Opinion
No. 106,931.
2013-01-25
M WEST, INC., Appellant, v. OAK PARK MALL, LLC, and Cingular Wireless, LLC, Appellees.
Appeal from Johnson District Court; David W. Hauber, Judge. Mark D. Murphy, of The Murphy Law Firm, LLC, of Overland Park, for appellant. Thomas E. Nanney and Jennifer A. Donnelli, of Bryan Cave LLP, of Kansas City, Missouri, for appellee Cingular Wireless, LLC.
Appeal from Johnson District Court; David W. Hauber, Judge.
Mark D. Murphy, of The Murphy Law Firm, LLC, of Overland Park, for appellant. Thomas E. Nanney and Jennifer A. Donnelli, of Bryan Cave LLP, of Kansas City, Missouri, for appellee Cingular Wireless, LLC.
Amber F. Steinbeck, Kathryn G. Lee, and Michael T. Crabb, of Husch Blackwell, LLP, of Kansas City, Missouri, for appellee Oak Park Malt, LLC.
Before PIERRON, P.J., MALONE, C.J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
M West, Inc. (M West) appeals a defense verdict in its breach of contract and tortious interference lawsuit against Oak Park Mall, LLC (Oak Park) and Cingular Wireless, LLC (Cingular). M West and Cingular were both tenants of Oak Park and were in negotiations for Cingular to assign its lease to West. Before Oak Park approved the assignment, Cingular and Oak Park reached an agreement for terminating Cingular's lease. M West argues the weight of the evidence is contrary to the jury's verdict and we should find Cingular breached its contract with M West and that Oak Park tortiously interfered with this prospective business advantage. We affirm.
This case is on its second visit to our court. The general facts were established earlier when we considered the trial court's grant of summary judgment in favor of Oak Park and Cingular. See M West, Inc. v. Oak Park Mall (M West), 44 Kan.App.2d 35, 234 P.3d 833 (2010).
“Cingular was a tenant in Oak Park under a 10–year lease agreement signed in April 2004. In early 2006, with approximately 8 years remaining on its lease agreement with Oak Park, Cingular began communicating with M West regarding an assignment of its lease agreement. M West owned Charlotte & Tipit, a fine jewelry store located at Oak Park, and was looking for a larger store space.
“Under Cingular's lease agreement with Oak Park, before Cingular could assign its lease to another entity, Cingular had to obtain Oak Parks' consent to the assignment agreement:
‘Section 16.01. Consent Required.
‘(A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this Lease, in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of Owner in each instance.... As a condition to any assignment of this Lease by Tenant which is permitted under this Lease, the assignee thereof shall be required to execute and deliver to Owner an agreement, in recordable form, whereby such assignee assumes and agrees with Owner to discharge all obligations of Tenant under this Lease....
‘(B) If Tenant shall request Owner's consent to any assignment of this Lease or to any subletting of all or any part of the Leased Premises, Tenant shall submit to owner with such request the name of the proposed assignee or subtenant, such information concerning its business, financial responsibility and standing as Owner may reasonably require, and the consideration (and the terms and conditions thereof) to be paid for and the effective date of the proposed assignment or subletting.’
“M West alleged that in January 2006, David Farmer, a representative of Cingular, contacted Homiri Moshiri, the president of M West, and asked if he was still interested in the Cingular space. According to M West, Farmer and Moshiri discussed the terms of an assignment of the lease to M West, which would include a substantial payment by Cingular to M West and Cingular remaining on the lease as a guarantor. M West further alleged that Farmer told Moshiri that in the Cingular lease there was a provision that if Oak Park did not approve of a proposed assignment, then Cingular would be released from the lease. As a result, Farmer told Moshiri that there would be no problem getting Oak Park to approve of the assignment.
“M West further alleged that Moshiri contacted an Oak Park representative and requested Oak Park's approval of M West's assumption of the lease. According to M West, Moshiri was assured that M West was approved to proceed and enter into such an assumption. M West asserted that the negotiations with Farmer continued by telephone through April 2006 when Farmer announced that Cingular and M West had a deal. According to M West, Moshiri then contacted Karla Rocker with Oak Park and told her about the agreement that M West and Cingular had reached. M West alleged that Rocker told Moshiri that was fine and M West could proceed with the agreement with Cingular.
