Switching gears a bit from fraud is the cause of action for “tortious” interference with existing contract. The general elements of such cause of action are as follows:
- A valid contract
- 2) that the Defendant willfully and intentionally interfered with,
- 3) proximately causing injury to Plaintiff and
- 4) the Plaintiff incurred actual damage or loss.
The Plaintiff, obviously, must show it had a valid contract, not some other contract such as an unenforceable contract, or a terminable contract. The Plaintiff will plead and prove that the Defendant willfully and intentionally interfered with that contract. Browning v. Reyna 865 SW2d 925 (Tex. 1993). The Defendant may try to defend that he is a stranger to the contract, as the Defendant cannot tortiously interfere with its own contract. In these collection matters, the creditor or factor will establish that the Defendant either had actual knowledge of the contract, and that the Plaintiff was interested in it, or, the Defendant has knowledge of certain facts and circumstances that would lead a reasonably prudent person to believe there was a contract in which the creditor had an interest. In proving the Defendant’s interference with the contract, the Plaintiff will need to establish that such Defendant’s interference was intentional. Such interference does not necessarily require an intent to injure Plaintiff but it does require an intent to interfere. Greenville v. Automatic 465 SW3d 778 (Dallas 2015). A Defendant may be held liable if it is shown that such Defendant intentionally induced a third party to breach a contract with a creditor, or that the Defendant prevented performance by Defendant, by making the performance impossible, or more burdensome, difficult, or expensive. In this situation, the creditor in a tortious interference claim can recover damages for lost benefits under the contract, its lost profits, which must be proved by the creditor, as not a precise calculation of anticipated profits, but lost profits must be proved with reasonable certainty. Browning, above at p. 549. In certain cases, a Plaintiff can also recover exemplary damages, but not attorney’s fees. Plaintiff’s attorney should take enough time with his client, to show the Court, that the anticipated amount of lost profits is capable of being reasonably easy to calculate, not just speculation.
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*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion
Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate