                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                          April 26, 2012 Session

                      IN RE ESTATE OF ROBERT BEAZLEY, JR.

                     Appeal from the Circuit Court for Davidson County
                       No. 05P399    David Randall Kennedy, Judge


                     No. M2011-01914-COA-R3-CV - Filed July 24, 2012


This case concerns a dispute over attorney’s fees. Attorney, who was hired to represent a
client in connection with the probate of her uncle’s estate, sued his former client and the
beneficiaries of the estate under theories of civil conspiracy and inducement of breach of
contract. Court found in favor of attorney and held the attorney was entitled to $20,000 in
damages. The court trebled the damages in accordance with Tenn. Code Ann. § 47-50-109.
Finding that the evidence preponderates against the trial court’s holding regarding
inducement of breach of contract, we reverse the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT, J.,
and B EN H. C ANTRELL, S P. J., joined.

William Bruce Bradley, Brentwood, Tennessee, for the Appellants, Richard Vernon Beazley
and Linda Ann Anderson.

Robert John Notestine, III, Nashville, Tennessee, for the Appellee, Dennis C. Wright.

                                   MEMORANDUM OPINION 1




       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
                                       F ACTUAL B ACKGROUND

       On March 10, 2005, Linda Beazley Anderson (“Ms. Anderson”), niece of Robert L.
Beazley (“Decedent”), hired attorney Dennis Wright to represent her in connection with the
probate of the estate of her uncle, who died on March 2, 2005. Mr. Wright and Ms.
Anderson entered into a contract for attorney’s fees which stated, in relevant part: “Client
agrees to pay attorney fee of forty percent (40%) of the first $200,000.00 and twenty-five
percent (25%) of the recovery, whether by trial or settlement.”

       At the time of his death, the Decedent owned, among other things, real property and
several annuities with a cash value in excess of $500,000. Mr. Wright filed a petition to
probate the Decedent’s will, and Richard V. Beazley (“Richard”), Ms. Anderson’s father and
Decedent’s brother, filed a competing petition to probate. On March 24 the Decedent’s will
was admitted to probate and John Clemons appointed Administrator, c.t.a. William Beazley
was the principal beneficiary of Decedent’s will,2 and Ms. Anderson and her husband
Timothy Anderson were listed as beneficiaries on several of Decedent’s annuities.

       In August 2005, Richard and Ms. Anderson, without the assistance of counsel,
negotiated a settlement agreement regarding the distribution of Decedent’s estate. The
handwritten agreement, signed by Mr. and Ms. Anderson stated, in relevant part as follows:
“In consideration of ten dollars and other valuable consideration we Linda Ann Anderson
and Timothy Anderson agree to drop all claims against Robert L. Beazley Jrs.’ estate and
annuities and real estate. We Linda Ann Anderson and Timothy Anderson will be
responsible for the attorneys fees for Dennis Wright.” In November 2005, Mr. Wright
entered into a second contract for attorneys fees with Mr. and Ms. Anderson.

      On February 15, 2006, Mr. Wright filed a motion requesting that he be permitted
withdraw as counsel for Ms. Anderson, stating that Ms. Anderson had “discharged him.” 3


        2
            Decedent’s Last Will and Testament stated in pertinent part, as follows:

        I, Robert L. Beazley, being of sound mind and solely responsible for my financial affairs,
        do hereby will my entire estate to my brother William D. Beazley, with the following
        exceptions:

                1. Any annuities shall be paid as directed in their respective beneficiary
        designations without challenge. . . .
        3
          Mr. Wright had filed a motion to withdraw in October 2005 on the ground that “the petitioner [Ms.
Anderson] is negotiating with the heirs at law of the decedent and he [Mr. Wright] believes that such
negotiations have been brought about by coercion.”

                                                     -2-
On March 10 he filed a motion asking the court to fix the amount of his fees; he attached to
the motion a copy of the November 2005 contract. The record does not include the order
allowing Mr. Wright to withdraw; however, on April 7 the court entered an Order awarding
Mr. Wright $27,065.00 in attorney’s fees.4

       On May 17, 2006, an “Agreed Order to Resolve the Contest of Ownership of Estate
Assets and Annuities of Robert L. Beazley, Jr.” was entered closing the estate and
distributing Decedent’s assets. The Agreed Order, which was signed by or on behalf of
Richard V. Beazley, William D. Beazley, John Clemmons, Ms. Anderson, Mr. Anderson,
Continental Insurance Company, Jackson National Life Insurance Company and Physicians
Mutual Life Insurance Company, provided, inter alia, that Mr. and Ms. Anderson would not
take as beneficiaries of the Decedent’s annuities and that they were divested of any interest
in Decedent’s real property.

                                       P ROCEDURAL H ISTORY

        Mr. Wright initiated the suit giving rise to this appeal in December 2006 against the
beneficiaries of the estate—Richard, William Beazley (the decedent’s brother), and Ms.
Anderson (collectively referred to as “the Defendants”). On February 12, 2007, Mr. Wright
filed an Amended Complaint alleging that the Defendants “conspired to defraud” him of his
fee by preparing a false Agreed Order concealing the true amount of the settlement Ms.
Anderson was to receive from Decedent’s estate. Mr. Wright alleged that Ms. Anderson
actually received an annuity valued at approximately $80,000.

