# FILED

June 2, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKS ON

GREG SWAFFORD, M.D., ) ) Plaintiff/Appella

nt, ) Shelby Law No. 54167

) vs. ) ) Appeal No. 02A01-9612-CV-00311 MEMPHIS INDIVIDUAL PRACTICE ) ASSOCIATION, SOUTHERN H EALTH ) PLAN, INC., THE APPLE PLAN, a ) Product of the Southern Health Plan, ) Inc., a Federally Qua

lified Health ) Maintenance Organization, BLUE ) CROSS AND BLUE SHIELD OF ) TENNESSEE, INC., THCC, INC., a ) Tennessee Non-Pr

ofit Corporation, ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE THE HONORABLE ROBERT L. CHILDERS, JUDGE

For the Plaintiff/Appellant : For the Defendants/Appellees Memphis Individual Practice Association and Southern Health Plan, Inc. : William J. Simmons John I. Houseal, Jr. Memphis, Tennessee William L. Bomar Leo Bearman, Jr. Sean M. Haynes Gary K. Smith Steven S. Heinrichs Memphis, Tennessee REVERSED IN PART, AFFIRMED IN PART AND REMANDED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.1 Dr. Swafford also sued Blue Cross Blue Shield of Tennessee and THCC, Inc.; these parties were voluntarily dismissed without prejudice and are not involved in this appeal.

2 Defendants assert that this April 17, 199 7, not ification gave Dr. Swafford notice that he would be terminated 90 days thereafter. Dr. Swafford maintains that he was terminated effective on April 17, 1997, without advance notice. OPINION This is a libel s uit br ought by a physician ag ainst a health maintenance organization and related health ins u rance entities. The trial court granted summary judg ment in favor of the defendants

based on the statute of limitations. The lawsuit involves allegedly false information reported to the National Practitioner Data Bank. In an issue of first impression, we hold that each diss e mination of the allegedl y defamato

ry informa

tion by the Da

ta Bank gives r

ise to a separate

cause of action. The grant of summary judgment is affirmed in par t and reversed in part, a

nd th e cause is remanded. Plaintiff/Appellant

Greg Swafford, M.D. (“Dr. Swafford”) is a licensed physician practicing family medicine in Shelby County. Defendant/Appellee Southern He alth Plan, Inc. (“Southern”) is

a federally qualified healt

h m aintenance organization operating in Tennessee. Southern hired Defendant/Appellee

Memphis Individ

ual Practice Asso

ciation (“MI

PA ”) to promote, sell, and manage an insurance product kno wn as “The Ap ple Plan.” MIPA is responsible for supervising physicians who treat Apple Plan policyholders in Tennessee. 1 Southern and MI PA may colle

ctively be referred to as “the Defendants.” In February 1990, the parties entered into a contrac t entitled “ MIP A Participating Primary Care Physician Agreement” (“Ag r eement”). The Agreement required MIPA to refe r a specified numbe r of Apple

Plan patients to Dr.

Swafford and re

quired Dr. Swaff

ord to treat the pa

tients referred to him. The Agreement stated that either party could withdraw from the Agreement upon ninety days’ notice. In early 1991, Dr. Swafford was notified that the Defendants intended to sanc tion him for substandardcare. On April 17, 1991, Dr. Swafford received a notice of termination due to alleged violations of quality of

care standards

. 2 Dr. Swafford believed that the assertion of substandard care was false, but did not object to his termination. On August 22, 1991, the Defendants reported Dr. Swafford’s termination to the Nation al Practitioner

Data Bank (“Data Bank”). The Data Bank opera tes pursuant to 42 U.S.C.A. §§ 11131, et. seq. (1995), and mainta ins a data base of

information concerning health care providers. Among3 Dr. Swafford fil ed an affidavit s

tating that he le

arned of the ret

rieval o f t he allegedly defamatory

information by

St. Francis Hospital on March 6, 1995. Dr. Swafford’s brief claims that Baptist Hospital accessed the information in July of 1992, but this assertion is not clearly supported by the record. 2 other requirements, th

e Act impose s a man date that all hea lth care entities

report adverse professional review actions to the Data Bank. Id. § 11133 . Informa tion in the Data Ba

nk is confidential and can be accessed only by health care entities. Id. § 11137(b). Dr. Swafford alleg

ed that, at the time

that the Defendants r

eported his termin

ation to the Data Bank, he was unaware of the report’s existence. In January 1992, Dr. Swafford was notified by the Data Bank that the Defenda

nts had reported t

hat his clinical pr

ivileges had be

en revoked due to vio lations of quality of care standards. Dr. Swafford was unce rtain about the specific num ber o f instances in which health ca re entit ies a ccessed his information from the Data Bank; however, at least three entities have retrieved information from the Data Bank: Baptist Ho spital, St. Francis Hospital, and the Tennessee Board of Medical Examiners. None denied clinical privileges to D r . Swafford. Nevertheless, Dr. Swafford maintains that the existence of the Data Bank report forced him to defend his record to these entities by demonstrating that the charg e of substandard care was false. The record does not clearly indicate when eac h of these health care entities retrieved information from the Data Bank or when Dr. Swafford became aware that the information had been retrieved. 3 Dr. Swafford filed

a lawsuit against the Defendants on June 1, 1993. The case was removed to federal court and the parties engaged in considerable discover y. On April 28, 1995, Dr. Swafford filed an amended complaint that appears to allege several causes of action, inc luding defamation, injury to personal property, intentional infliction of emotional distress, outrageous conduct, tortious interference

with business relations, and civil conspiracy. The federal court remanded the ca

se to state court. Both parties filed cross-motions for summary judgment. In their motion, the Defendants argued that the gravamen of

Dr. Swafford’s C

omplaint is libel and

is barred by a one-y

ear statute of limitations. The Defendants also maintained that Dr. Swafford f ailed to satisfy the elements of certain other c

laims. On June 6, 1996, the trial court entered a succ

inct order gra

nting the Defen

dants’ motion for summary judgment, without elaborating on its reasoning. From this order, Dr. Swaffo rd no w appeals.3

On appeal, Dr. Swafford asserts that the trial court erred by

granting summa

ry judgmen

t to the Defendants. Dr. Swafford argues that the trial court misapplied the one year statute of limitations for injury to per

son as opposed to the

three yea r statute for inju

ry t o property.

Dr. Swafford als

o contend s that the trial court improperly utilized the “single publication rule” for the alleged defamation, as opposed to the “multiple publication rule.” Finally, Dr. Swafford argues that the trial court erred by not

applying a three ye

ar statute of

limitations to the civil conspiracy charge, and that his claim for tortious interference with business relations should not have been dismissed. In addition to responding to Dr. Swafford’s contentions, the Defendants assert that his appeal should be dismissed due to Dr. Swaffo rd’s “fatal pro

cedural error

s.” The Defenda

nts allege that Dr. S wafford failed to comply

with Rules 4(a), 24

(a), and 24(d) o

f the Tennessee

Rules of Appella

t e Procedure. We will first address the procedural issues. The trial court granted summary judgment to the Defendants onJune 6, 1996. Dr. Swafford filed a notice of appeal on July 8, 1996. He also f il ed a post-judgment motion pursuant to Rules 59.02 and 59.04 of the Tennessee Rules of Civil

Procedure. Dr. Swafford’s post-judgment motion was denied on October 7, 1996. Under Rule 4(b) of the Tennessee Rules of Appellate Procedure, the time period for filing his notice of appeal ran from the denial of this post-judgment motion. Dr. Swafford did not file another notice of appeal after his post-judgment motion was denied . Th e Defendants

argue that Dr. Swafford’s failure to file a second notice of appeal violates Rule 4(a) of the Tennessee Rules of Appellate Procedure. Rule 4(a) of the Tenn

essee Rules of App

ellate Procedure provides that

the notice of appeal “shall be filed . . . within 30 days after the date of entry of the judgment appealed from. . . .” Ba sed

on this provision, the Defendants argue that Dr. Swafford’s appeal should be dismissed. However, Rule 4(d) of the Rul

es of Appellate Pr

ocedure provide

s: A prematu

rely filed n

otice of appeal s

hall be treated a

s filed after ent

ry of th e judgment from which the appeal is taken and on the day thereof. The Advisory Commission Comment to Rule 4(d) states that Rule 4(d):

e stab lishes the general rule that the right to appeal is not lost by filing notice of appeal before entry of the judgment appealed from. The Commission is concerned that some lawyers have misread the original draft and have failed to file a new notice of appeal when the earlier notice is of “no effe ct” because a motion disposition intervened. Believing that even a premature notice of appeal suffices to inform the adversary that

an appeal is intended, the Commission proposes deleting portions of4

subdivisions (b) and

(d) to give an early notice a n effective dat

e identical to the d

ate of entry of an order overruling a post-trial motion. Under 4(d), a prematurely filed notice of appeal may be deemed timely. See Gaskill v. Gaskill, 936 S.W.2d 626, 630 n.4 (Tenn. App. 1996). We find that Dr. Swafford’s n

otice of appeal w

as timely under Rule 4(d). R

ule 4(a) does not b

ar this appeal. D efendants

also argue that th

e appeal should be

dismissed because

Dr. Swafford vio

late d Rule 24(d) of the Tennessee Rules of Appellate Procedure by not timely filing a statement that no transcript was to

be filed, and also

violated Rule

24(a) by failing to timely file a description of the record. Rule 24 concerns the preparation and filing of the record on appeal. Although the requirements

are important, failure to comply with Rule 24 does not always warrant dismissal of the appeal: The provisions of Rule 24 regarding the designation, preparation and certification of the transcript are clear and unambiguous. A brief review of the rul e prior t o filing a notice of appeal will provide adequate instruction to careful counse

l. Nonetheless, we hold that in this case

, the dismissal of thi

s appeal was inco

nsistent with the spir

it and intent of the rules. Johnson v. Hardin , 926 S.W.2d 236, 240-241 ( Tenn. 1996 ). This issue is witho ut merit. Consequently, we shall address the substantive issues raised on appeal. A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of

material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 5 6.03. The party mov ing for summary jud

gment b ears th e burden of demonstrating that no genuine issue of material fact exists. B y rd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993). On a motion f or summary judgmen

t, the court must

take the strongest legitimate view of the evidencein favor of the nonmoving party, allowing all reasonable inferences in favor of that party, and discarding all co un tervailing evidence. Id. at 210-11. Summary judgment is only appropriate