“On April 5, 2006, Moshiri emailed Jody House, an Oak Park representative, that M West and Cingular had reached a meeting of the minds, subject to Cingular's real estate department's approval, to assign Cingular's lease to M West. Moshiri stated that he needed to know whether Oak Park's real estate department liked ‘this idea or not.’ House responded, ‘I like the idea.’
“ Communications Between Cingular and M West in April and May 2006
“On April 7, 2006, Farmer, on behalf of Cingular, sent M West a proposed assignment of Cingular's lease at Oak Park. The document read as follows:
‘I have been authorized to offer you an assignment of the above referenced property, in exchange for consideration in the amount of $330,000.00 effective June 30, 2006, whose lease has approximately 89 months remaining on the lease. This represents an assignment fee of $180,000.00 plus $150,000.00 (approximately 14 months' rent and charges).
‘This is not a binding proposal and is contingent upon Cingular's Real Estate Committee's final approval, consent of the Landlord's mortgagee, if required, and the full execution of a formal binding written assignment agreement mutually acceptable to the parties. However, if this proposal meets with your satisfaction, please sign below and fax it back to me at 831.464.3961 so that I may get final approval from Cingular. Upon approval I will notify you immediately so we may commence producing the necessary documentation.
‘I look forward to your fast and favorable reply, since time is of the essence. This proposal shall expire at the close of business on April 14, 2006. Cingular asks that you please respond in writing .’
“Moshiri ‘AGREED TO AND ACCEPTED’ the proposed assignment by placing his electronic signature on the signature line below those words at the bottom of the document. Thereafter, Moshiri began lining up contractors, cabinet makers, and sign makers that would be ready to remodel Cingular's store space once the proposed assignment was accepted by Oak Park. On May 2, 2006, Moshiri sent an email to Cingular stating that his plan was to have the space remodeled and open by August 1, 2006. Otherwise, because Moshiri would be out of the country during August and September, he stated that the opening of the new store would ‘end up in October’ which ‘cuts it close’ to the holiday shopping season and the store's fall jewelry events.
“In an email dated May 8, 2006, Moshiri expressed frustration at Cingular's delay in preparing the proper documents for Oak Park. Moshiri stated: ‘If this takes much longer, I will have to move on.’ Cingular responded on May 10, 2006, by attaching a letter that it intended to forward to Oak Park. That same day, a series of emails was sent between Moshiri and Cingular about the terms of the assignment to be included in the letter to Oak Park. The parties' emails reference the payment of $180,000 by Cingular to M West for assignment of the lease and also a $150,000 payment by Cingular to Oak Park to be credited towards M West's rent and other charges in Cingular's store space.
“By letter dated May 11, 2006, Cingular requested Oak Park's consent to the assignment of its lease to M West. Cingular's letter outlined the consideration for the proposed assignment as follows:
‘[T]he proposed consideration for the assignment is $150,000.00, which (i) shall be paid directly from Tenant to Owner, for the benefit of Assignee, and (ii) is to be held by Owner in a segregated interest-bearing account for the benefit of Assignee, and from which all future rent and other charges owed by Assignee shall be paid until such amounts are exhausted in full. Tenant shall also make a payment directly to Assignee in the amount of $180,000.00 in connection with this matter.’
“On May 12, 2006, a Cingular representative sent an email to Moshiri telling him that ‘[t]he single greatest thing for you in this deal is that Cingular Wireless is the tenant under the lease and will remain primary (financially) under the lease as a de facto guarantor.’
“On May 17, 2006, Oak Park offered to terminate Cingular's lease in exchange for a $465,000 payment. That same day, Moshiri emailed Oak Park and asked how long it would take to get approval for the proposed assignment of Cingular's lease. Karla Rocker, with Oak Park, responded: ‘I should have more information for you by the end of the week. We are in the middle of our discussion.’ On May 23, 2006, Rocker sent a letter to Cingular stating that Oak Park would not consent to the proposed lease assignment.
“On June 2, 2006, Cingular sent a letter to Rocker confirming an agreement between Oak Park and Cingular for Oak Park to terminate Cingular's lease on June 15, 2006, in exchange for a $400,000 payment.
“In November 2006, M West sued Oak Park and Cingular. M West claimed that Cingular breached its assignment agreement with M West. In addition, M West made claims of breach of contract and tortious interference with a prospective business advantage or relationship against Oak Park.
