law-tortious-interference with contract, business contract, or prospective contractual relations | cause of
action | justification defense to claim | affirmative defense of privilege, own protected superior right |
elements of contract | elements of breach of contract | noncompetes and nonsoliciation agreements | trade
secrets | trespass | TRO and temporary injunctions
TORTIOUS INTERFERENCE ELEMENTS (SUPREME COURT CASE LAW)
The elements of tortious interference with contract are (1) existence of a contract subject to interference, (2)
willful and intentional interference, (3) interference that proximately caused damage, and (4) actual damage
or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998).
PRIVILEGE DEFENSE TO TORTIOUS INTERFERENCE
In the context of tortious interference claims, as opposed to those for libel and slander, "the privilege does
not deny the interference, but rather seeks to avoid liability based upon a claimed interest that is being
impaired or destroyed by the plaintiff's contract. Such defenses, which constitute a confession and
avoidance, are affirmative in nature." Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989), citing
Tex.R. Civ. P. 94. The Texas Supreme Court concluded that "the privilege of legal justification or excuse in
the interference of contractual relations is an affirmative defense upon which the defendant has the burden
of proof." Id. See also Southwestern Bell Tel. Co. v. John Carlo Texas, Inc., 843 S.W.2d 470, 471 (Tex.
1992), citing Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 91 (Tex. 1976) ("Interference
with contractual relations is privileged where it results from the exercise of a party's own rights or where the
party possesses an equal of superior interest to that of the plaintiff in the subject matter."); in accord Victoria
Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991), and Sterner, 767 S.W.2d at 691. See also DBI
Services, Inc. v. Amerada Hess Corp., 907 F.2d 506, 508 (5th Cir.1990) ("Under [an affirmative defense to a
claim for tortious interference], a party is privileged to interfere with another's contract if (1) it is done in a
bona fide exercise of his own rights, or (2) he has an equal or superior right in the subject matter to that of
the other party."), citing Sterner, 767 S.W.2d at 690.
What are the Elements of Tortious Interference
[ not tortuous ] Interference Claim in Texas?
HOUSTON CASES
The elements of a claim for tortious interference, which is brought by a party (here, the Banks) to a contract
(here, the preferred ship mortgage lien) against a third-person stranger to the contract (here, Clariant) are
(1) the existence of a contract subject to interference; (2) willful and intentional interference by the third
party; (3) interference that proximately caused the damage; and (4) actual damage or loss. Holloway v.
Skinner, 898 S.W.2d 793, 794-95 (Tex.1995); WTG Gas Processing, LP v. ConocoPhillips Co., 309 S.W.3d
635, 652 (Tex.App.-Houston [14th Dist.] 2010), citing Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456
(Tex.1998).
The elements of a claim for tortious interference with a prospective business
relationship are (1) a reasonable probability that the plaintiff would have entered into a
business relationship; (2) an independently tortious or unlawful act by the defendant
that prevented the relationship from occurring; (3) the defendant did such act with a
conscious desire to prevent the relationship from occurring or the defendant knew the
interference was certain or substantially certain to occur as a result of the conduct;
and (4) the plaintiff suffered actual harm or damages as a result of the defendant's
interference. Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.- Houston
[14th Dist.] 2001, pet. denied).
Fairchild v. Barron (Tex.App.- Houston [1st Dist] Jan. 30, 2009)(Alcala)
(summary judgment, tortious interference, motion to compel, estoppel)
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00534-CV James W. Fairchild, Individually and in the name and right of Exeter Energy Services,
L.P., and Fairchild & Wells, Inc. v. Thomas F. Barron, Tetra Prime, Inc., and John Wells, Individually
Appeal from 129th District Court of Harris County
Trial Court Judge: Hon. Grant Dorfman
The elements of tortious interference with a contract are (1) the existence of a contract subject to
interference; (2) a willful and intentional act of interference; (3) that was a proximate cause of the plaintiff's
damages; and (4) actual damage or loss. Swank v. Sverdlin, 121 S.W.3d 785, 800 (Tex. App--Houston [1st
Dist.] 2003, pet. denied). To be subject to liability, an actor must have knowledge of the contract or relation
with which he is interfering and of the fact that he is interfering with the performance of that contract. See
Restatement (Second) of Torts §766 cmt. i; see also Steinmetz & Assocs., Inc. v.Crow, 700 S.W.2d 276,
277-78 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.) (noting that "one element of a cause of action for
interference with contract or business relation is that the interferer had actual knowledge of the contract or
business relation in question, or knowledge of facts and circumstances that would lead a reasonable person
to believe in the existence of the contract or business relationship")
WTG Gas Processing, LP v. ConocoPhillips Company (pdf) (Tex.App.- Houston [14th Dist.] Mar. 2, 2010)
(Corrected superseding opinion by Seymore) (cross appeals, breach of contract and tortious-interference
claims, no contract formed, statute of frauds, summary judgment affirmed)
AFFIRMED: Opinion by Justice Charles Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00019-CV WTG Gas Processing, LP v. ConocoPhillips Company, Targa Field Services, LLC, Targa
Resources Texas GP LLC, Targa Resouces, Inc., Targa Texas Field Services, Lp and Warburg Pincus, LLC
Appeal from 333rd District Court of Harris County
Trial Court Judge: Joseph J. Halbach
Defense of justification / privilege to occupy premises based on lease
Source: O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(lease law, theft liability act
claim)
Claim of tortious interference with future business relationships. The elements of that claim are (1)
a reasonable probability that the parties would have entered into a contractual relationship; (2) an
independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3)
the defendant did such act with a conscious desire to prevent the relationship from occurring or knew the
interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff
suffered actual harm or damage as a result of the defendant's interference. Le Meridien Hotels & Resorts v.