when the facts a

nd the legal conc

lusions drawn fro

m the facts reaso

nably permit only

one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law

are involved, there is no presumption of c orrectne ss regarding a trial court's grant of summary judgment. Id. Therefore, our review of the trial court’s gra

nt of summary judgme

nt is de novo on the record before this Court. Id. The applicable statute of limitations is determined by the gravamen of the action, rather than5

the designation of the case as lying in tort or contract. Taylor v. Trans Aero Corp. , 924 S.W.2d 109, 113 (Tenn. App. 1995). W e look at th e subject matter of the lawsuit, rather than the remedial procedureused. Id. (citing Williams v. Thompson , 22 3 Tenn. 170, 172, 443 S.W.2d 447, 449 (1969)). There is little disp

ute in this case that the gravamen of Dr. Swafford’s action is libel. See, e.g., Brown v. Dunstan , 409 S.W.2d 365, 367 (Tenn. 1966); Yater v. Wachovia Bank , 861 S.W.2d 369, 372 (Tenn. App. 1993). Thetrial court properly applied the one y ear statute of limitations for “[a]ctions for libel, [and] for injuries to

the person . . . .” Tenn. Code Ann. § 28-3-104(Supp. 1997). Next we must determine whether the one-yea rstatute of limitations had expired when the plaintiff filed his lawsuit. It is undisput ed that the l awsuit was filed more than one year after Dr. Swafford learned that the allegedly defamatory information had been reported to the Data Bank. However, it appears that at least one instance in which the information was accessed may have taken place within the one-year limitations period. To resolve this issue, we must determine (1) whether the “single publication rule” sh ould apply in this case, and (2) when the limitations period commenced for e

ach claim. Under the “traditional common law approach” in libel cases, an independent cau

se of action exists for each dissemi

nation of a defam

atory state

ment. Applewhite v. Memphis State Univ. , 495 S.W.2d 190, 191, 193 (Tenn. 1973). Distributio n of multiple

copi es of libelous materials created multiple claims, “each on

e accruin g at the time of distribution.” Id. at 193. This is known as the “multiple publication rule.” Id. In response to the pr

oblems created b

y a multiplici

ty of lawsuits, the “single publication rule” developed. The single publication rule is an exception to the traditional view that each of several communications to a thi rd person by the same defame

r is a separate p

ublication. Under

this exception, “[a]ny one edition of a book or newspaper, or any one ra dio or television br oadcast, exhibition of a motion picture or simila r aggregate communication is a single publication.” Restatement (Second) of Torts § 577A(3) (1977). The comments to

the Restatement indicate that the reason for the single pu

blication rule is to avo id the “numerous su its” that may

culminate from the

publication of a “

large-scale communication.” Restatement (Sec ond) of Torts § 577A

cmt. c; see also Applewhite , 495 S.W.2d at 193-94. The Resta

tement comments st

ate that the s ingle publicatio n rule does not app

ly to6

“aggrega te publications on different occasions.” Restatement (Second) of Torts § 577A cmt. d. The Restatement explain

s: if the same

defamatory statement is published in the morning and evening editions of a newspaper, each

edition is a separate single publication and there are two causes of action. The same is true of a rebroadcast of the defamation over radio or television or a second run of a motion picture on the same evening. In these cases the publication reaches a new g roup and the repe

titi on justifi es a new cause of action. The justification for this conclusion usually offered is that in these cases the second publication is intended to and does reach a new group. Id. The single publication rule was recognized in Tennessee in Applewhite v. Memphis Sta te Univ. , 495 S.W .2d 190 (Tenn. 1973). In Applewhite , the plaintiff filed suit against the author of

a book and its publisher for allegedly libelous remarks contained in the book. The trial co urt dismissed the action, ruling that the statute of limita

tions expired prior t

o the filing of the

lawsuit. The plaintiff appealed. Id. at 191. Adopting the single publication rule, the Supreme Court held:

The single publicati

on rule is suited to th

e contemporary

publishing world where large numbers of copies of a bo ok, ne wspap er, or magaz ine ar e circ ulate d. It would substantially impair the

administration of

justice to allow separate actions on eachindividual copy

and it would crea

te the possibility

of harassment, a

nd multiple recoveries against defendants. Therefore, we hold under Te nnessee law a plaintiff should be limited to asingle cause of action based on the circulation of copies of an edition of a book, n

ewspaper, or pe

riodical. Id. at 194. Thus, for an“aggregat e communication”

such as book or new

spaper, the sing

le publication rule applies. In this case, the Data Bank is an electronic data b ase that stores information related to the quality of care of physicians. Each transmission by the Data Bank of the report on Dr. Swafford was released in response to an a

ffirmative requ

est by a hospital or

other health care entity. Information stored in the Data Bank may be accessed only by certified health care entities. The Defendants argue that, once the i nformation is stored on the Data Bank, it becomes openly accessible to the public and is akin to the “ci rc ulation of copies of an edition of a book, newspaper, or perio dical .” Applewhite , at 194. The Defendants contend that any alleged injury

occurs when the information is stored on the Data Bank. Dr. Swafford, on the other ha n d, argues that the single pu

blication rule is no

t applicable to the

se facts. He con

tends that injury

does not4 As of the filing of this opinion, no reported cas es address the sta

tuteof limitations in the context of defamation on the Internet. Undoubtedly this will be an issue in the future. See James E. Stewart & La

urieJ. Michelson, Cyberspace Defamation , 75 Mic h. B.J. 510, 512 (1996); Byron F. Marchant, On-Line on the Inte rnet: First Amendment and Intellectual Prop

erty Uncertaintie

s in the On-Line Wo

rld , 39 How. L.J. 477, 503 n.90 (1996).