“In December 2007, Cingular moved for summary judgment against M West. Cingular argued that M West could not satisfy the statute of frauds for its breach of contract claim. The trial court determined that the communications between Cingular and M West showed only continuing negotiations and that a meeting of the minds as to the terms of a mutually acceptable lease assignment between Cingular and M West could not be established. The trial court found that because the writings between the parties did not evidence an existing and binding contract, the statute of frauds had not been satisfied. Accordingly, the trial court granted summary judgment to Cingular on M West's breach of contract claim.
“In July 2008, Oak Park moved for summary judgment against M West. Oak Park argued that there existed no genuine issues of material fact as to whether an enforceable contract existed between the parties, thereby precluding M West's breach of contract and tortious interference claims against it. On M West's breach of contract claim, the trial court determined that the undisputed facts did not support an inference that Oak Park and M West had entered into an agreement. On M West's tortious interference claim, the trial court determined that Oak Park ‘had a contractual right to engage in the conduct complained of, and the available evidence, even when resolved in favor of the nonmoving party, is not strong enough to raise a non-speculative inference’ that Oak Park ‘was not justified in acting to terminate its lease for consideration that Cingular agreed to pay.’ Accordingly, the trial court granted summary judgment to Oak Park on M West's breach of contract and tortious interference claims.” 44 Kan, App.2d at 39–43.
M West appealed and the Court of Appeals reversed and remanded for further proceedings. The court found that the communications between the parties met the statute of frauds and, in looking at the record in the light most favorable to M West, there existed a genuine issue of material fact as to whether the communications between M West and Cingular evidenced the existence of a binding contract with conditions precedent to performance under the contract or only preliminary negotiations with conditions that had to be met before formation of the contract. The court stated that if a binding contract existed between Cingular and M West, Cingular could be held liable to M West if it was found that Cingular did not act in good faith with regard to the contract or hindered, delayed, or prevented the happening of the condition precedents for the purpose of avoiding performance of the contract. 44 Kan.App.2d at 38–39.
The M West I court also held that based upon the nature of the relationship between Cingular and M West, the viability of M West's tortious interference claim against Oak Park was dependent upon whether there was a binding contract between Cingular and M West. If it was found that a binding contract existed between Cingular and M West, then there was evidence to create a genuine issue of material fact as to whether Oak Park engaged in intentional misconduct which was unjustified and malicious. 44 Kan.App.2d at 39.
Upon remand, the case proceeded to trial. After a full-week trial, the jury returned a defense verdict in favor of Oak Park and Cingular. On the verdict form, the jury answered the special questions as follows: “With respect to Instructions Nos. 13–17, do you find that [M West] had a contract with defendant Cingular Wireless LLC?—Yes”; “If you answered yes to Question No. 1, do you find that defendant Cingular Wireless LLC breached any contract with [M West]—?No”; “With respect to Instruction Nos. 22–24, do you find that defendant Oak Park Mall LLC tortiously interfered with any prospective contract or business relationship with [M West]?—No .”
M West filed a motion for judgment notwithstanding the verdict based on virtually the same grounds as now raised on appeal. The trial court denied M West's motion, finding there was sufficient evidence to support the jury's verdict that Cingular did not breach the contract, and that adequate business reasons supported the jury's verdict that Oak Park did not tortiously interfere with the contract. M West appeals.
M West challenges the jury's verdict in favor of Cingular and Oak Park. Our standard of review is well established.
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of the appellate court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.” Dougan v. Rossville Drainage Dist., 270 Kan. 468, Syl. ¶ 6, 15 P.3d 338 (2000).
Breach of Contract against Cingular
First, M West argues the jury's verdict was erroneous because it found that M West and Cingular had a binding contract but Cingular did not breach the contract. M West argues the uncontradicted evidence at trial demonstrated that Cingular breached the contract.
M West maintains the only contract that could have been upheld by the jury was the document dated April 7, 2006, sent to M West from Farmer, which was signed and returned by M West. M West argues there were three conditions for the performance of the contact: (1) approval of the contract by Cingular's real estate committee; (2) consent of Oak Park “if required”; and (3) execution of a formal binding written assignment agreement between Cingular and M West. M West argues a representative from Cingular expressly told M West that Cingular “officially approved” of the assignment. M West contends that whether Oak Park consented or not had no effect on the assignment agreement between M West and Cingular. M West also maintains the third condition was exclusively under the control of Cingular and there had to be a breach of contract as Cingular did absolutely nothing to prepare the formal assignment agreement.
