Par Industries, Inc. v. Target Container Co.

• Citation: 708 So.2d 44
• Decision Date: 12 February 1998
• Docket Number: No. 96-CA-00568-SCT,96-CA-00568-SCT
• Parties: PAR INDUSTRIES, INC. d/b/a Flexible Flyer Company v. TARGET CONTAINER COMPANY, an Alabama Corporation, and Jack Kellerman.
• Court: United States State Supreme Court of Mississippi

Page 44

708 So.2d 44

PAR INDUSTRIES, INC. d/b/a Flexible Flyer Company v. TARGET CONTAINER COMPANY, an Alabama Corporation, and Jack Kellerman.

No. 96-CA-00568-SCT.

Supreme Court of Mississippi.

Feb. 12, 1998.

Hal H.H. McClanahan, Lipscomb Geeslin & McClanahan, Columbus, for appellant.

Melinda L. Moseley, John G. Parker, Paul Hastings Hanofsky & Walker, Atlanta, GA, Thomas Wicker, Holland Ray & Upchurch, Tupelo, Dennis W. Voge, Mitchell Voge Beasley & Corban, Tupelo, for appellees.

Before SULLIVAN, P.J., and MILLS and BANKS, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶1 This appeal arises from the December 22, 1995, judgment by the Circuit Court of Clay County in favor of the appellees, Target Container Co., Jack Kellerman, and Bobby Oswalt. Par Industries d/b/a Flexible Flyer filed suit on November 14, 1991, alleging tortious interference with contractual business relations against Target Container Co. and Jack Kellerman. The answer filed by Target counterclaimed for the outstanding balance of $201,469.48 on the open account of Flexible Flyer, late charges, accrued interest and attorney fees.

¶2 All claims were tried by agreement of the parties before the Honorable Lee J. Howard sitting without a jury on October 9-12, 1995. On December 22, 1995, the circuit court entered judgment in favor of Target and Kellerman on Flexible Flyer's claims. The court also found in favor of Target on its counterclaim on open account against Flexible Flyer in the amount of $201,469.48, plus ¶3 On January 5, 1996, Flexible Flyer filed a motion for a new trial, which was denied by order dated May 14, 1996. Target then filed a motion for attorney fees pursuant to Miss.Code Ann. § 11-53-81 (Supp.1997). The circuit court awarded Target attorneys' fees of one-third of the amount collected on open account, or $67,156.49 by order dated May 17, 1996. Flexible Flyer filed this appeal on May 24, 1996.

interest at the rate of 8 % per annum from October 6, 1992.

STATEMENT OF THE LAW

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT FINDING FOR AND AWARDING JUDGMENT TO PAR AND AWARDING JUDGMENT TO TARGET.

II. THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND FACTS AS TO (A) INTERFERENCE WITH CONTRACT AND (B) INTERFERENCE WITH THE BUSINESS RELATIONSHIP BETWEEN FLEXIBLE FLYER AND ITS EMPLOYED OSWALT.

i. standard of review

¶4 "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor," and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). Where the trial court failed to make any specific findings of fact, this Court will assume that the issue was decided consistent with the judgment and these findings will not be disturbed on appeal unless manifestly wrong or clearly erroneous. Sweet Home Water & Sewer Ass'n, 613 So.2d at 872; Omnibank of Mantee v. United Southern Bank, 607 So.2d 76, 82 (Miss.1992). The reviewing court must examine the entire record and must accept, "that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact." Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983) (quoting Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983)). That there may be other evidence to the contrary is irrelevant. Id. at 686.

¶5 In contrast, this Court reviews errors of law de novo. Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996); Ford v. Holly Springs School Dist., 665 So.2d 840, 843 (Miss.1995); Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991). "Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. That the trial judge may have come close is not good enough." Cooper, 587 So.2d at 239 (quoting UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987)). If an erroneous legal standard was applied to the facts, this Court will apply a de novo standard of review of the chancellor's findings and will not hesitate to reverse. Mississippi State Dept. of Human Services v. Barnett, 633 So.2d 430, 434 (Miss.1993).