5 This issue was raised in Yater v. Wachovia Bank , 861 S.W.2d 369, 372-73 (Tenn. App. 1993), but it was not necessary to resolve it in that case.

6 Enacted in

1970, the FCRA was designe d to require cre

dit reporting ag

encies to maintain “reasonable

procedures” to ensure that accurate consumer information is reported. 15 U.S.C.A. §§ 1681(b) and 1681e(a) (1 998). Under the A ct, an injuredconsumer may sue a credit reporting ag ency for failure to comply with requirements set forth in the Act. 15 U.S.C.A. § 1681o (1998). 7 occur until the information stored on the Data Bank is req uested and retri

eved by indi

vidual health care entities. Whether the single public

ation rule should be

applied to the disse

minati on of alleged defamatory

information in

the Data Bank to health care providers is an issue of first

impression in Tennessee. We found no published decisions in other states addressing this issue. Since there are no reported defamation cases on t he access of Data Bank information, we loo k to decisions with an

alogous facts.

4 Several courts have considered when the cause of actio n accrues for an action arising out of an allegedly

defamatory

statement in a cre

dit report. 5 In Hyde

v. Hibernia Nat’l Bank , 861 F.2d 446 (5th Cir. 1988), the plaintiff claimed that the defendant bank hadsubmitted to

the defendant credit reporting agency an erroneous statement that the plaintiff had failed to pay

a debt. Although

the plaintiff was

aware of the fa

lse information in h

is credit report, he took no action to re

medy the er

ror. Three y

ears later, a c

redit card comp

any rej ected the plaintiff’s application for

a credit card. Id. at 447. The plaintiff thenfiled suit for negligent violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A. §§ 1681 et. seq . 6 The FCRA includes a two-year statute of limitations which begins to run“from the date on which the liability arises.” 15 U.S.C.A. § 1681p (1998). After considering several alternatives for when “liability a

ris es,” the Fifth Circuit held that liability arises on the date on which credit was deniedto the consumer, because this is the date “on which in jury is inflicted.” Hyde , 861 F.2d at 449. Hyde states: The day the report is transmitted to a user i s usually the

date on which injur

y is inflicted, since that repor

t is used by the institut

ion as the basis for

its denial of cred

it to the consumer. Be

cause the tort is in

choate until the vi

ctim is injured, the

date upon which the erroneous informat ion is t ransmitted by the credit agency to the potential user corresponds to the date on which the limitations period for t he tor t begins.7 In support of this holding, the Court cited a law review article that drew an “ana logy to the common law rule in commercial defamation cases.” Hyde , 861 F.2d 446, 449 (citing Martha F. Davis, Solving Statuteof Limitations Problems under Fair Credit Reporting Act , 18 Ind. L. R. 507, 514 (1985)). 8 Id. 7 The Hyde Courtdiscussed whether later dissemination of the same credit report constituted a separate cause of action to which a distinct limitations period would attach. After discussing the application of the single publication rule in defamation suits, the Court stated:

We do notfind the rationale underlying the single-publication rule applicable to the Fair Credit Re

porting Act. The

major harm may

, indeed, result f

rom the first transmission of defamatory material to an institution, but the confidential nature of a credit report necessarily means that ea ch new issuance results in a distinct and separate injury. The Restatement of Torts (2d) § 577A appears to diverge f rom the single-publicationrule in its Comment on subsection (1) when it states that “each communi cation o f the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cau se of action arises.” We adopt the Restatement’s formulation and conclude that each transmission of the same credit report is a separate and distinct tort to which a sepa

rate statute of li

mitations applies. Id. at 450. Sim ila rly, in Lawhorn v. Trans Union Cre dit Info. Corp. , 515 F. Supp. 19 (E.D. Mo. 1981), the plaintiff brought a claim under the FCRA, alleging that the defendant credit reporting agenc y had repeatedly

violated the Ac t by fail

ing to ensure the accuracy of the plaintiff’s c redit report. The plaintif f claimed that the de

fendant’s violat

ions were in the na

ture of a “contin

uing violatio

n, ” resulting in the denial of credit on more than one occasion over the course of several years. Id. at 19-20. The court rejected the plaintiff’s “continuing violation” theory, holding that “liability a

rises, if at all, when defendant’s practices lead to the preparation of an erroneous or incomplete consumer report.” Id. at 20. The court interpreted the FCRA as recognizing separate violations of the Act for t h e dissemination of each report. Id. Thu s, “the date of the report would signal the beginning of the running of the statute of

limitations,” and the plaintiff was permitted to recover for violations that occurred within the two year limitations period. Id.; see also Wilson v. Po rter, Wright, Morris & Arthur , 921 F. Supp. 758, 761 (S.D. Fla. 1995) (“[T]he alleged violations of the FCRA committed by [the credit reporting agency] took place when the credit reports were issued. . . .”); Koropoulos

