§19.1 Generally

The Case: Brown v. Birman Managed Care, 42 S.W.3d 62 (Tenn. 2001).

The Basic Facts: Brown alleged that the defendant, her ex-husband's employer engaged in a conspiracy with her ex-husband to help him avoid his proper child support obligation.

The Bottom Line:

• "We have very recently discussed the common law action of conspiracy to defraud. Chenault v. Walker, 36 S.W.3d 45 (Tenn. 2001) (upholding the validity of the conspiracy theory of personal jurisdiction). This tort is defined as a 'combination between two or more persons to accomplish by concert an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means.' Id. (quotingDale v. Thomas H. Temple Co., [208 S.W.2d 344, 353 (Tenn. 1948)]); Huckeby v. Spangler, 521 S.W.2d 568, 573 (Tenn. 1975); Braswell v. Carothers, 863 S.W.2d 722, 727 (Tenn. Ct. App. 1993); Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 236 (Tenn. Ct. App. 1987). Each conspirator must have the intent to accomplish this common purpose, and each must know of the other's intent. Dale, [208 S.W.2d at 353-54]. The agreement 'need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy.' Id. Finally, 'it is [a] basic principle that each conspirator is responsible for everything done by his confederate which the execution of the common design makes probable as a consequence'; in other words, each conspirator is liable for the damage caused by the other. [Id.; 208 S.W.2d at 354]; accord Huckeby, 521 S.W.2d at 573-74." 42 S.W.3d at 67.

Other Sources of Note: Trau-Med of America, Inc. v. Allstate Insurance Co. , 71 S.W.3d 691 (Tenn. 2002) (finding the intracorporate conspiracy doctrine barred recovery for civil conspiracy given facts as alleged); Levy v. Franks, 159 S.W.3d 66, 82 (Tenn. Ct. App. 2004) (dismissal of malicious harassment claim required dismissal of civil conspiracy claim based on conspiracy to violate the malicious harassment statute because "[i]t cannot be that a conspiracy to do a thing is actionable when the thing itself would not be." (citations omitted)); Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 721 (E.D. Tenn. 2001) (civil conspiracy requires an underlying predicate tort allegedly committed pursuant to the conspiracy) (citing Tenn. Publ'g Co. v. Fitzhugh, 52 S.W.2d 157, 158 (Tenn. 1932); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994) (one cannot conspire to induce breach of its own contract).

Recent Cases: Morris v. Grusin , No. W2009-00033-COA-R3-CV, 2009 WL 4931324 (Tenn. Ct. App. Dec. 22, 2009) (upholding dismissal of conspiracy claim where appellant did not challenge on appeal that defendants' underlying actions were lawful); Sanford v. Waugh, No. M2007-02528-COA-R3-CV, 2009 WL 1910957 (Tenn. Ct. App. June 30, 2009) (reversing trial court's dismissal of civil conspiracy claim finding underlying tort was sufficiently pled); Amodeo v. Conservcare, LLC, No. W2007-02610-COA-R3-CV, 2009 WL 736656 (Tenn. Ct. App. Mar. 20, 2009) (upholding summary judgment on civil conspiracy claim finding no conspiracy occurred); Runions v. Tennessee State University, No. M2008-01574-COA-R3-CV, 2009 WL 1939816 (Tenn. Ct. App. Feb. 17, 2009) (upholding dismissal of civil conspiracy to commit battery claim where court found there was no underlying battery); Foster Business Park, LLC v. Winfree, No. M2006-2340-COA-R3-CV, 2009 WL 113242 (Tenn. Ct. App. Jan. 15, 2009) (affirming summary judgment on civil conspiracy claims where underlying torts were dismissed); O'Dell v. O'Dell, No. E2007-02619-COA-R3-CV, No. 2008 WL 3875434 (Tenn. Ct. App. Aug. 21, 2008) (upholding dismissal of claim for conspiracy finding none of acts complained of constitute either an unlawful purpose or unlawful means); Watson's Carpet and Floor Coverings, Inc. v. McCormick, 247 S.W.3d 169 (Tenn. Ct. App. 2007) (holding there could be no liability for conspiracy on part of competing supplier to interfere with supplier's relationship with customer where manufacturer's refusal to sell a specific brand of carpet to supplier was privileged and therefore not tortious; there can be no conspiracy to do what the manufacturer was legally entitled to do).