HAVILAH REAL PROPERTY SERVICES, LLC v. VLK, LLC ( 2015 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    Nos. 12-CV-403 & 12-CV-542
    HAVILAH REAL PROPERTY SERVICES, LLC,
    APPELLANT/CROSS-APPELLEE,
    v.
    VLK, LLC, ET AL.,
    APPELLEES/CROSS-APPELLANTS.
    Appeals from the Superior Court
    of the District of Columbia
    (CAB-2474-08)
    (Hon. Todd E. Edelman, Trial Judge)
    (Argued September 19, 2013                                Decided January 29, 2015)
    Eric M. Rome, with whom June L. Marshall was on the brief, for
    appellant/cross-appellee.
    William J. Carter for appellees/cross-appellants.
    Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge,
    and NASH, Associate Judge of the Superior Court.*
    BLACKBURNE-RIGSBY, Associate Judge: This case presents a question of
    first impression in the District of Columbia: Whether the filing of a notice of lis
    *
    Sitting by designation pursuant to D.C. Code § 11-707 (2001).
    2
    pendens 1 in connection with litigation over real property is protected by an
    absolute or a conditional privilege as a defense to a claim of tortious interference
    with contract and/or prospective advantage. Factually, this case is essentially
    about a bitter dispute between two companies over the right to purchase certain
    real properties for investment purposes, stemming, in large part, from the personal
    rivalry between the companies‘ owners over the attention of one man. Vicky Lynn
    Karen operated a business venture with her former romantic partner LaMar
    Carlson (―Carlson‖), entitled VLK, LLC (―VLK‖), to purchase distressed
    properties in the District of Columbia for resale to developers. At some point,
    Carlson started dating Joan A. Alderman (―Alderman‖), who also owned a
    company, Havilah Real Property Services, LLC (―Havilah‖), which was engaged
    in essentially the same type of business as VLK. Karen believed that Carlson was
    conspiring with Alderman to buy property that Karen was interested in having
    VLK purchase, thereby, in Karen‘s view, hurting VLK‘s business interests to the
    benefit of Havilah and Alderman.
    1
    A lis pendens notice is ―designed to enable interested third parties to
    discover the existence and scope of pending litigation affecting the title to or
    asserting a mortgage, lien, security interest, or other interest in real property.‖
    Heck v. Adamson, 
    941 A.2d 1028
    , 1029-30 (D.C. 2008) (citations, internal
    quotation marks, and brackets omitted).
    3
    Karen sued Carlson, Alderman, and Havilah in Maryland in connection with
    some of the business deals with which she claimed Carlson and Alderman had
    interfered. As part of the Maryland lawsuit, Karen filed lis pendens on fifty-one
    Havilah-owned properties in the District of Columbia. Karen ultimately lost the
    Maryland lawsuit against Alderman and Havilah, but won against Carlson for
    breaching his fiduciary duty to VLK. The case before us followed in the aftermath
    of the Maryland lawsuit when Havilah filed suit against VLK and Karen2 in D.C.
    Superior Court, alleging that the lodging of lis pendens on thirty-one of the fifty-
    one Havilah-owned properties at issue in the Maryland lawsuit was in bad faith and
    without probable cause, and amounted to malicious prosecution and tortious
    interference with contract and/or prospective advantage.3
    VLK filed motions for summary judgment on Havilah‘s claims of malicious
    prosecution and tortious interference. The trial judge granted summary judgment
    on the malicious prosecution claim, concluding that the filing of thirty-one lis
    pendens is not a recognized ―special injury‖ necessary to maintain that cause of
    2
    For purposes of this opinion, in general, appellees/cross-appellants VLK,
    LLC and Karen are collectively referred to as ―VLK.‖
    3
    Havilah‘s second amended complaint also alleged that the filings of lis
    pendens constituted an abuse of process, but that claim was abandoned prior to
    trial.
    4
    action.   However, the trial judge denied summary judgment on the tortious
    interference claim, determining that such filings were only ―conditionally
    privileged‖ in the District of Columbia and did not act as a complete bar against
    such a claim. Consequently, the jury rendered a verdict in favor of Havilah on the
    sole remaining claim and awarded damages of $602,942.