v. The Credit Bureau, Inc. , 734 F.2d 3 7, 39 (D.C. Cir. 1984) (holding that th e provisions of the FCRA allow a consumer

to bring suit “only

if a credit

reporting agency issues an inaccur ate report9

on the consumer, since only then does harm flow from the agenc y’s violation.”); Ralph V. Seep, Annotation, Running of Statute of Limitations in Civil Actions Under Fair Credit Reporting Act , 111 A.L.R. Fed. 647 (1993). In Schneider v. United Airlines, Inc. , 256 Cal. Rptr. 71 (Cal. App. 1989), the plaintiffs filed

a defamation lawsu

it against the de

fendants for tra

nsmitting allege

dly false in

formation to a cre

dit reportin g agency. The plaintiffs claimed that the information was transmitted with the intent tha t the credit agency would republish the information. A few months later, the plaintiffs were notified by a bank (“Bank 1”) that their applications for credit cards were rejected. Bank 1's rejections were due in part to the credit report. Several weekslater, the plainti ffs received a

copy of the

credit report. Several months after

this, the plaintiffs learned that the credit reporting agency had r epublished the information to a second bank (“Bank 2”). Ba se d in part on the credit report, Bank 2 denied the pl aintiffs’ request for cre dit. The plaintiffs ’ lawsuit was file d more than one y

ear afte r th e transmission of the credit information fr om the defendants to the credit reporting agency . The lawsuit was also filed more than one year after the transmission of the information

from the credit reporting agency to Bank 1. However, the lawsuit

was filed within one year of the transmission of the information by

the agency to Bank 2. The plaintiffs argued that the republication to Bank 2 was within the one-year statute of limitations for libel. Id. at 73. The trial court ruled that thecause of action accrued at the time the plaintiffs discovered the existence of the allegedly false credit re

port. The California Court of Appeals reversed the trial court’s rul ing. Id. at 74. Distinguishing the case from

instances in which the single publication rule was applied, the Court held that “where republication reaches a new entity or person, repetition justifies a new c ause of action.” Id. at

75. Citing the traditional co

mmon law approac

h, th e Court found that the credit reporting agency’s dissemination of the credit re port to Bank

1 and Bank 2 “constituted two separate publications,” and that the plaintiffs had two independent causes of action. Id. at 76. Consequently, the Court ruled that the plaintiffs’ action for libel for the dissemination of the information to Bank 2 was timely. Id.; but see Ferber v. Citicorp Mort., Inc. , No. 94 Civ . 3038, 1996 WL 46874, at *6 (S.D.N.Y. Feb. 6, 1996) (“[W]e find that [the de fendant’s] alleged ‘continued reporting’ was not a republication giving rise to a new cause of action.”) The facts in this case

are analogous to the facts in the above credit report decisions. Unlike the mass publication of

a book, magazine

, or television com

mercial, it

is unlikely

that more than a8 We do notaddress a situation in which the information in the Data Bank could be accessed

by the general public. 10 handful of individuals or entities would gain access to information stored in the data base. Unlike Applewhite , the information stored in the Data Bank is not within thedomain of the “contemporary publishing world.” Applewhite , 495 S.W.2d at 194. In addition, the health care entities in this case, like the entities accessing credit information, requested information from the Data Bank on separate anddis tinct o ccasions. Therefore, there is no “ aggregate publication” as contemplated in cases applying the single publication rule. While informationin the Data Bank may be accessed by

several entities, the justification for the single publication rule, a vast multiplicity of lawsuits resulting from

a mass publication, is simply not present here. Under the facts of this case, we hold

that the single publication rule is inapplica ble. 8 Therefore, a separate limitations period attaches to each publication. We mu st next c onsider the date on which Dr. Swafford’s cause of action accrued, i.e. , the date on which the limitations period began to run. The statute of limitations commences when the p laintiff has a cause of action. R.J. Reynolds Tobacco Co. v. Carson , 187 Tenn. 157, 1 72, 21 3 S.W.2d 45, 51 (1948). The cause of action a

ccrues when the

plaintiff attains t

he right to sue. Armistead

v. Clarksville-Mont

gomery Coun ty School System, 222 Tenn. 486, 490, 4 37 S.W.2d 527, 528-29 (1969). In Shell v. State , 893 S.W.2d 416, 422 (T enn. 1995), the Te

nnessee Supreme

Court held: Under

the law of Tennessee, a cause of action accrues when the plaintiff suffers in actuality a legally -cognizable

wrong and thus a

cquires a right

to bring suit for r

edress. Where, as here, it is alleged that the defendants disseminated wrongfully

untruthful information about the plaintiff, the c ause o f action accrues, and the statute of limitations begins to run, at the time such dissemination takes place. (citations omitted). In this case, the information was transmitted from the Defendants to the Data Bank o n A ugust 22, 1991. It is undisputed that Dr. Swafford had notice of this transmission in January 1992 at the latest. Dr. Swafford fil