¶6 Flexible Flyer argues that the proper standard of review is de novo for two reasons. First, it asserts that because the circuit court failed to make its own findings of fact and conclusions of law then this Court must use heightened scrutiny. In support of this contention it cites to Brooks v. Brooks, 652 So.2d 1113 (Miss.1995). This reliance is misplaced. The Brooks trial court adopted verbatim the findings of fact and conclusions of law submitted to the court by one of the parties. The Brooks Court stated that when this is done, "the deference normally afforded a chancellor's findings of fact is lessened." Brooks, 652 So.2d at 1118. This rule is inapplicable to the present case because in the case at bar, neither party submitted any proposed findings of fact or conclusions of law to the circuit court.

¶7 The second reason Flexible Flyer gives to support its argument that a de novo standard of review is appropriate in this case is its assertion that the trial court applied an erroneous legal standard. In order to determine if this assertion is correct this Court must first determine what the legal elements are for each of the two claims asserted, tortious interference with contract and interference with business relations, that the judge apparently found had not been satisfied.

ii. tortious interference with contract

¶8 When a person causes another to breach a contract with some third person, the tort is one of interference with performance of a contract. The four elements for this tort are: "(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted." Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992) (citing Liston v. Home Ins. Co., 659 F.Supp. 276, 281 (S.D.Miss.1986)). The plaintiff must prove that an enforceable obligation existed between the plaintiff and another party. Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 398, 407 (Miss.1997). In addition, the plaintiff must prove that the contract would have been performed but for the alleged interference.

¶9 Flexible Flyer contends that the trial court applied an incorrect legal standard as it relates to the element of intent. It argues that the Liston case held that the plaintiff does not have to prove specific intent to show wilful and intentional action as required in the third element. It contends that the defendant's subjective intent of not meaning to harm Flexible Flyer is not a defense and consequently, the court erred in not finding that the actions of Target, whether intentional or not, caused damage to Flexible Flyer. The Liston Court is instructive as it pertains to the element of intent when it states:

The element of willfulness and calculation does not require a showing on the part of the plaintiff that defendant had a specific intent to deprive plaintiff of contractual rights. Rather, the requisite intent is inferred when defendant knows of the existence of a contract and does a wrongful act without legal or social justification that he is certain or substantially certain will result in interference with the contract.

Liston v. Home Ins. Co., 659 F.Supp. 276, 281 (S.D.Miss.1986) (emphasis added). Target and Kellerman have never argued that Flexible Flyer must show a specific intent to deprive it of contractual rights in order to establish the elements of willfulness and calculation. There is no evidence in the record that the trial court was under an erroneous belief that it had to find specific intent in order for Flexible Flyer to prevail and the court was aware of the applicable law when it rendered its decision. Therefore, this Court will apply an erroneous standard of review instead of a de novo review.

iii. tortious interference with business relations

¶10 As differentiated from interference with contract, the tortious interference with business relations occurs when a person unlawfully diverts prospective customers away from one's business, and this tort is sometimes referred to as "malicious injury to business." Cenac, 609 So.2d at 1268-69. The Court in Cenac explained that:

[A] cause of action exists [for tortious interference with business relations] where one engages in some act with a malicious intent to interfere and injure the business of another, and injury does in fact result ... Therefore, the essential elements of this tort are somewhat different from tortious interference with contract. The remedy for the tort is damages, and the plaintiff must also show (1) a loss, and (2) that defendant's conduct caused the loss. Prosser & Keeton, The Law of Torts, § 130, 141 (5th ed. Supp.1988).

Cenac, 609 So.2d at 1271 (emphasis in original). According to Cenac, this Court intended there be different elements for interference with business relations and interference with contract, but in a later case this Court set out the same four elements for interference with a business relationship that apply to the separate tort of interference with contract. MBF Corp. v. Century Business Communications, Inc., 663 So.2d 595, 598 (Miss.1995); See also Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 328 (Miss.1992) (identical elements applicable to tort of interference with prospective business advantage and tort of...