-CH-00087, 1994 WL

398826 (Tenn. App. Aug. 1, 1994), for the proposition that Tennessee recognizes the concept

of subagency. In Prudential Botts, this Court found that the subagent’s actions bound the agent

and, therefore, held against the agent. Prudential Botts, 1994 WL 398826, at *6. In this case,

we believe that Pritchard’s actions as a subagent bind Pro Tours and that Pro Tours is responsible

for his actions. Pritchard’s actions as a subagent are still on behalf of and through Pro Tours, and

his actions within the apparent scope of his authority are those of the corporation. Batey, 446

S.W.2d at 694.

        Needless to say, this case presents a complicated mass of factual allegations dealing with

a somewhat unique business. The facts introduced at this stage of the proceedings present a

close question concerning genuine issues of material facts. Justice Harbison, speaking for our

Supreme Court in Evco Corporation v. Ross, 528 S.W.2d 20 (Tenn. 1975), said:

                 The summary judgment procedure was designed to provide a
                 quick, inexpensive means of concluding cases, in whole or in
                 part, upon issues as to which there is no dispute regarding the
                 material facts. Where there does exist a dispute as to facts which
                 are deemed material by the trial court, however, or where there is
                 uncertainty as to whether there may be such a dispute, the duty of
                 the trial court is clear. He is to overrule any motion for summary
                 judgment in such cases, because summary judgment proceedings
                 are not in any sense to be viewed as a substitute for a trial of
                 disputed factual issues.

Id. at 24, 25.

        The order of the trial court granting summary judgment is reversed. The case is

remanded for such further proceedings as are necessary. Costs of the appeal are assessed against

appellee.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
SAM L. LEWIS, JUDGE




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