LaSalle Hotel Operating P=ship, I, L.P., 141 S.W.3d 870, 879 n.4 (Tex. App.-Dallas 2004, no pet.).
Summary judgment proof conclusively establishing appellees' defense of privilege.
The elements of tortious interference with contract are (1) the existence of a contract subject to
interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a
proximate cause of the claimant's damage; and (4) actual damage or loss occurred. Baty v. Protech Ins.
Agency, 63 S.W.3d 841, 856-57 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (citing Powell Indus., Inc.
v. Allen, 985 S.W.2d 455, 456 (Tex. 1998)). Even if the plaintiff establishes all the elements of a claim for
tortious interference with a contract, the defendant may avoid liability if it establishes the elements of the
defense of justification. Id. at 857 (citing Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77-78 (Tex. 2000)). "[T]he justification defense can be based on the exercise of either (1) one's own legal
rights or (2) a good-faith claim to a colorable legal right, even though that claim ultimately proves to be
mistaken." Fin. Review Servs., 29 S.W.3d at 80. If a trial court finds as a matter of law the defendant had a
legal right to interfere with a contract, the defendant has conclusively established the justification defense,
and the motive is irrelevant. Id.
Tortious interference with prospective business relations
This court has previously outlined the apparent requirements to succeed on a claim for tortious interference
with a prospective business relationship:
(1) a reasonable probability that the plaintiff would have entered into a business relationship;
(2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring;
(3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the
defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and
(4) the plaintiff suffered actual harm or damages as a result of the defendant's interference.
Baty, 63 S.W.3d 841 at 860.
Barbarawi v. Ahmad (Tex.App.- Houston [14th Dist.] May 27, 2008)(Hedges) (breach of contract, tortious
interference with business, sale of restaurant)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Fowler and Boyce
14-07-00790-CV Aiman Barbarawi and Husam Barbarawi v. Adnan Ahmad
Appeal from 113th District Court of Harris County
Trial Court Judge: Patricia Ann Hancock
Bluebonnet Petroleum, Inc. v. Kolkhorst Petroleum (Tex.App.- Houston [14th Dist.] Oct. 9, 2008)(Substitute
opinion by Brown) (SJ, admissible evidence, no theft of theft of trade secrets, breach a fiduciary duty, tortious
interference)
trade secrets, breach a fiduciary duty)
AFFIRMED: Opinion by Justice Brown
Before Chief Justice Hedges, Justices Brown and Boyce
14-07-00380-CV Bluebonnet Petroleum, Inc. v. Kolkhorst Petroleum Company, Inc.
Appeal from 335th District Court of Washington County
Trial Court Judge: Terry Flenniken
SP Midtown Ltd. v. Urban Storage, LLC (Tex.App.- Houston [14th Dist.] May 8, 2008)(Anderson) (summary
judgment, trade secrets, tortious interference)
SP Midtown, Ltd. v. Urban Storage, L.P., No. 14-07-00717-CV, 2008 WL 1991747 (Tex. App.-Houston [14th
Dist.] May 8, 2008, pet. denied) (mem. op.)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-07-00717-CV SP Midtown Ltd. d/b/a Space Place Midtown v. Urban Storage, L.P. d/b/a Midtown Mini
Storage and d/b/a Midtown Mini Warehouse and d/b/a Midtown Self Storage , Midtown Storage, L.L.C. and
The Jenkins Organization, Inc.
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull
O'Kane v. Coleman (Tex.App.- Houston [14th Dist.] July 1, 2008)(Fowler)(commercial leases, Theft Liability
Act claim, amendment of pleadings prior to hearing, tortious interference, defense of privilege, denial of
motion for continuance, admissions exclusion of summary judgment evidence, lease law, Theft Liability Act
claim, amendment of pleadings prior to hearing, tortious interference)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler
Before Justices Fowler, Frost and Seymore
14-06-00657-CV Jon Richard O'Kane v. Jeff Coleman, Individually and Enterprise Rent-A-Car Company of
Texas, Inc.
Appeal from 10th District Court of Galveston County
Trial Court Judge: David Edward Garner
In this case arising from sequential leases of the same commercial premises, the initial lessee, appellant Jon
Richard O'Kane appeals from a take-nothing summary judgment in favor of the subsequent lessees,
appellees Jeff Coleman, individually, and Enterprise Rent-A-Car Company of Texas, Inc. We affirm the
judgment in favor of appellees on all claims except O'Kane's claim under the Texas Theft Liability Act. We
sever that claim from the remaining claims, reverse the summary judgment in favor of appellees on O'Kane's
Theft Liability Act claim, and remand to the trial court.
Having concluded that appellees' summary judgment motion was not sufficiently broad to cover O'Kane's
Texas Theft Liability Act claim, we reverse the trial court's summary judgment in favor of appellees on that
claim, sever that portion of the court's judgment, and remand the case to the trial court for further
proceedings as to the Texas Theft Liability Act claim. We affirm the remainder of the judgment.
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