    Both parties appealed. Havilah seeks reversal of the malicious prosecution
    decision, claiming that the filing of thirty-one lis pendens satisfied the ―special
    injury‖ element.    VLK filed a cross-appeal, seeking reversal of the tortious
    interference decision on the basis that lis pendens are protected by an absolute
    privilege, thereby protected from suit unconditionally. Alternatively, VLK argues,
    inter alia, that Havilah failed to present sufficient evidence that VLK had
    interfered with any of its specific business relationships, and that Havilah‘s
    damages resulting from the filing of lis pendens were incorrectly calculated.4
    As we are presented with an issue of first impression in VLK‘s cross-appeal,
    we decide to first address VLK‘s arguments before analyzing Havilah‘s sole
    4
    Additionally, VLK claims the trial court erred in admitting substantial
    amounts of hearsay into evidence and that Havilah failed to mitigate damages as a
    matter of law. See infra note 8.
    5
    contention. Based on the forthcoming reasons, we affirm the trial court‘s various
    decisions and the jury‘s verdict and award.
    We hold that, in the District of Columbia, the act of engaging in litigation is
    conditionally privileged against a claim of tortious interference with contract
    and/or prospective advantage, meaning that it is a complete defense to such a claim
    if the defendant can establish that the prior litigation asserted a legally protected
    interest in good faith. If the prior litigation was pursued in good faith and therefore
    privileged, then the filing of a lis pendens ancillary to that litigation is also
    privileged. The converse is also true; if the litigation was not pursued in good
    faith, then the lis pendens is likewise not privileged. In other words, even if the
    jury is persuaded that an individual lis pendens may have been filed, in whole or in
    part, based on improper motives independent from the litigation, there can be no
    liability if the underlying lawsuit itself was asserted in good faith. In this case,
    whether VLK filed the Maryland lawsuit in good faith was a factual question for
    the jury to decide, and the jury was entitled to conclude that the Maryland lawsuit
    was not pursued in good faith and therefore not a privileged act, and thus that VLK
    was liable for damages proximately caused by the prior litigation, including
    damages occasioned by the filing of the thirty-one lis pendens related to that
    litigation.
    6
    In addition, we conclude that there was sufficient evidence in the record that
    VLK‘s filings of notice of lis pendens interfered with Havilah‘s prospective
    business, and that the trial court correctly instructed the jury on how to calculate
    Havilah‘s damages. And, as to Havilah‘s appeal, we hold that the filing of thirty-
    one lis pendens in this case does not meet the high ―special injury‖ standard
    needed to maintain a claim of malicious prosecution.
    I.    Factual Background
    In 2004, Vicky Lynn Karen formed VLK, LLC. LaMar Carlson, with whom
    she had previously been in a romantic relationship, was a minority member in the
    company. VLK purchased distressed properties in Southeast Washington, D.C.,
    and sold them to developers for profit. Between 2005 and 2006, VLK purchased
    five properties, two of which were formerly owned by a defunct company named
    FABCO Investment Company (―FABCO‖).5 Karen claimed that VLK planned to
    purchase more FABCO properties, and that she and Carlson discussed a list of
    potential FABCO properties to purchase on many occasions.
    5
    Although FABCO was a defunct company, VLK was able to purchase the
    two properties from the surviving widow of the last known officer and stockholder
    of FABCO, Anna Bulls.
    7
    In 2006, the business relationship between Karen and Carlson broke down
    and VLK filed suit against Carlson for, among other things, breach of fiduciary
    duty and conversion (―Carlson lawsuit‖). Specifically, Karen alleged that Carlson
    refused to transfer title to five promissory notes that encumbered one of VLK‘s
    properties to VLK after having acted on VLK‘s behalf in negotiating assignment of
    those notes. Karen and Carlson subsequently entered into a settlement agreement,
    whereby Carlson agreed not to seek or undertake any efforts to directly or
    indirectly purchase real property within specifically marked regions (―Restricted
    Area‖) without providing VLK the ―corporate opportunity‖6 to first purchase the
    6
    The ―corporate opportunity doctrine‖ provides that:
    [I]f there is presented to a corporate officer or director a
    business opportunity which the corporation is financially
    able to undertake, is, from its nature, in the line of the
    corporation‘s business and is of practical advantage to it,
    is one in which the corporation has an interest or a
    reasonable expectancy, and, by embracing the
    opportunity, the self-interest of the officer or director will
    be brought into conflict with that of [the] corporation, the
    law will not permit [the officer or director personally] to
    seize the [business] opportunity. . . . And, if, in such
    circumstances, the interest[s] of the corporation are
    betrayed, the corporation may elect to claim all of the
    benefits of the transaction for itself, and the law will
    impress a trust in favor of the corporation upon the
    property, interests, and profits so acquired.