ed his lawsuit

in June 1993. Therefore, if the limitations period began to run at the point of trans mission to the Data Bank or at the point of discovery by Dr. Swafford, Dr. Swa fford’s a ction would be time-barred, since both dates are beyond the one-y ear statute of limitations for libel. Tenn. Code Ann. § 28-3-104 (Supp. 1997). However, if the limitations period began to run on the date on which the Data Bank information was transmitted to a health care9 This issue was rais ed in Yater , supra , but resolution of that issue was not necessary. Yater , 861 S.W.2d at 372-73. 11 faci lit y, arguably, at least one claim, based on the

transmission to Ba

ptist Hospital,

wou ld b e ti mel y. No case law in Tennessee addresses application of the statute of limitations when the plaintiff had knowledge of the likelihood of publication before it occurred. 9 The Defendants contend that the statute of limitations should begin to runfrom the date in January 1992 on which Dr. Swaf ford knew t hat the allegedly defamatory information was stored withthe Data Bank. The Defendants note that Dr. Swafford was aw are of the likelih

ood that health

care pro vid ers wou ld a cces s th e rep ort . Co nse que ntl y, they maintain that he should be requi

red to bring his action within one year of the date hediscovered that the information was stored with the Data Bank. Under the Defendants’ analysis, Dr. Swafford’s Complaint was filed more than a year after the date o

f discovery

and his action is ba

rred by the

statute of limitatio

ns. In the credit report cases discussed above, the courts determined that liability arose, and the limitations period commenced, when the credit report was transmitted from the credit agency to a

user. See Hyde , 861 F.2d at 449; see also Lawhorn , 515 F.Supp. at 20; Wilson , 921 F. Supp. at 761; Koropoulos , 734 F.2d at 39. One commentator discussing the FCRA noted: Information

stored on computer softwaredoes not constitute a report until someone asks for a readout, for the contents of the report will not be discovered absent some communication. Therefore, da mages do not aris

e until the report i

s communicated to a potential lender, affecting the borrower’s finances, reputation, or peace of mind. Martha F. Davis, Solving Statute of Lim itations Problems Un

der Fair Credit

Reporting Act , 18 Ind. L.Rev. 507, 514 (1985). However, most

of the credit report cases involve situations in which the plaintiff discovered the existence of the r

eport after

the report was dis seminated to various businesse

s. For instance, in Wilson v. Retail Credit Co. , 438 F.2d 1043 (5th Cir. 1 971), the p laintiff allege d that a credit reporting agency had released a libelous cre dit report about the plaintiff

to several businesses. The plaintiff discovered the e

xistence of the re

port af t er it was released. Id. at 1045. Applying Mississippi law, the Court held that the cause of action accrued, “when the report was received by defendant’s customer, and no t when pl aintiff discovered its existence.” Id; cf. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. , 334 N.E.2d 160, 164 (Ill. 1975)12

(holding that statute of limitations begins to run when the plaintiff knew or should have known of the report’s existe

nce); Kelley v. Rinkle , 532 S.W.2d 947, 949 (Tex. 1976) (same). In Hyde , supra , the plaintiff was aware of the erroneous credit report three years before he

was denied credit based on t he r eport. He filed suit for negligence under the FCRA. The Hyde Courtheld that the limitations period for the cause of action in tort began to run when the erroneous information was transmitted from the credit agency to the potential user. The Court obse rved: The failure of the consumer to mitigate his damages by filin g suit when he is f

irst injured, thus permitting a more widespread circulation of the credit information, should have a “bearing [only] on the [calculation of] damages.” Id. at 450 (quoting Prosser & Keaton on the Law of Torts §113, at 800 (5th ed. 1984)). In Schneider , supra , the pl aintiffs knew of the erroneous credit report at the time the defendants

filed the report w

ith the credit rep

orting agenc

y. As in this ca

se, th e defendants contended

that the statute of

limitations should

begin to run from the date the plaintiff knew of the report. The SchneiderCourt held: If a plaintiff is awar

e of the facts g

iving rise to

a cause of action which accrued before the cause of action o

n which he is suing

based on the same

defamatory matter as

his earlier cause of action but based on a separate publication, the statute of limitations on the later cause of action does not run from the time of accrual of the

first cause of action. Therefore, the

fact that [plainti

ffs] had knowledge that defamatory information was publishedby respondents when they supplied the credit information to [the credit reporting agency] d oes not preclude

the application of

the rule that a party has a ca use of action for libel each time the defamatory matter is published, even i f th e originator of the defamatory matter did not republish the defama tory matter, as long as republication sho uld have b een reasonably foreseeable by the originator. Schneider , 256 Cal. Rptr. at 75. In this case, we need not

determine whether a cause of action for libel arose at the point of transmission of the information to the Data Bank or at the point of discovery by Dr. Swafford. As noted above, both dates are beyond the one-year statute of limitatio

ns. However, since we hold that the single publication rule is inapplicable and a s eparate limitations period attaches to each publication, we must determine when the limitations period commenced for each claim arising out of a publication that occurred within one year prior to the filing of the c omplaint. As in Schneider , Dr. Swaffo rd had knowl edge of the allegedly defamatory information before it was published to hea lth care entities. Both Dr . Swafford and the