        Following a six day bench trial, the court entered judgment for Mr. Wright, finding,
in pertinent part, as follows:

       2. That this Court is clearly and totally convinced and finds that [Richard]
       knew he was interfering with the contract that his daughter, [Ms. Anderson]
       . . . held with the Plaintiff.


       4
           The Order awarding attorney’s fees stated:

       This cause came on to be heard on this 7th day of April 2006 before The Honorable Randy
       Kennedy, Judge, upon the motion filed by Dennis Wright for the court the court [sic] to fix
       the amount of his fee in this matter pursuant to the court’s Order of February 24, 2006; the
       affidavit of services rendered; statement of counsel; and the entire record n this cause; and,
       from all of which the court finds that, pursuant to his contract with Linda Anderson and the
       proof heretofore heard by the court regarding the settlement made by Linda Anderson and
       Richard Beazley and William Beazley, the court finds that the fee of Dennis Wright for
       services rendered to Linda Anderson should be in the amount of $27,065.00.

                                                    -3-
        3. That the actions of . . . [Ms. Anderson and Richard] . . . were indeed a
        conspiracy to deprive Mr. Wright of his property rights under a contract and
        fee agreement.
        4. That the acts of . . . [Ms. Anderson and Richard] . . . relative to the creation
        of a settlement agreement on August 31, 2005 was an act of civil conspiracy
        and inducement to breach the contract with the Plaintiff.
        5. That the Plaintiff, Dennis Wright is entitled to an award of damages
        pursuant to a breach of contract as provided in to [sic] T.C.A. 47-50-109 and
        according to the law of civil conspiracy.
        6. That this Court finds that the elements of procurement of breach of contract
        have been proved in this case in that (1) there was a legal contract between Mr.
        Wright and Linda Beazley Anderson (2) Defendant Richard Beazley clearly
        knew of the contract (3) Defendant Richard Beazley knew that by getting his
        daughter to sign the settlement agreement that he was cutting off fees owed to
        Mr. Wright (4) the very nature of Mr. Beazley calling the meeting to have the
        settlement agreement signed at a bank was an act of malice on his part (5) the
        contract was clearly breached (6) the actions of conspiracy were the proximate
        cause of the breach and that this Court cannot concluded [sic] otherwise (7)
        Mr. Wright testified he would have reduced his fees to $20,000.00 if Linda
        Beazley Anderson had not breached the contract with him and this Court has
        determined that damages in the amount of $20.000.00 were suffered by Mr.
        Wright, and he is entitled to recover this sum.

The court awarded damages in the amount of $20,000, which it then trebled pursuant to
Tenn. Code Ann. § 47-50-109.5 Ms. Anderson and Richard appeal.

                                               A NALYSIS

       We review the trial court’s findings of fact de novo, accompanied by a presumption
of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P.
13(d). Our review of the trial court’s determinations regarding questions of law is de novo
with no presumption of correctness. See Staples v. CBL Associates, Inc., 15 S.W.3d 83, 88
(Tenn. 2000); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).




        5
          The court dismissed the complaint as to William Beazley finding there was not sufficient evidence
to render a judgment against him.

                                                   -4-
                             I NDUCEMENT OF B REACH OF C ONTRACT

       The pivotal issue on appeal is whether the evidence preponderates against the trial
court’s holding that the elements of inducement of breach of contract were satisfied.6 In
order to prevail on a claim for inducement of breach of contract, a plaintiff must prove the
following:

        1) there must be a legal contract; 2) the wrongdoer must have knowledge of
        the existence of the contract; 3) there must be an intention to induce its breach;
        4) the wrongdoer must have acted maliciously; 5) there must be a breach of the
        contract; 6) the act complained of must be the proximate cause of the breach
        of the contract; and, 7) there must have been damages resulting from the
        breach of the contract.

Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 158 (Tenn. Ct. App. 1997).

       The instrument upon which Mr. Wright bases his claim for inducement of breach of
contract is the contract for attorney’s fees signed by Ms. Anderson and Mr. Wright on March
10, 2005.7 The agreement reads, in pertinent part, as follows:

        Client agrees to pay to attorney fee of forty percent (40%) of the first
        $200,000.00 and twenty-five percent of the recovery, whether by trial or
        settlement. The fee does not include services for an appeal, retrial or trial of
        related matters, and if such become necessary a new agreement will be
        necessary.