M West insists the jury's finding of an existing contract but no breach of that contract makes no sense, is against the weight of the evidence, and is contrary to the jury instructions. See City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007) (“As a general rule, a verdict will be set aside as contrary to law where, under the evidence, the verdict is contrary to the instructions given by the trial court.”).
The intent of Cingular and M West concerning the assignment agreement was a question for the jury. Conditions precedent to the formation of a contract involve issues of offer and acceptance which precede and determine the formation of a contract. In contrast, conditions precedent to performance under an existing contract arise from the terms of a valid contract and define an event that must occur before a right or obligation matures under the contract. City of Haverhill v. George Brox, Inc., 47 Mass.App. 717, 719–20, 716 N.E.2d 138 (1999) (citing Corbin on Contracts § 628 [1960 & 1999 Supp.]; 5 Williston on Contracts § 666A [3d ed. 1961 & 1999 Supp.]; Restatement [Second] of Contracts § 224 [1979] ). Whether conditions are considered prerequisites to formation of a contract or prerequisites to an obligation to perform under an existing agreement is controlled by the intent of the parties. Western Commerce Bank v. Gillespie, 108 N.M. 535, 537, 775 P.2d 737 (1989); Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976).
Jury Instruction No. 18 provided:
“In this matter, as to plaintiff's [ sic ] M West's breach of contract claim against defendant Cingular Wireless, LLC, you must decide whether (1) the parties reached an intended assignment agreement that required performance of certain conditions, or (2) the parties did not reach an intended assignment agreement because certain conditions were not met.
“You are instructed that parties may make an enforceable contract binding them to ultimately prepare and sign a subsequent and final agreement where the parties have agreed on all essential and material terms that are to be incorporated in a final document which is a mere memorial of the agreement already reached. In essence, this is a contract to make a contract. If the parties fail to agree on any essential or material term before the final document is signed, then there is no contract.
“In deciding the foregoing issues, you may consider all the evidence, including any written documents or communications of the parties.”
Cingular argues that both Cingular and M West were aware that a formal binding written agreement was forthcoming and could not happen without Oak Park's approval. The April 7, 2006, letter from Farmer to Moshiri expressly states that “this is not a binding proposal and is contingent upon” certain factors. The evidence is undisputed that Oak Park's consent to the assignment was necessary. Cingular could not assign its rights under its lease to M West without Oak Park's approval. Cingular cites an e-mail from Farmer to Moshiri again explaining that Oak Park's approval was necessary: “This assignment will need to move up the food chain for approval by the vice president of real estate.” Cingular argues the evidence demonstrates that in order for the condition of “lull execution of a formal binding written assignment agreement” to reach fruition, Oak Park's consent was necessary. (Emphasis added.) Cingular also states M West did not present any evidence to the jury that Cingular's real estate committee approved the assignment agreement, and that DeNegri testified that Farmer was not authorized to give the final approval.
M West cites an e-mail from Farmer to Moshiri on April 19, 2006, that stated “Congratulations, you are officially approved? Call me to discuss the documentation process.” M West argues this evidence establishes satisfaction of the first contingency of the contract by Cingular's real estate committee giving approval of the agreement.
West also argues Cingular did not act in good faith when it failed to obtain Oak Park's consent to the proposed assignment. West relies on the duty of good faith and fair dealing implied in every contact in arguing that Cingular did not act in good faith.
Kansas recognizes the duty of good faith and fair dealing in every contract, with the exception of employment-at-will contracts. Estate of Draper v. Bank of America, 288 Kan. 510, 525, 205 P.3d 698 (2009); see Restatement (Second) of Contracts § 205 (1979). Courts in other jurisdictions have held that when a contract contains a condition precedent to a party's performance obligation and the occurrence of the condition is within the control of that party, the party must make a good-faith effort to bring about the condition. Johnson v. Lambros, 143 Idaho 468, 474, 147 P.3d 100 (2006); see AquaSource, Inc. v. Wind Dance Farm, Inc., 833 N.E.2d 535, 539 (Ind.App.2005) (“[A] party may not rely on the failure of a condition precedent to excuse performance where that party's own action or inaction caused the failure. When a party retains control over when the condition will be fulfilled, it has an implied obligation to make a reasonable and good faith effort to satisfy the condition.”); Brown v. Alron, Inc., 223 Neb. 1, 4, 388 N.W.2d 67 (1986); Tacoma Northpark, L.L.C. v. NW, L.L.C., 123 Wash.App. 73, 82, 96 P.3d 454 (2004).
