# FILED

September 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

BUDDY LEE ATTRACTIONS, INC., ) ) Plaintiff/Appellee, ) ) Davidson Chancery VS. ) No. 94C-2578 ) WILLIAM MORRIS AGENCY , INC. ) Appeal No. and JOSEPH E. HARRIS, ) 01A01-9804-CH-00185 ) Defendants/Appel

lants. )


## OPINION CONCURRING IN PART & DISSENTING IN PART

I concur with the cour

t’s conclusion that thi s case must be retried because the trial court erroneously gr anted a summary judgm

ent regarding the validity of Mr. Harris’s 1991 contract with B uddy L ee Attractions, Inc . However, I do not concur withthe court’s dispositio n of the election of r

emedies issue be

cause it is based on

amis taken p remise – that Tennessee recognizes both a common-law and statutory cause of action for

procurement of bre

ach of contract.

The common law recogn

ized a number of ca

uses of action for bus

in ess i njuries, including (1) unjustifiable interference with business relations, (2) intentional interference withprospective contractual rela

tions, (3) intentiona

l interference w

ith

acontractual rela

tionship, and (4)

inducement of brea

ch of contract. In the latter part of the nineteenth century, the extent to which Tennessee recognized these causes of actionwas placed in doubt w hen the Tennessee S upreme Cour t held that a Chattanooga

retail merchant w

hose clientele

included employees of

the Western & Atl antic Railroad could not re cover damages agai

nst the railroad for

threateni ng t o fire any of its employees w ho traded with

the merchant. T

he Court, in a three to two decision, reasoned that such a n action could be maint

ained only if

the railroad had committed or threatened to commi t illegal acts and tha t the railroad had not committed an illegal act because it could terminate its at-will employees at any time fo r any reason. See Payne v. We stern & Atl. R. R. Co. , 81 Tenn. 507, 523, 52 6-2 71 The Tennessee Supreme Court later overruled Payne v. Western & Atl. R.R., Co. in Hutton

v. Watters , 132 Tenn. 527, 544, 179 S.W. 134, 138 (1915).

2 See Act of Mar. 14, 1907, ch. 154, 1907 Tenn. Pub. Acts 459. - 2 - (1884). 1

In 1907, the General Assembl y created a statuto

ry cause of action f

or procurement

of a breach of contra

ct. 2 This statute, now

codified at Tenn.Code Ann. § 4 7-50-109 (1 995), does not apply to a ll common-law cau ses of action for interference with business relations, but rather to acts “to induce or procure the breach or violation, refu sal or failure to perform a ny lawful contract .” Over fifty years after

the statute’s enactment, the Tennessee Supreme Court obse rved in dicta thatthe “statute is decl

aratory of the common law except as to the amount of damages thatmay be r ecovere d against a wrongdoer.” Emmco Ins. Co. v. Beacon Mut. Indemn. Co. , 204 Tenn. 540, 551, 322 S.W.2d 226, 231 (1959). The Court’s observation

was, of course, correct becau se the common law di d recognize a cause of action in tort for pr

ocurement of

a breach of

contract and because the statutory treble damage re

medy differed fr

om the common-law punitive damage rem edy.

Later, the United States C ourt of Appeals for

the Sixth Circuit cited the Emmco decision for the propositio n that Te nnessee recognizes both a co mmon-law and statutory cause of action for pro curement of breach of co ntract. See Edwar ds v. Travelers Ins. , 563 F.2d 105, 119 (6 th Cir . 1977 ). This conclusion stretches the Emmco dicta far beyond its plain meaning, and ou

r courts could, wi

t h goo d cause, decline to follow t he Edwards case were it not for later dicta by the Tennessee Supreme Court apparently adopting the Edwardscourt’s stat ement. See Polk & Sullivan, Inc. v. United Cities Gas C o. , 783 S.W.2d 538, 542 (Ten n. 1989).

This court cannot rever

se decisions of the

T ennessee Supreme Cou rt, see Ric hardson v . Johnson , 60 Tenn. App. 129, 136, 444 S.W. 2d 708, 711 (1969), and the principle of stare decisis man dates c aution when revisiti ng issues that have alre ady be en decided. However, the Tennessee Supreme Court has held that stare decisis does not compel courts to pe rp etuate manifest error, see Summers v. Thompson , 764 S.W.2d 182, 199 ( Tenn. 1988) (Drowota, J., concurring); Arnold v. Mayor & Aldermen of Knox

ville , 115 Tenn. 195, 202 , 90 S.W. 469, 470 (1905), and does not apply to dict a. See Shousha v. Matthews Drivurself Serv., Inc. , 210 Tenn.- 3 -

384, 389-90, 358 S.W.2d 471, 473-74 (1962). In my opinion, the idea that Tennessee

r ecognizes both a common-law and statutory claim for procurement of a b reach o f contract is just such a manifest error.

The illogic of the Edwardscourt’s reasoning can be demonstrated by askin g why the General Asse

mbly enacted Tenn.

Code Ann. § 47-50-10

9 in the first

place. Itmakes little sense t

o c o nclude that the General Assembly set out to duplicate a common-law action that alread y existed. Doing so w

ould ha ve been a waste of legislative time. Rather, because of the unsettled scope of

Tennessee’s rec

ognition of common-law torts f

or business injuries,

it is more likely

that the General Assemb

ly decided to enact a statutory cause of action for procurement of breach of contract to supplant any common-law ca

use of action. Because intentionally procuringsomeone to breach an existing c ontract is inherent ly malicious, see Dynamic Motel Management, Inc. v. Erwin , 528 S.W.2d 819, 822 (Tenn. Ct. App. 1975), the General Assembly

also decided to replace the common-law puni tive damage remed

y with a statutory treble dam

age remedy.
Resurrecting

the common-law cause of action for procureme nt of bre ach of contr actadds little to our substantive law and creates unnecessary procedural complexity. The statutory remedy provides an appropriate vehicle f o r recovering damages and for d eterring intentionally malicious conduct. At the same time, continuing to recognize the exist ence of a common-l

aw cause of

action will require the par ties, the trial co

urt, and the jury to d

eal with overlappin

g, duplicative , an d potentially

confusing instructions

and special interr

ogatories. Accor

dingly, I would hold that Tenn. Code A

nn. § 47-50-10 9 pro vides the sole remed y for the tort of pro curing a breac h of contract and tha t this case, if re

tried, should be trie

d on the statutory cause of action alone.

_____________________________ WILLIAM C. KOCH, JR., JUDGE