    Robinson v. R & R, Inc., 
    943 F. Supp. 18
    , 21 (D.D.C. 1996) (emphasis added)
    (quoting Guth v. Loft, 
    5 A.2d 503
    , 511 (Del. 1939)).
    8
    property. The settlement agreement was memorialized as an amendment to VLK‘s
    operating agreement and the Carlson lawsuit was dismissed without prejudice.
    In early 2007, Carlson became romantically involved with Alderman, the
    principal member of Havilah. Havilah first purchased properties — lots which
    VLK had previously sought to purchase — in January 2007.            By mid-2007,
    Havilah had rapidly purchased about fifty properties, most of them FABCO
    properties. Karen soon learned of Carlson‘s romantic relationship with Alderman,
    and suspected that Carlson and Alderman were also working together in a business
    capacity to purchase properties for Havilah using business strategies that she and
    Carlson had previously devised for VLK. Karen claimed that she entered into an
    oral agreement with Carlson, whereby he agreed to resume his former role in VLK.
    In exchange, Karen agreed to: ―(1) dismiss the [Carlson lawsuit] with prejudice;
    (2) grant Carlson signature authority on VLK‘s bank account; and (3) rescind the
    Amendment [limiting Carlson‘s ability to independently purchase properties within
    the Restricted Area] to the Operating Agreement.‖        Karen later discovered,
    however, that Carlson had not satisfactorily maintained his end of the bargain,
    because he transferred $10,000 from VLK‘s account to Havilah in consideration
    for a certain piece of property without Karen‘s knowledge or consent.
    9
    In November 2007, VLK initiated the Maryland lawsuit against Havilah,
    Alderman, and Carlson, based on Carlson‘s transfer of the $10,000, and the belief
    that Havilah and Carlson had bought various properties that VLK intended to
    purchase, including FABCO properties, based on previously developed business
    strategies for VLK. VLK claimed these actions amounted to, inter alia, conspiracy
    and tortious interference, denying VLK the corporate opportunity to first purchase
    the properties. In connection with the Maryland Lawsuit, VLK filed lis pendens on
    fifty-one Havilah properties located in the District of Columbia.
    During the pendency of the Maryland lawsuit, Havilah filed the instant
    action against VLK in Superior Court, along with an emergency motion to cancel
    and release the lis pendens on its properties. The motions judge denied Havilah‘s
    motion to cancel and release the lis pendens and stayed the proceedings pending
    the outcome of the Maryland lawsuit. In February 2009, the jury in the Maryland
    lawsuit found in favor of Havilah and Alderman on all counts. However, the jury
    found that Carlson had breached his fiduciary duty to VLK. The lis pendens were
    released a few days later.
    Havilah subsequently recommenced the instant action against VLK for
    malicious prosecution and tortious interference, claiming that the filing of lis
    10
    pendens on thirty-one Havilah-owned properties pursuant to the Maryland lawsuit
    was done in bad faith, motivated by Karen‘s romantic feelings for Carlson and
    jealousy over his romantic relationship with Alderman, and that these filings
    caused the properties to lose value, deterred potential buyers, and placed the
    properties at risk of foreclosure. The thirty-one lis pendens at issue concern
    properties (1) outside the Restricted Area limitation placed on Carlson, (2) inside
    the Restricted Area but acquired after VLK had agreed to release Carlson from the
    restraint, or (3) never identified by VLK as properties of interest.
    VLK filed motions for summary judgment. As to malicious prosecution,
    VLK argued that Havilah failed to support the necessary element of ―special
    injury‖ for the claim to survive as a matter of law. As to tortious interference,
    VLK claimed that the notices of lis pendens were absolutely privileged. VLK also
    argued that Havilah failed to mitigate its damages by rejecting VLK‘s offer to
    release the lis pendens if Havilah agreed to enter into an escrow agreement with it
    for proceeds from the sale of any property pending final resolution of the Maryland
    lawsuit.
    In two detailed written orders, the trial court granted VLK‘s motion for
    summary judgment as to malicious prosecution, but denied its motions as to
    11
    tortious interference. The trial court determined that Havilah failed to demonstrate
    that the filing of thirty-one lis pendens constituted a ―special injury‖ to survive
    summary judgment on the malicious prosecution count. First, the court found that
    lis pendens are intrinsic to lawsuits over real property interests and, thus, cannot be
    a ―special injury‖ as this court has previously defined the term. See Ammerman v.
    Newman, 
    384 A.2d 637
    , 639 (D.C. 1978) (defining ―special injury‖ as an injury
    ―which would not necessarily result in suits to recover for like causes of action.‖).
    Second, the trial court determined that the damage suffered by the filing of lis
    pendens, namely, diminution of value and difficulty in selling the properties,
    seemed ―indistinguishable from the ‗loss of income‘ that [this court] has
    specifically excluded from its definition of special injury.‖ Lastly, the trial court
    found that it did not matter whether one or thirty-one lis pendens were filed,
    because a finding of special injury is not predicated on the number of filings.
    The trial court came to a different conclusion on tortious interference.
    Regarding the argument that lis pendens were ―absolutely privileged,‖ the trial
    court found that, although there was no case law directly on point in the District of
    Columbia, it appeared from our case law on related issues that we follow the
    ―minority rule‖ that such filings are only conditionally privileged, meaning that a
    tortious interference claim can be maintained in limited instances where the
    12
    underlying litigation was filed in bad faith.7 Regarding whether Havilah mitigated
    damages, the trial court determined that Havilah‘s refusal to enter into a proposed
    escrow agreement with VLK in exchange for the release of lis pendens was not
    unreasonable as a matter of law, given that the escrow account gave some control
    of Havilah‘s properties to VLK by requiring VLK‘s approval of Havilah‘s land
    deals. Further, the trial court concluded that, viewed in the light most favorable to
    Havilah as required by the summary judgment standard, Havilah undertook
    sufficient measures to mitigate damages by filing motions to cancel the lis pendens
    and at least engaging in negotiations over the proposed escrow account.
    Consequently, Havilah‘s sole remaining claim of tortious interference went
    to trial. At trial, Havilah introduced Karen as a hostile witness, and presented
    7
    The trial court looked to three primary cases. Specifically, in Casco
    Marina Dev., LLC v. District of Columbia, 
    834 A.2d 77
    , 84 (D.C. 2003), this court
    cited the language from the Restatement (Second) of Torts in formulating the
    elements of tortious interference. The Restatement, in turn, adopts the ―minority
    rule‖ that such claims may be based on prior civil litigation instituted in bad faith.
    See Restatement (Second) of Torts § 767 cmt. c. (1979). In Bowhead Information
    Technology Servs., LLC v. Catapult Technology, Ltd., 
    377 F. Supp. 2d 166
    , 176
    (D.D.C. 2005), the federal court concluded that it believed District of Columbia
    courts follow the Restatement and would, therefore, hold that ―colorable suits may
    give rise to a tortious interference claim in the limited circumstance where the
    defendant brought or threatened to bring suit with the sole intention to harass.‖
    Lastly, in Beard v. Edmondson & Gallagher, 
    790 A.2d 541
    , 549 (D.C. 2002), in
    dicta, this court appeared to note that a tortious interference action based on the
    filing of a lis pendens notice was permissible if timely filed.
    13
    testimony from Arthur Konopka, VLK‘s former attorney who helped it acquire
    distressed properties, to testify as an expert witness regarding the legal effects of
    lis pendens on real property. Gregory C. Syfax, a real estate appraiser, testified as
    an expert witness on behalf of Havilah regarding his calculations of lost value to
    Havilah‘s properties that were subject to lis pendens. Carlson testified and denied
    providing Alderman with real estate advice on the properties at issue or
    confidential information secured from VLK. Lavrne Robinson, Havilah‘s real
    estate agent on many of the properties at issue, acknowledged that there was
    ―active interest in virtually all of the properties‖ — including nine properties with
    sales contracts — until the filing of lis pendens, and that he continued to try to sell
    the properties even after the lis pendens were filed to no avail. Robinson claimed
    that once he made potential buyers aware of the lis pendens on a property, the
    buyers lost interest in ―moving forward until the lis pendens was removed.‖ For
    example, in one instance, the property was scheduled for closing but did not go
    through after the lis pendens was filed.       Jean-Marie Sylla, Havilah‘s primary
    attorney during the Maryland lawsuit, testified that he advised Havilah against
    entering into an escrow agreement with VLK.