M West argues the only evidence at trial indicated that Cingular's actions hindered Oak Park's approval of the proposed assignment agreement. On May 11, 2006, Cingular sent its letter to Oak Park seeking approval of the assignment agreement. M West states the evidence is undisputed that M West was not allowed to participate in the negotiations for approval of the assignment agreement by Oak Park, and Cingular's intent violated a duty of good faith and fair dealing when Cingular abandoned the assignment and began discussions of terminating the lease.
Cingular states there was sufficient evidence presented to the jury that Cingular made a reasonable, good-faith attempt to obtain Oak Park's approval of the proposed assignment agreement. Cingular cites DeNegri's testimony that he received a phone call from Rocker on May 12, 2006, stating that Oak Park would not consent to the assignment agreement between M West and Cingular and “the deal was dead.” DeNegri also testified that he contacted local counsel to see if Cingular would have any recourse against Oak Park for not approving the assignment and local counsel told him, “You have no recourse.” DeNegri testified that he had no conversations with Oak Park about termination until after Oak Park rejected the deal.
Cingular addresses several other arguments raised by M West. Cingular states that the fact it did not receive a written rejection of the assignment agreement by Oak Park until May 23, 2006, does not change the fact that it had an oral rejection prior to its negotiations about terminating the lease. Cingular also states that even if DeNegri's testimony was miraculously clearer at trial than at his deposition, counsel for M West was able to bring the inconsistencies before the jury to impeach him. Cingular argues the jury obviously believed DeNegri's testimony.
The M West I court recognized the evidence supporting both parties' arguments.
“Although the above-referenced language [“This is not a binding proposal”] seems to indicate that Cingular did not intend to create a binding agreement, there are also facts that would compel a contrary conclusion. These are questions of fact for a jury, not for summary judgment. As discussed previously, the contract language within the proposed assignment, the fact that Cingular required M West's acceptance to the terms in writing, the parties' later communications, and the letter sent by Cingular to Oak Park requesting approval of the proposed assignment all appear to indicate that the parties did intend to create a binding agreement.” M West I, 44 Kan.App.2d at 51.
The jury was the ultimate factfinder in this case. Although M West obviously disagrees with the outcome, there is sufficient evidence to support a finding pursuant to the jury instructions that a “contract to make a contract” existed between M West and Cingular, but Cingular did not breach any of the proposed terms and did not violate a duty of good faith and fair dealing in its negotiations with Oak Park. We will not disturb the jury's verdict in this case. Tortious Interference with Prospective Business Advantage by Oak Park
Next, M West argues the jury's verdict is erroneous because the uncontradicted evidence established that once Oak Park discovered the terms and conditions of the contract between M West and Cingular, it used that information to interfere with the relationship between M West and Cingular in order to a make a favorable deal for itself.
Tortious interference with a prospective business advantage or relationship seeks to protect future or potential contractual relations and is predicated on malicious conduct by a defendant. Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986). The elements of tortious interference with a prospective business relationship are:
“(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate cause of defendant's misconduct.” Turner, 240 Kan. at 12.
M West argues it presented extensive evidence of intentional misconduct or malice on the part of Oak Park, including: evidence that Oak Park wanted to move M West to make room for another store; Jody House told M West that she liked the idea of M West moving into the Cingular space; Oak Park knew that time was of the essence for the assignment and intentionally dragged its feet; Oak Park began negotiating for a termination with Cingular before addressing the assignment; M West was cut out of the negotiations between Cingular and Oak Park; Oak Park told Cingular on May 23, 2006, that it rejected the assignment but did not tell M West until June 8, 2006; M West's month-to-month lease was terminated on July 14, 2006, based on Rocker's recommendation; and M West estimated with reasonable certainty that it had lost profits of over $3.6 million.
