Hartbarger v. Burdeau Real Estate Co., 51984

• Decision Date: 22 December 1987
• Docket Number: No. 51984,51984
• Citation: 741 S.W.2d 309
• Parties: Kenneth S. HARTBARGER, Plaintiff-Appellant, v. BURDEAU REAL ESTATE COMPANY, John G. Burdeau, Jr. and David Burdeau, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 309

741 S.W.2d 309

Kenneth S. HARTBARGER, Plaintiff-Appellant, v. BURDEAU REAL ESTATE COMPANY, John G. Burdeau, Jr. and David

Burdeau, Defendants-Respondents.

No. 51984.

Missouri Court of Appeals,

Eastern District,

Division One.

Dec. 22, 1987.

Donald R. Raney, Godfrey, Ill., for plaintiff-appellant.

Davis Biggs, St. Louis, for defendants-respondents.

SATZ, Presiding Judge.

Plaintiff Kenneth Hartbarger sued defendants Burdeau Real Estate, David Burdeau and John G. Burdeau, Jr. for intentional interference with a business expectancy. The trial court granted defendants' motion for summary judgment. Plaintiff appeals. We affirm.

The record discloses the following facts. Lock Realty, a corporation owned by defendants John G. Burdeau, Sr. ¹ and David Burdeau, leased property known as 5800 North Broadway to Global Waste, a corporation owned by plaintiff. The lease was for a period of five years. Lock Realty dissolved and assigned its interest in the lease to defendants John and David Burdeau. With defendants' consent, Global Waste subleased the premises to plaintiff. Global Waste then dissolved. Subsequently, plaintiff subleased the premises to Chad-Can, Inc., again with the consent of John Sr. and David Burdeau.

According to plaintiff's deposition, in May, 1985, four months before the lease was to expire, plaintiff asked Chad-Can if Chad-Can intended to renew its sublease with plaintiff. Chad-Can indicated to plaintiff it intended to renew the sublease, but no sublease was ever executed. Plaintiff then asked defendants to renew his lease for five additional years. Plaintiff and defendants agree that plaintiff wrote at least one letter ² to defendants with this request, dated July 3, 1985, less than two months before the lease was to expire. Defendants responded by letter dated July 8, 1985, stating:

Before preparing a new lease for 5800 North Broadway, the Burdeau Real Estate Company would like a copy of your sublease to Chad-Can, Inc. Please send us a copy as soon as possible.

Defendants then approached Chad-Can and offered to lease the property directly to Chad-Can at Chad-Can's current rent for five years. Chad-Can accepted defendants' offer. The present action followed.

The parties discuss several issues on appeal. One is dispositive.

An obviously essential element of a claim for wrongful interference with a business expectancy is the existence of a valid business expectancy. E.g., Briner Electric Co. v. Sachs Electric Co., 680 S.W.2d 737, 740 (Mo.App.1984). The business relationship protected need not be evidenced by an enforceable contract, but there must be reasonable expectations of economic advantage or commercial relations. E.g., Shafer v. Western Holding Corp., 673 S.W.2d 117, 121 (Mo.App.1984). In the present case, plaintiff contends the business expectancy was the sub-lease he was discussing or negotiating with Chad-Can. However, plaintiff had no basis to reasonably expect he could enter into a sublease with Chad-Can.

Plaintiff's discussions or negotiations with his prospective sub-lessee, Chad-Can, were based upon what plaintiff perceived to be his "option rights" to renew his lease with defendants. These rights, however, were illusory. Under the terms of the "option", plaintiff had the "option to renew for an additional five (5) years under the terms and conditions to be negotiated at that time." ³ This language, however, is at best an agreement to negotiate and does not provide the essential elements of a written contract required by our Statute of Fraud for a lease. § 432.010 RSMo. 1986; State ex rel. Johnson v. Blair, 351 Mo. 1072, 174 S.W.2d 851, 854 (1943). Crane v. Berman, 297 S.W. 423, 424 (Mo.App.1927). Therefore, plaintiff's perceived rights to renew his lease were unenforceable. Moreover, defendants promise, as defined in the "option" clause, was nothing more than a promise to negotiate. Defendants were not obligated to agree to anything plaintiff requested. This indefiniteness and uncertainty about the terms of the renewal again render plaintiff's perceived rights unenforceable. Rosenberg v. Gas Service Co., 363 S.W.2d 20, 26-27 (Mo.App.1962). In short, plaintiff had no basis to reasonably expect he could sublease the premises in question to Chad-Can.

Admittedly, there are jurisdictions which hold a defendant liable for interfering with a business relationship where the relationship between the plaintiff and third party is based upon a contract which is unenforceable because of the Statute of Frauds, a statute of limitation, uncertainty of terms or lack of...