    Alderman corroborated much of Robinson‘s testimony, stating that she was
    successful in marketing her properties prior to the filings of lis pendens. In fact,
    14
    she claimed that by November 2007, she had sales contracts ―on almost all‖ of her
    properties, and that the market was in a ―frenzy‖ as people were buying properties
    at ―an alarming rate.‖ However, after the lis pendens were filed, those offers fell
    through and interest in the properties diminished. Alderman claimed that the
    filings caused the properties to be ―tied up‖ and unsellable, even though she
    continued to market them. Lastly, over objection, Havilah proffered numerous
    exhibits into evidence for the limited purpose of demonstrating Havilah‘s business
    expectancies in the properties at issue and its efforts to mitigate damages after the
    lis pendens were filed. The trial court gave a limiting instruction prohibiting the
    jury from considering the facts contained within the documents for the truth of the
    matter asserted. These exhibits included, inter alia, emails between prospective
    buyers and realtors and Havilah, listing agreements, draft sales contracts,
    appraisals, internal notes, and draft settlement agreements. In its defense, VLK
    presented testimony from Oakleigh J. Thorne, another real estate appraiser, an
    expert witness who refuted Syfax‘s appraisal of the change in value of Havilah‘s
    properties, and Ronald Early, VLK‘s attorney during the Maryland lawsuit,
    regarding his good faith basis for filing that lawsuit.
    At the end of the nearly two-week-long trial, the trial court gave the
    following jury instruction regarding a claim of tortious interference with
    15
    prospective advantage: ―The law prohibits one from maliciously interfering with
    the business rights of another. Business expectancies, which are commercially
    reasonable to anticipate are considered to be property, and therefore, are protected
    from unjustified interference.     These expectancies need only be probable and
    include future contracts and lost opportunities to obtain customers.‖ (Emphasis
    added). With regard to the privilege defense, the trial court instructed the jury that:
    [I]f you find the plaintiff has established the elements of
    the claim of interference with [pro]spective business
    advantage by a preponderance of the evidence, the
    defendants may avoid liability by proving that the
    interference was legally justified or privileged.
    In this case[,] the conduct is legally justified and/or
    privileged if defendants can establish with respect to the
    31 lots at issue in this matter that they believed that they
    had a good faith basis for asserting a [bona fide] claim.
    In other words, the defendants can demonstrate that their
    interference was justified and/or privileged by showing
    that they had a good faith belief that they had a legally
    protected interest that existed as of the time of the alleged
    interference, meaning that at the time the lis pendens
    were filed, and that their action[s] were taken to protect
    that interest.
    Lastly, on the issue of damages calculation, the trial court instructed the jury that:
    The measure of damages for the wrongful filing of a lis
    pendens is the difference between the fair market value
    of the property at the time of the filing of the lis pendens
    and its fair market value at the time of its release.
    In arriving at a fair market value you may consider the
    expert testimony, the contracts that [Havilah] Real
    16
    Properties Services, LLC, [had] in place at or around the
    time of the lis pendens filing and any other evidence
    and/or testimony that you deem relevant and persuasive.
    You may also award the plaintiff damages to compensate
    it for other expenses that you may [find] that it [incurred]
    as a result of the lis pendens filings.
    After three days of jury deliberation, the jury rendered a verdict in favor of Havilah
    and awarded damages of $602,942. These appeals followed.