Defendants coul

d reasonably

forese e that such publication would occur. However, as in Schneider , Dr. Swafford’s prior knowledge of the defamatory information “does not prec lude the application of the ru le that10 It should be noted that this Court recently addressed a situation in which the plaintiff had no prior knowledge of

the potential for libel and the plaintiff discovered the libel at a date later than the point of dissemination. See Leedom v. Bell , No. 03A01-9704-CV-00136, 1997 WL 671918, at *7 (Tenn. App. Oct. 29, 1997) (adopting the Mississippi Supreme Court’s holding that the st atute of limitations should ru

n from the point of d

iscovery “

in that limited clas s of libel cases which, because of the secretive or inh

erently und

iscoverable nat

ure of the publica

tion the plaintiff d

id not know, or with reasonable diligence could not have discovered, that he had been defamed.” (quoting Staheli v. Smith , 548 So.2d 1299, 1303 (Miss. 1989))). 13 a party has a cause of action for libel each time the defa matory matter is published,” Schneider , supra , at 75, so long as the publication is “reasonably foreseeable.” A separ ate claim arises out of eachpublication, and a separate injury occurred with each publica tion. For each claim, “the

statute of limitations begins to run at the time such dissemination takes place.” Shell , 893 S.W.2d at 422. See also Wilson v. Por

ter, Wr ight , 921 F. Supp. at 761 ( “The alleged v

iolations of the FCR

A committed by [the cred

it reporting agency] took place when the cr edit reports were issued . . .”). Therefore, we hold that the limitations period for each claim c ommenced on the da

te on which the potential user received the information from the Data Bank. The record does not c

learly indicate when the Data Bank transmitted the information to users such as Baptist Hospital a nd St. Francis

Hospital. This must be determined on remand. The grant of summary judg

ment to the Defend

ants must b e reversed as to claims arisin g out of instance

s in which the Data

Bank transmitted

information to a potential user within one year prior to the filing of Dr. Swaffor d’s lawsui t. This ho lding is pre dicated on Dr. Swafford’s prior knowledge of the existence of the information in the Data Bank. 10 Dr. Swafford also contends on appeal that the trial court erred in a pplying the

one-year statute of limitations to his cla

imof civil conspiracy. Dr. Swafford’s Amended Complaint alleges that the Defendants

have continued to

conspire to destroy

his reputa tion, dama ge his emoti onal well-b eing, ruin his practice and deprive him of revenue. He argues that civil conspiracy is an intentional tort andis governed by

the three-y

ear statute of limitations set forth in Tennessee Code Annotated § 28- 3-105 (Supp. 1997). In support of his argument, Dr. Swaff o rd cites Budget Rent-A-Car of Knoxvill e, Inc. v. Car Services, Inc. , 469 S.W.2d 360, 362, 225 Tenn. 342, 348 (1971). The BudgetCourt states: Conspiracy

is a tort and is subject to the running of the statute of three years. The period of limitations begins to run from the time of the last overt act . . . . Id. Dr. Swafford maintains that the alleged conspiracy is a “continuing” conspiracy. He arg ues that14

eachcommunication by the Defendants to the Data Bank “concer ning Swafford without advising him of such communication constitutes a separate overt act (by omission), and . . .insofar a s [the Data Bank] acts in effect as the agent of MIPA in republishing its misinformation, eac h and every publica tion and republication by [the Data Bank] to hospitals, health boards, and other concerned agencies and persons constitute a continuing and unknown number of additional overt conspiratorial acts.” “[A] civil conspiracy. . .is neither a punishable offense standing alone nor a wrong capab

le of supporting a ca

use of action by

its own weight.” Wyatt v. Union Mortgage Co. , 598 P.2d 45, 53 (Cal. 1979). Consequently, the procedural law applicable to the gravamen of the complaint applies to the civil conspiracy claim. See Taylor v. Trans Aero Corp. , 924 S.W.2d 109, 113 (Tenn. App. 1995); see also Wyatt

, 598 P.2d at 53, n.4 (“it is precisely because civil conspiracy is not a tort or

a cause of action

itself that the tolling of the statute of limitatio ns on the underly

ing torts in this ca

se becomes relevant at all.” ). For examp

le, in Br aswell v. Carothers , 863 S.W.2d 722, 725 (Tenn. App. 1993), the Court held: The statute of limitations for personal injury claims is one year. T.C.A. § 28-3-104. Thi s in clu des pers ona l in jur ies res ult ing f rom the tor t of civ il c ons pir acy. (citing Harvest Corp. v. Ernst & Whinney , 610 S.W.2d 727, 729-30 (Tenn. App. 1980)). As noted above, the gravamen o

f Dr. Swafford’ s action is libel. Th erefore, his cl

aim o f civil conspiracy to libel is governed by the one ye ar statute of limitations. Tenn. Code Ann. § 28-3-104. We must next determine w hen the one-y

ear limitatio

ns period commenced as to Dr. Swafford’s claim of c ivil con spiracy. Ca se law indicates t

hat the limitations pe

riod for a civil conspiracy

claim commences with the last overt act committed by the co-conspirators in furtherance of t he co nsp ira cy: A civil action for injury lies for a con spi racy only from the time that an overt act causing such damage has been created or enacted. As an ordinary proposition there is no civil liability for conspiracy until an overt act has be en committed. W

her e there is a continuing conspiracy , or where acts continue to show a c onspiracy, the statute of limitatio ns commences to run from the las t overt act and not fro

m the first . . . . It is not when the result or t he suffering is continue

d--not when t

h e suffering is done, but when the act is done which ca uses t he suffering. It is the overt act causin

g the conspirac

y that cause

s the damages a

nd it is from thisact that11 In Emerson , cited by Dr. Swafford, the Court applied a one year statute of limitations for the conspiracy claim. Emerson , 431 S.W.2d at 286. 15 the statute be gins to run and not from the suffering or the hurting as a result of the act. Emerson v. Mac hamer , 431 S.W.2d at 283, 286 (Tenn. 1968) (ci

tations omitted) (e

mphasis added); 11 see also Budget , 469 S.W.2d at 362, 225 Tenn. at 348. An overt act is “an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object [of the conspirac

y].” 15A C.J.S.