        The client also agrees to separately pay necessary expenses and disbursements
        as they are incurred and billed. These may include, but are not limited to, fees

        6
            Tenn. Code Ann. § 47-50-109, entitled “Inducement of breach of contract; damages” provides as
follows:

        It is unlawful for any person, by inducement, persuasion, misrepresentation, or other means,
        to induce or procure the breach or violation, refusal or failure to perform any lawful contract
        by any party thereto; and, in every case where a breach or violation of such contract is so
        procured, the person so procuring or inducing the same shall be liable in treble the amount
        of damages resulting from or incident to the breach of the contract. The party injured by
        such breach may bring suit for the breach and for such damages.
       7
          It is apparent that Mr. Wright’s suit is predicated on the March 2005 contract, rather than the
contract executed in November 2005, because he alleges that the inducement of the breach of contract
occurred in August 2005.

                                                     -5-
       for private investigators, expert witnesses, court reporters, photocopies,
       postage and long distance telephone calls which the attorney considers
       necessary for proper preparation and defense of this case.

       In the event services of the attorney are terminated or dispensed with for any
       cause other than the attorney’s inability to perform, the fee paid shall be
       deemed earned and no part returned.

The court found that Richard induced Ms. Anderson to breach the contract between she and
Mr. Wright and thereby defrauded Mr. Wright of the contingency fee provided for in the
contract. The Court determined that Mr. Wright sustained damages in the amount of
$20,000. We have reviewed the record and the evidence does not support the trial court’s
conclusion that the March 2005 contract was breached.

       The trial court summarily concluded that the contract between the parties was
breached, however the court made no findings to support its conclusion. “The essential
elements of any breach of contract claim include (1) the existence of an enforceable contract,
(2) nonperformance amounting to a breach of the contract, and (3) damages caused by the
breach of the contract.” ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26
(Tenn. Ct. App. 2005) (citing Custom Built Homes v. G.S. Hinsen Co., Inc., No. 01A01-
9511-CV-00513, 1998 WL 960287 (Tenn. Ct. App. Feb.2, 1998)). Neither party disputes
the existence of an enforceable contract; however, Ms. Anderson contends that the contract
was not breached because she never received the $80,000 annuity and was therefore not
obligated to pay Mr. Wright a contingency fee.

       While there is evidence in the record to support a finding that Ms. Anderson and
Richard discussed the possibility of Ms. Anderson receiving an $80,000 annuity, we have
laboriously reviewed the record and have found no evidence that Ms. Anderson in fact
received the annuity. For example, when testifying regarding the Decedent’s annuities,
William Beazley stated as follows:

       Q: Who they were payable to, the annuities? The annuities generally have a
       beneficiary or person payable to.
       A: Well. Based on the court ruling, they were payable to me. Based on the
       court’s decision in the probate trial, from the probate trial.
       Q: And did you agree to share that money with anybody else at any time?
       A: No, sir.
       ...
       Q: I guess back to the same line of questioning. Back in July and if you can
       think back and I know it’s tough after this time, back in July of 05, I want to

                                             -6-
            make sure that you understand my question, did you negotiate at that time to
            split the estate with Linda or with anybody else?
            A: Say that again.
            Q: Back in July of 2005, did you negotiate to split up the estate, the assets of
            the estate, with Linda or anyone else?
            A: No.

Likewise, Timothy Anderson testified8 that Richard and Ms. Anderson agreed that Ms.
Anderson would receive the $80,000 annuity, but he further testified that “nothing was ever
done with that.” Moreover, Ms. Anderson testified that she did not receive the annuity, and
there were no bank statements or other evidence suggesting otherwise. Therefore, the
evidence preponderates against the trial court’s finding that the contract was breached.9

        Finally, we consider Mr. Wright’s civil conspiracy claim. An actionable claim for
civil conspiracy requires “a combination of two or more persons who, each having the intent
and knowledge of the other's intent, accomplish by concert an unlawful purpose, or
accomplish a lawful purpose by unlawful means, which results in damage to the plaintiff.”
Trau-Med of Am., Inc. v. Allstate Ins. Co, 71 S.W.3d 691, 703 (Tenn. 2002). Upon a finding
of conspiracy, each conspirator is liable for the damages resulting from the wrongful acts of
all co-conspirators in carrying out the common scheme. Id. (citing Brown v. Birman
Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn. 2001)). However, participation in a civil
conspiracy is not, by itself, an actionable tort; rather, such a claim requires “the existence of
an underlying tort or wrongful act committed by one or more of the conspirators in
furtherance of the conspiracy.” Stanfil v. Hardney, No. M2004-02768-COA-R3-CV, 2007
WL 2827498, at *7 (Tenn. Ct. App. Sept. 27, 2007).

       Here, the underlying basis of Mr. Wright’s civil conspiracy claim is his claim for
inducement of breach of contract. Because we have previously determined that the evidence
does not support the court’s holding that the contract was breached, we hold that the claim
for civil conspiracy must fail.




            8
                Timothy Anderson was not present to testify at trial, however, his deposition testimony was read
at trial.
            9
         In addition, any damages Mr. Wright claims to have suffered as a result of the alleged breach of
the March 2005 attorney fee contract were mitigated by the April 17, 2006 court award of fees.


                                                         -7-
                              C ONCLUSION

For the foregoing reasons, the judgment of the trial court is REVERSED.




                                         ___________________________________
                                         RICHARD H. DINKINS, JUDGE




                                   -8-