    II.    VLK’s Appeal
    VLK presents four arguments on appeal, two of which merit full discussion.8
    Primarily, VLK argues that the trial court erred in denying summary judgment on
    8
    We dispose of VLK‘s two other claims summarily. VLK argues that the
    trial court erred in admitting Havilah‘s exhibits into evidence because these
    documents constituted hearsay and were prejudicial. VLK also claims that the trial
    court plainly erred in failing to examine each exhibit individually prior to
    admission. Based on the record, we are satisfied with the trial court‘s reasoning in
    admitting the documents into evidence, i.e., for the purposes of proving Havilah‘s
    business expectancies and demonstrating that Havilah tried to mitigate its damages,
    rather than for the truth of the matter asserted, and that, consequently, the
    documents did not constitute inadmissible hearsay. See Puma v. Sullivan, 
    746 A.2d 871
    , 875-76 (D.C. 2000). Further, any potential prejudice was mitigated by
    the trial court‘s jury instruction on how these exhibits were to be analyzed. See
    Sherrod v. United States, 
    478 A.2d 644
    , 659 (D.C. 1984) (―The jury is presumed,
    unless the contrary appears, to follow the [trial judge‘s] instructions.‖). Lastly,
    VLK lacks support for its argument that the trial court was required to, sua sponte,
    review each exhibit for potential evidentiary issues prior to its admission.
    (continued . . .)
    17
    the tortious interference claim because the filings of lis pendens in connection with
    the Maryland lawsuit were absolutely privileged. VLK also argues that, even if the
    lis pendens were not absolutely privileged, Havilah presented no evidence that
    VLK interfered with any specific business relationship, and that the method for
    calculating damages was speculative.
    A. Privilege of Lis Pendens Filings as a Defense to a Claim of Tortious
    Interference with Contract and/or Prospective Advantage
    We review the trial court‘s grant of summary judgment de novo.              See
    Woodland v. District Council 20, 
    777 A.2d 795
    , 798 (D.C. 2001). ―In reviewing a
    (. . . continued)
    Accordingly, there was no error, much less plain error, on the part of the trial court
    in not doing so.
    VLK also claims that Havilah‘s refusal to enter into an escrow agreement
    with VLK constituted a failure to mitigate damages as a matter of law. This
    argument again lacks merit. See generally Trs. of Univ. of Dist. of Columbia v.
    Vossoughi, 
    963 A.2d 1162
    , 1178 (D.C. 2009) (―[T]he duty to mitigate damages,
    bars recovery for losses suffered by a non-breaching party . . . that could have been
    avoided by reasonable effort and without risk of substantial loss or injury.‖)
    (citations and internal quotation marks omitted). Generally ―[w]hat is a reasonable
    effort [to mitigate damages] is a question of fact,‖ Howard Univ. v. Lacy, 
    828 A.2d 733
    , 739 n.8 (D.C. 2003) (citations and internal quotation marks omitted), and thus
    for the jury to decide. In any event, we cannot say that Havilah‘s actions in filing
    the motion to cancel the lis pendens, continuing to market the properties after the
    filings, and engaging in negotiations with VLK were unreasonable as a matter of
    law. See Nader v. de Toledano, 
    408 A.2d 31
    , 42 (D.C. 1979).
    18
    trial court order granting summary judgment, we conduct an independent review of
    the record, and [the] standard of review is the same as the trial court‘s standard in
    considering the motion for summary judgment.‖            Joeckel v. Disabled Am.
    Veterans, 
    793 A.2d 1279
    , 1281 (D.C. 2002). Summary judgment is granted if
    there are no genuine issues as to any material fact and the moving party is entitled
    to judgment as a matter of law. 
    Id. The party
    opposing the motion must at a
    minimum present enough evidence to make out a prima facie case in support of its
    claim. 
    Id. at 1281-82.
    The District of Columbia has not conclusively resolved the question of
    whether the filing of a notice of lis pendens ancillary to litigation over real
    property interests is protected by an absolute or a conditional privilege against a
    claim of tortious interference with contract and/or prospective advantage; thus, in
    deciding this issue, our review is de novo. See In re Greenspan, 
    910 A.2d 324
    , 335
    (D.C. 2006). Appellate courts across the country, as well as our trial court, are
    divided. Compare Westfield Dev. Co. v. Rifle Inv. Assocs., 
    786 P.2d 1112
    , 1117-
    18 (Col. 1990) (en banc) (adopting the minority rule that lis pendens are
    conditionally privileged), with Albertson v. Raboff, 
    295 P.2d 405
    , 409 (Cal. 1956)
    (adopting the majority rule that lis pendens are absolutely privileged).         See
    Georgetown Park Assocs. II, Ltd. P’ship v. Eastbanc, Inc., No. 06-CV-8154, Order
    19
    Granting Defendants‘ Partial Mot. Dismiss (D.C. Super. Ct. Jul. 30, 2007)
    (concluding that absolute privilege, rather than conditional privilege, applied to the
    filing of lis pendens).