Oak Park submitted evidence that Moshiri knew through e-mails exchanged with Farmer on May 25, 2006, and June 1, 2006, that Oak Park had rejected the assignment agreement. Oak Park also argues the assignment discussions were between Oak Park and Cingular and that if M West wanted more information about the status of the assignment, it should have contacted Cingular. Rocker testified that Oak Park considered the tenant leases to be confidential and would never disclose any discussions or information with a third party. Oak Park also states that House had no authority to approve any lease assignment. Farmer sent Moshiri an e-mail discouraging Moshiri from communicating with anyone at Oak Park's parent company, CBL & Associates, Inc. (CBL), about possible tax consequences regarding the Cingular space to allow CBL to focus on the assignment because “[t]his assignment will need to move up the food chain for approval by the vice president of real estate.”
Oak Park presented the testimony of Karla Rocker, Oak Park's general manager, as to why the assignment agreement was rejected. Rocker testified that it was against Oak Park's business interests to allow the assignment of a lease designed for a wireless phone tenant to a jewelry tenant. She explained that although M West's financials looked strong, there was not a lot of cash in the bank available in the event of a difficult year. She also had concerns with M West's movement from a 400–square–foot space to a 2,700–square–foot space. Rocker mentioned that all leases were now to be on the new CBL lease forms instead of the prior landlord forms. Paul Orth testified to all the changes in Cingular's lease that were needed if it was to be assigned to M West, including change in the use clause, change in base rent, and the addition of percentage rent. Rocker also testified M West's plans for renovating the Cingular space were unacceptable and were not prepared by a professional.
Oak Park presented testimony of Moshiri's attempts to discredit Oak Park with other tenants, how the relationship had become difficult and strained in July 2006, and how Oak Park was having difficulty ironing out an extension agreement with M West. These were the reasons M West's month-to-month tenancy was terminated. Oak Park cites an email from Moshiri to Cingular as evidence that M West was trying to conceal the terms of the assignment from Oak Park: “I think it is better for Singular [ sic ] Lawyer not to show the financial transaction to the mall management if possible knowing CBL they will want to put their hands on that money and it will kill the deal.”
The jury instructions specifically stated that “the plaintiff must prove malicious conduct by defendant Oak Park Mall, LLC” in order to establish a claim for tortious interference or wrongful interference with a prospective business relationship. The jury is presumed to follow the instructions. State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012). We interpret the evidence and draw all inferences in the light most favorable to the verdict. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, Syl. ¶ 6 (all reasonable inferences of the evidence are considered in the light most favorable to the prevailing party).
Under the terms of the lease agreement, Oak Park had a contractual right to approve or deny any assignment of mall leases and a similar right to terminate a lease under the appropriate circumstances. Oak Park had a contractual opportunity to view the proposed assignment agreement between Cingular and M West and decide if the assignment was in its best interests, or it could make a business decision to terminate Cingular's lease instead. However, Oak Park could still be found to have tortiously interfered with M West's business advantage or relationship. The court in Turner stated:
“ ‘Generally, a circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.’ “ (Emphasis added.) 240 Kan. at 13 (quoting 45 Am.Jur.2d Interference § 27).
The M West I court stated:
“[A] jury could conclude that Oak Park's conduct in inducing M West to proceed with an assignment agreement with Cingular and in leading M West to rely on its representations that it liked the idea of M West occupying Cingular's store space and that it was seriously considering the assignment agreement, when in actuality Oak Park was negotiating with Cingular to terminate Cingular's lease entirely, knowing that this would prevent M West from ever achieving its expectancy that it would be allowed to assume Cingular's lease, did not use fair means and good faith in exercising its right to terminate Cingular's lease.” 44 Kan, App.2d at 61.
Unfortunately for M West, after the jury heard all the evidence, it did not agree that Oak Park had tortiously interfered in this case. There is evidence here to support a finding that Oak Park was acting in its own financial interest and its actions did not amount to malicious conduct done with an intent to harm another party without reasonable justification. The dissent in our prior summary judgment appeal of this case stated:
“Like the district court, I would conclude that, absent speculation, there is no evidence that Oak Park Mall intended to injure M West by denying approval of the lease assignment. Oak Park Mall's comments of liking the idea of a potential lease assignment to M West and that the agreement sounded ‘fine’ do not demonstrate malice, Oak Park Mall was within its rights when it encouraged the potential agreement between Cingular and M West, waited to see whether that offer comported with its own business needs, and then negotiated with Cingular for an outcome that would better meet Oak Park Mall's business interests.” 44 Kan.App.2d at 63–64.
There is sufficient evidence to support the jury's verdict that Oak Park did not tortiously interfere with the potential business advantage M West might have gained from taking over Cingular's lease.
Affirmed.