Sloan v. Sax

• Decision Date: 31 March 1987
• Docket Number: No. 86-1648,86-1648
• Citation: 12 Fla. L. Weekly 890,505 So.2d 526
• Parties: 12 Fla. L. Weekly 890 Leroy H. SLOAN, Appellant, v. Sidney SAX, Appellee.
• Court: Florida District Court of Appeals

Page 526

505 So.2d 526

12 Fla. L. Weekly 890

Leroy H. SLOAN, Appellant, v. Sidney SAX, Appellee.

No. 86-1648.

District Court of Appeal of Florida,

Third District.

March 31, 1987.

Rehearing Denied May 4, 1987.

Steel, Hector & Davis and Thomas R. Julin and Andrew Rosenblatt, Miami, for appellant.

Frazier Marks, for appellee.

Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from the dismissal with prejudice of Sloan's counterclaim charging that Sax unlawfully interfered with the contractual relationship existing between Sloan's precedessor in interest and Ryder System, Inc. ¹ , ² The dismissal was predicated upon a finding that "by its express allegations the Counter-Claim shows that Sax was not a third party to the employment relationship between Ryder System, Inc. and Sloan's assignor, Mike Sloan, Inc." We reverse the amended order dismissing the counterclaim and remand the cause for further proceedings.

The counterclaim in question alleges in pertinent part ³ that Mike Sloan, Inc. is an advertising agency headquartered in Miami. In 1974, Mike Sloan, Inc. entered into a contract with Ryder which provided that Ryder would exclusively employ Mike Sloan, Inc. as its advertising agency. For more than nine years, Mike Sloan, Inc. did in fact act as the exclusive advertising agency for Ryder System, Inc. and its successor, Ryder Truck Rental, Inc., in the course of this employment earning substantial commissions for the development and placement of advertisements promoting Ryder. In July 1983, Ryder notified the agency that their contractual relationship was terminated.

The counterclaim also reveals that throughout the entire period of the contract between the ad agency and Ryder, Ryder's advertising director was the plaintiff, Sidney M. Sax. Significantly, it further alleges that Sax willfully and wantonly induced Ryder to terminate its contract with the ad agency

"because of his personal ill will and hatred of Mike Sloan, Inc. and the officers, employees and agents of Mike Sloan, Inc. and not because of any good faith belief that the breach of contract would be in the interest of Ryder"

and that

"[Sax's] inducement of the breach of contract was harmful to Ryder. Furthermore, the inducement of the breach was outside of the scope of Sax's responsibilities as advertising director of Ryder." (emphasis supplied).

The trial court obviously concluded that the express allegation of the counterclaim that Sax was Ryder's advertising director when Ryder fired the ad agency constituted an insuperable obstacle to Sloan's claim that Sax unlawfully interfered with the contractual relationship between the ad agency and Ryder. In this respect, the trial court was in error.

An amalgam of Florida cases teaches that the elements of the tort of unlawful interference with a business relationship are (1) the existence of a business relationship under which the claimant has legal rights; (2) the defendant's knowledge of the relationship; (3) an intentional and unjustified interference with the relationship (4) by a third party; and (5) damages to the claimant caused by the interference. See Tamiami Trail Tours v. Cotton, 463 So.2d 1126 (Fla.1985); Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2d DCA 1983); Berenson v. World Jai-Alai, 374 So.2d 35 (Fla. 3d DCA 1979). Plainly, Sloan's counterclaim adequately alleges the first, second, and fifth elements; and his allegation that Sax acted out of ill will and hatred is more than sufficient to allege the third element. Muller v. Stromberg Carlson Corp., 427 So.2d at 271. But, because an allegation that Sax was maliciously motivated does not by itself mean that Sax acted outside the scope of his employment, see id.; West v. Troelstrup, 367 So.2d 253 (Fla. 1st DCA 1979), some further allegation is required to show that Sax, although Ryder's employee, was not entitled to the protection usually afforded to persons acting in the interest of their employers. See Scussel v. Balter, 386 So.2d 1227, 1228 (Fla. 3d DCA 1980) ("the privilege afforded an agent who ... gives 'honest advice' that it is in his principal's best interest to breach an existing relationship" is not available where the agent acts solely with ulterior purposes and the advice is not in the principal's best interest). Where, as here, Sloan alleged that Sax was not acting on Ryder's behalf--indeed, was acting to Ryder's detriment--when he induced Ryder to terminate its contract with the ad agency, the requirement that the interference be by a third party is satisfied. Cf. Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981)...