    The majority of jurisdictions have concluded that the filing of lis pendens is
    protected by an absolute privilege, so that any subsequent lawsuit for tortious
    interference based on such filings is barred as a matter of law, even if the lawsuit
    underlying the lis pendens filings was asserted in bad faith or with malice. 9
    ―Consequently, neither [the plaintiff‘s] motive nor evidence tending to show
    motive is relevant‖ in jurisdictions that adopt the absolute privilege rule; rather, the
    ―only relevant inquiry is whether the lis pendens notices bore a reasonable relation
    to the action filed.‖ Birdsong v. Bydalek, 
    953 S.W.2d 103
    , 114 (Mo. Ct. App.
    1997) (emphasis added). On the other hand, a few states have concluded that the
    filing of lis pendens is only conditionally or ―qualifiedly‖ privileged, meaning that
    an action for tortious interference arising from such filings are generally barred,
    9
    See, e.g., Manders v. Manders, 
    897 F. Supp. 972
    , 978 (S.D. Tex. 1995);
    Zamarello v. Yale, 
    514 P.2d 228
    , 230 (Alaska 1973); Woodcourt II, Ltd v.
    McDonald Co., 
    173 Cal. Rptr. 836
    , 839 (Cal. Ct. App. 1981); Procacci v. Zacco,
    
    402 So. 2d 425
    , 427 (Fla. Dist. Ct. App. 1981); Ringier Am., Inc. v. Enviro-
    Technics, Ltd., 
    673 N.E.2d 444
    , 447 (Ill. App. Ct. 1996); Powell v. Stevens, 
    866 N.E.2d 918
    , 921 (Mass. App. Ct. 2007); 
    Birdsong, supra
    , 953 S.W.2d at 13-14;
    Lone v. Brown, 
    489 A.2d 1192
    , 1197 (N.J. Super. App. Div. 1985); Superior
    Constr., Inc. v. Linnerooth, 
    712 P.2d 1378
    , 1381-82 (N.M. 1986).
    20
    but can be maintained if the underlying litigation was brought in bad faith or with
    malice.10
    VLK makes three arguments in support of its contention that we should
    adopt the ―absolute privilege‖ rule: (1) a majority of states have adopted the
    absolute privilege rule; (2) public policy supports the adoption of an absolute
    privilege rule because publications made during the course of a judicial proceeding
    already enjoy an absolute privilege from later claims of defamation; and (3) the
    absolute privilege rule is in conformance with this jurisdiction‘s lis pendens statute
    because it already provides remedies for filings made in bad faith.
    We disagree and conclude that our adoption of the Restatement‘s
    formulation of the claim of tortious interference compels us to hold that the filing
    of a notice of lis pendens is only protected by a conditional privilege in the District
    of Columbia. If the litigation underlying the lis pendens filing was pursued in
    good faith, then both it and any notice of lis pendens filed in connection with that
    action are privileged and thus cannot form the basis for any valid claim of tortious
    10
    See, e.g., Warren v. Bank of Marion, 
    618 F. Supp. 317
    , 325 (W.D. Va.
    1985); Westfield Dev. 
    Co., supra
    , 786 P.2d at 1117-18; Belliveau Bldg. Corp. v.
    O’Coin, 
    763 A.2d 622
    , 630 (R.I. 2000); Kensington Develop. Corp. v. Israel, 
    407 N.W.2d 269
    , 270 (Wis. Ct. App. 1987).