Conspiracy §5, p. 607. Although Dr. Swafford alleges that the Data Bank acted “in effect as the agent of MIPA,” the complaint does not allege that the Data Bank is an alleged co-conspirator. The refore, the last overt act committed by the co-conspirator

s in this case

is the Defendants’ transmissionof information to the Data Bank, not the Data Bank’s dissemination of the information to third parties. The date of the last transmission of information to the Data Bank is unclear from the record and must be determined on remand. The Defendants cont

end that Dr. Swaf

ford fails to state a claim for civil conspiracy to libel because he can prove no damages. It is undisputed t ha t Dr. Swafford was not denied clinical privileges by any of the health car e entities that accessed the informatio n from the Data Bank. Con seq uen tly, he can point to no tangible economic damages. However, Dr. Swafford alleges that his reputation was damag ed and th at he has been fo rced to spend nume

rous hours defen

ding his record. In Braswell

the Court held that “[d]amages for mental suffe ring are reco

verable in an action for civil conspiracy.” Braswell, 863 S.W.2d at 727. This issue is without merit. Fin all y, the Defendants conten d that Dr . Swafford’s cla im of tortious interf

erence with business relations was properly dismissed since Dr. Swafford failed to demonstrate an

y economic harm. As noted ab ove, Dr. Swafford concedes that his clinical privileges were not denied by an entity that accessed the information from the Data Bank. The elements necessary to establ ish a prima facie claim for tortious interference with a business relationship are set out in New Life Corp. of Am. v. Thomas Nelson, Inc. , 932 S.W.2d 921, 927 (Tenn. App. 19

96). The element

s include:

. . . the existence o f a v alid business relationship (not necessarily evidenced by an enforceable

contract) or

expectancy; k nowledge of the relationship or expectancy on the part of interfer

er; an intentiona

l interference

inducin g or caus ing a breach or termination of the relationship or expectancy; and resultantdamage to the pa rty whose relationship or expectancy has been disrupted.16

Id. (quoting 45 Am. Jur. 2d Interference 50 (1969)); see also Collins v. Greene County Bank , 916 S.W. 2d 941, 947 n.3 (Ten n. App. 1995). I

n this case, Dr. Sw

afford failed to

demonstrate any breach

or ter min ati on o f a bu sin ess rel ati ons hip or ex pect ancy. He failed to establish a necessary element of this claim, and therefore the trial court correctly gr anted summary judgment to the Defendants on this issue. In sum, we hold

that Dr. Swaffor

d’s failure to re

-file his notice of appea

l and his failure to file a statement that no transcript was to be filed do not warrant dismissal of this app

eal. We hold that the gravamen

of Dr. Swafford’s comp

laint is libel and tha

t the one-ye

ar statute of limita

tions is applicable. We find that the “single publication rule” is not applicable under the facts of this case, andthat each dissemination of the allegedly defamatory re port gives rise to a separate cause of action. Any claim that may have arisen a t the point of transmissio

n of the informatio

n to the Data Bank or at the point of discovery is time-barred. As to claims arising after discovery, the limitations periodfor each cause

of action commenc

ed on the date of d

issemination of the

allegedly libelo u s information, i.e ., the dates on which potential us ers rec eived the report from the Data Bank. The

case is remanded for a determination of the dates on which the Data Bank report wa

s transmitted to

users. To the extentthat any transmissions of the allegedly de famatory report

occurred within one year prior to the filing of Dr . Swafford’ s complaint, the grant of summary judgment to the Defendants is reversed. As to Dr. Swaffor

d’s claim of civil

conspiracy to libel, we hold that the one-ye ar statute of limitations applicable to libe l claims would also a

pply to th e conspiracy claim. The limitations period for the claim of civil conspiracy commenced on the date of the last overt act by the allege d co-conspirator

s, the Defendants.

The case is

remanded for a determination of this date as well, and the grant of summary judgment on this claim is reversed if this date is determined to be within one year prior to the filing of Dr. Swafford’s lawsuit. On Dr. Swafford’s claim of tortious interference withbusiness relation

s, the grant of su

mmary judg

ment is affirmed beca

use Dr. Swaffor

d failed to pres ent evi den ce of the brea ch o r te rmi nat ion of a b usi nes s re lat ion shi p or exp ect ancy.17

The trial court’s order is affirmed in part, reversed in part, and remanded for furt her proceedings in accordance withthis Opinion. Costs on appeal are taxed equally to both parties, for whi ch ex ecut ion may i ssu e if nece ssa ry.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

DAVID R. FARMER, J.