FLORIDA BUSINESS LITIGATION: ORDINARY COMPETITION MAY NOT CONSTITUTE A TORTIOUS INTERFERENCE CLAIM

Tortious interference is the intentional and unjustified interference with a relationship or contract that results in damages. However, tortious interference does not occur every time a contract or business relationship is consequentially affected. Direct interference is a necessary element of the tort (a wrongful act or an infringement of a right). Peter Mavrick is a Miami business litigation lawyer who has substantial experience representing the interests of businesses and business owners in commercial litigation and non-compete litigation.

Competition for business is not per se (by itself) an actionable interference, even if intentional. An example of this circumstance occurred in the case of Wackenhut Corp. v. Maimone, 389 So. 2d 656 (Fla. 4th DCA 1980), where plaintiff left his employment in the defendant’s security business and formed his own security company. Plaintiff solicited defendant’s supermarket client in violation of his non-compete and non-solicitation agreement with Defendant. Plaintiff’s contract with the supermarket was terminable by either party upon 30 days’ notice. Defendant, however, did not sue plaintiff, but instead it persuaded the supermarket client to come back under contract with it. Plaintiff sued defendant for tortious interference. Wackenhut Corp. v. Maimone held that defendant’s solicitation for the supermarket’s business did not constitute tortious interference with plaintiff’s contractual or business relationships. The evidence only showed that defendant persuaded the supermarket to lawfully terminate its “at-will” contract with plaintiff and re-establish its business relationship with defendant. The appellate court found that irrespective of defendant’s motives, there was no showing that defendant interfered with the supermarket’s payment to plaintiff during any 30-day period of plaintiff’s contract. As Florida’s Fifth District Court of Appeal explained in the case Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So. 2d 1074 (Fla. 5th DCA 1982), “[e]ven if the contract is terminable at will, the interferer’s actions are tortious… if the motive is purely malicious and not coupled with any legitimate competitive economic interest.” In other words, a claim for tortious interference can stand only when there is malicious conduct devoid of any legitimate economic interest.

A tortious interference claim can also fail whern there is a lack of proof of direct interference with the agreement or relationship. “The law in Florida is clear that there is no such thing as a cause of action for interference with a contractual or advantageous business relationship which is only consequentially effected.” Florida Power & Light Co. v. Fleitas, 488 So. 2d 148 (Fla. 3d DCA 1986). Fleitas held that Florida law does not recognize a cause of action for negligent interference with a contractual or business relationship. In Fleitas, the plaintiff alleged that he was dismissed from his job with IRM because Florida Power & Light Co. (FP&L) negligently investigated an illegal drug complaint against him and barred him from FP&L’s Turkey Point Power Plant. Plaintiff’s complaint was that he was fired by his employer as a result of FP&L’s negligent conduct. The trial court entered judgment in favor of plaintiff. FP&L immediately appealed. The appellate court reversed the ruling because plaintiff’s claim was only that FP&L negligently investigated the drug accusation and caused, albeit unintentionally, plaintiff to lose his job. Florida Power & Light Co. v. Fleitas held that this was not a cognizable cause of action in Florida or anywhere else in the country.

Florida courts typically will find that there is no merit to a tortious interference claim when there is a legitimate economic motive for a defendant’s actions. In Ethyl Corp. v. Balter, 386 So. 2d 1220 (Fla. 3d DCA 1980), the plaintiff filed a lawsuit for, among other things, tortious interference because the Plaintiff pulled out of a deal that was necessary for Plaintiff’s agreement with a third party. The trial court found in favor of plaintiff. The defendant immediately appealed. The appellate court found that “[t]here was a total lack of proof of a direct interference with that agreement, which is indispensable to the existence of an actionable wrong.” The appellate court also held that it is beyond question that the defendant acted in the lawful protection of its legitimate interests in receiving the money it was owed and not “solely” out of malice. Ethyl Corp. v. Balter held that “[t]here is utterly no evidence that [defendant] committed any actionable wrong, that it engaged in any activity which is or should be recognized by the law of torts as giving rise to an action by [plaintiff] to recover damages on his behalf.”

Peter Mavrick is a Miami business litigation attorney. This article does not serve as a substitute for legal advice tailored to a particular situation.