Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A.

• Decision Date: 01 March 1999
• Citation: 986 S.W.2d 550
• Parties: Frances Miller BELL by Janet SNYDER, Conservator & Attorney-In-Fact, Plaintiff-Appellant, v. ICARD, MERRILL, CULLIS, TIMM, FUREN AND GINSBURG, P.A.; and William Gordon Bell; and Hunton & Williams; and Long, Ragsdale and Waters, Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 550

986 S.W.2d 550

Frances Miller BELL by Janet SNYDER, Conservator & Attorney-In-Fact, Plaintiff-Appellant, v. ICARD, MERRILL, CULLIS, TIMM, FUREN AND GINSBURG, P.A.; and William Gordon Bell; and Hunton & Williams; and Long, Ragsdale and Waters, Defendants-Appellees.

Supreme Court of Tennessee,

at Knoxville.

March 1, 1999.

William R. Willis, Jr., Alan D. Johnson, Willis & Knight, Nashville, for appellant Francis Miller Bell.

William T. Ramsey, W. David Bridgers, Neal & Harwell, PLC, Nashville, for appellee Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.

Thomas S. Scott, Jr., Dan D. Rhea, Arnett, Draper & Hagood, Knoxville, for appellee William G. Bell.

John P. Konvalinka, Susan Kerr Lee, Tonya Kennedy Cammon, Grant, Konvalinka & Harrison, Chattanooga, for appellee Hunton & Williams.

Darryl G. Lowe, Lowe, Shirley & Yeager, Knoxville, for appellee Long, Ragsdale & Waters.

O P I N I O N

DROWOTA, J.

We granted this appeal to determine whether the plaintiff's complaint states a cause of action for abuse of process. We conclude that the complaint fails to allege one of the essential elements of the tort--an improper act in the use of process. Accordingly, we affirm the judgment of the Court of Appeals which upheld the trial court's dismissal of the plaintiff's complaint for failure to state a claim upon which relief can be granted. Tenn. R. Civ. P. 12.02(6).

BACKGROUND

This action arose from a dispute over the property of the plaintiff, Frances Miller Bell. Frances Bell is the widow of Malvern Bell. Janet Snyder is Frances Bell's daughter from a previous marriage and is currently serving as Frances Bell's conservator and attorney-in-fact. The defendant, William Bell, is Malvern Bell's nephew. The other defendants are various law firms that have represented William Bell in various legal proceedings. Because this action was dismissed for failure to state a claim upon which relief can be granted, the following summary of facts alleged in the plaintiff's complaint are taken to be true. ¹

Frances Bell and Malvern Bell were married in 1976. It was the second marriage for both. Because Frances Bell was an independently wealthy divorcee and Malvern Bell had a relatively small net worth, they executed a prenuptial agreement which provided that each would maintain and devise his or her own respective estate independent of the other.

In October of 1994, while she and Malvern Bell were living in Florida, Frances Bell suffered a stroke which impaired her ability to walk, talk, and write. Following the stroke, Frances Bell signed a durable power of attorney naming Malvern Bell as her attorney-in-fact. Janet Snyder, who lived in Knoxville at this time, spoke with Frances Bell before the power of attorney was signed and agreed it was necessary if Frances Bell intended to remain in Florida. Over the ensuing months Frances Bell's condition worsened, and in March of 1995, she was relocated from Florida to a Knoxville nursing home near Snyder's residence. Malvern Bell remained in Florida.

Not long after Frances Bell relocated to Knoxville, Malvern Bell's health deteriorated. On the advice of Snyder, Frances Bell executed a new durable power of attorney which added Snyder as her alternate attorney-in-fact and provided that it was made in conformance with Tennessee and Florida law. Malvern Bell's health continued to decline and on October 26, 1995, he was declared incompetent and Snyder became attorney-in-fact for Frances Bell. Malvern Bell died a week later on November 3, 1995.

After Malvern Bell's death, Frances Bell, by and through Snyder, her attorney-in-fact, sued William Bell in Florida for conversion of her funds and misappropriation of a personal computer. This lawsuit concerns allegations that Malvern Bell, during the time he had power of attorney over his wife's affairs, misappropriated more than one million dollars of Frances Bell's assets and placed them into the Malvern Hill Bell Trust ("Trust"). Frances Bell was named a life-income beneficiary of the Trust with William Bell and his four sisters receiving the remaining funds under Malvern Bell's will. William Bell was also named trustee.

William Bell retained the law firm of Icard, Merrill, Cullis, Timm, Furen & Ginsburg ("Icard Merrill"), a defendant in this appeal, to represent him in the Florida litigation. On December 6, 1995, William Bell, by and through counsel, filed a motion to dismiss or abate the Florida action asserting that Snyder was the true party pursuing the action under a durable power of attorney that was invalid under Florida law.

On December 11, 1995, five days after filing the motion to dismiss or abate the Florida action, William Bell, represented by the law firm of Long, Ragsdale, & Waters, a defendant in this appeal, filed a petition in the Chancery Court of Knox County seeking appointment of a conservator for Frances Bell. The petition alleged that Snyder had brought the Florida litigation under an invalid power of attorney and for an improper purpose and asserted that an attorney conservator, David Draper, should be appointed to determine whether the Florida litigation was in Frances Bell's best interest.

During arguments before the Florida court on William Bell's motion to dismiss or abate, an attorney with Icard Merrill challenged Snyder's authority to institute suit pursuant to the power of attorney. In support of this challenge, the attorney cited a Florida statute ² which suspends all powers of attorney during the pendency of an "incapacity proceeding" and informed the Florida court that a conservatorship proceeding was pending in Tennessee. ³ According to the complaint, the Icard Merrill attorney also informed the Florida court that William Bell had no interest in Frances Bell's welfare and the only motive in filing the conservatorship proceeding in Tennessee was to affect the Florida litigation.

Approximately two weeks later, on February 1, 1996, William Bell voluntarily dismissed the Tennessee conservatorship petition. On February 15, 1996, Snyder filed a conservatorship petition in Knox County Chancery Court seeking to have the Chancellor name Snyder as Frances Bell's conservator. On February 21, 1996, Snyder also filed against William Bell an abuse of process and malicious prosecution suit on behalf of Frances Bell. William Bell retained the law firm of Hunton & Williams, also a defendant in this appeal, to represent him in that action.

On June 4, 1996, William Bell, again represented by Long, Ragsdale, & Waters, filed a second petition to have a Knoxville attorney, John A. Walker, II, appointed conservator for Frances Bell. This petition again alleged that an independent conservator was necessary to evaluate whether or not the Florida litigation was in Frances Bell's best interests. On June 28, 1996, the conservatorship petitions were consolidated.

On July 1, 1996, Frances Bell voluntarily dismissed her suit for abuse of process and malicious prosecution. On July 30, 1996, during hearings before the Florida court, an attorney for Icard Merrill explained that the conservatorship proceeding in Tennessee had been brought for two reasons: 1) to protect Frances Bell's interests since she was a life-income beneficiary of the Malvern Hill Bell Trust which was a defendant in the Florida litigation; and 2) to protect the interests of all the trust beneficiaries by challenging the authority of Snyder to pursue litigation against the Trust on behalf of her mother.

On August 16, 1996, the Chancellor heard arguments on Snyder's motion to dismiss William Bell's second conservatorship petition. At this hearing William Bell was represented by both Hunton & Williams and Long, Ragsdale & Waters. The Chancellor granted Snyder's motion and dismissed the second petition. Thereafter, on August 19, 1996, William Bell moved to intervene in Snyder's conservatorship proceeding. The Chancellor denied the motion to intervene, and Snyder was appointed conservator on November 7, 1996.

On January 13, 1997, Snyder filed the present suit on behalf of Frances Bell against William Bell and the law firms which have represented him in the Florida litigation and in the conservatorship proceedings in Tennessee. The complaint alleges that William Bell and the law firm defendants, acting in concert, filed the two petitions for the appointment of an independent conservator for Frances Bell solely to "scuttle" the Florida lawsuit against William Bell. The complaint sought damages for abuse of process and civil conspiracy to abuse process.

Pursuant to Tenn. R. Civ. P. 12.02(6), each of the defendants filed motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Following a hearing, the trial court granted the motions and dismissed the plaintiff's complaint as to all defendants stating that the complaint contained

no allegation from which proof then can be adduced to support that the defendants in the course of all these activities that have been attributed to them actually abused process; that is, they used the process of the Chancery Court after it was issued for some purpose for which that process was not designed in the prosecution of conservatorship proceedings.

The plaintiff appealed, and the Court of Appeals affirmed the trial court's dismissal, finding that even if the complaint were assumed arguendo to allege an ulterior motive in the use of process, the trial court's dismissal was proper because the complaint did not allege the second element of the tort--an improper act in the use of process. The Court of Appeals emphasized that the "mere existence of an ulterior motive in doing an act ... does not suffice," and stated that "merely instituting civil proceedings is generally not sufficient to support an abuse of process claim." Thereafter we granted the plaintiff's application for permission to appeal and now affirm the judgment of the Court of Appeals.

STANDARD OF REVIEW

A Tenn. R. Civ. P....