    21
    interference. If the underlying litigation is found not to have been pursued in good
    faith, then no privilege attaches to the underlying litigation, and a defendant can be
    liable for all damages proximately caused by that litigation, including damages
    occasioned by the filing of lis pendens related to that litigation. Our acceptance of
    the conditional privilege rule comports with other courts that have similarly
    adopted the Restatement. We also believe that it is the fairer rule because it
    provides an adequate remedy to parties that have suffered harm as a result of
    litigation over real property interests filed in bad faith.11
    Elements of tortious interference with contract and/or prospective advantage
    are derived from the Restatement. To make out a prima facie case of tortious
    interference, the plaintiff must demonstrate: ―(1) existence of a valid contractual or
    other business relationship; (2) the defendant‘s knowledge of the relationship; (3)
    intentional interference with that relationship by the defendant; and (4) resulting
    11
    Further, we note that because infra Part III we hold that a party cannot
    maintain a claim for malicious prosecution based on the filing of lis pendens in a
    prior litigation, a party should have some avenue for relief in the District of
    Columbia for lis pendens filings made in connection with litigation pursued in bad
    faith. Given our precedent and adoption of the Restatement, we conclude that the
    better recourse in the District of Columbia for such an aggrieved party is via a
    claim of tortious interference. Cf. 
    Albertson, supra
    , 295 P.2d at 410 (concluding
    that even though a lis pendens filing was absolutely privileged against a
    disparagement of title claim, damages flowing from the lis pendens may still be
    cognizable in the context of a claim of malicious prosecution).
    22
    damages.‖    Onyeoziri v. Spivok, 
    44 A.3d 279
    , 286-87 (D.C. 2012) (citing
    Restatement (Second) of Torts § 766 (1979)); see also Casco Marina Develop.,
    LLC, supra note 
    7, 834 A.2d at 84
    (―The elements of tortious interference with
    prospective business advantage mirror those of interference with contract.‖).
    Unlike the common law, the Restatement formulates the claim ―in terms of
    whether the interference [was] improper or not, rather than in terms of whether
    there was a specific privilege to act in the manner specified.‖ See Restatement
    (Second) of Torts § 767 cmt. b (1979) (emphasis added). Thus, the ―motive‖
    behind the interference is the key consideration in determining whether recovery
    under the tort is available. See Sorrells v. Garfinckel’s, Brooks Brothers, Miller &
    Rhoads, Inc., 
    565 A.2d 285
    , 290 (D.C. 1989) (adopting Restatement § 767). In
    fact, Restatement (Second) of Torts § 773 (1979), explicitly recognizes as an
    affirmative defense only interfering conduct amounting to a ―bona fide claim,‖ i.e.,
    [o]ne who, by asserting in good faith a legally protected
    interest of his own or threatening in good faith to protect
    the interest by appropriate means, intentionally causes a
    third person not to perform an existing contract or enter
    into a prospective contractual relation with another does
    not interfere improperly with the other‘s relation if the
    actor believes that his interest may otherwise be impaired
    or destroyed by the performance of the contract or
    transaction.
    (Emphasis added). Consequently, contrary to the majority rule, the Restatement
    necessarily recognizes only a ―conditional privilege‖ to the filing of litigation and
    23
    acts taken ancillary to such litigation, such as lis pendens filings. See Restatement
    § 767 cmt. c.
    Consistent with our case law and the Restatement‘s construction of the legal
    justification and privilege defense, we hold that the recordation of lis pendens
    ancillary to litigation over real property interests is only protected by a conditional
    privilege against a claim of tortious interference with contract and/or prospective
    advantage in the District of Columbia.12 This means that a defendant may avoid
    liability if he or she can establish that the notice of lis pendens was filed pursuant
    to litigation that was initiated in good faith. See 
    Sorrells, supra
    , 565 A.2d at 290
    (observing that under the Restatement § 766, claims of legal justification are
    ―vitiated‖ if malice is proved); see also NCRIC, 
    Inc., supra
    , 957 A.2d at 901;
    
    Onyeoziri, supra
    , 44 A.3d at 288; Westfield Develop. 
    Co., supra
    , 786 P.2d at 1118
    (―[T]he interferer may still escape liability by establishing, as an affirmative
    defense, that he or she was asserting a bona fide claim.‖). Whether the underlying
    litigation was undertaken in good faith is a question of fact for the jury to decide.
    See Oparaugo v. Watts, 
    884 A.2d 63
    , 82 (D.C. 2005); see also 
    Onyeoziri, supra
    ,
    44 A.3d at 290.
    12
    It is also worth mentioning that, although dicta, this court has previously
    indicated that a tortious interference claim based on the filing of lis pendens in bad
    faith could be maintained. See Beard, supra note 
    7, 790 A.2d at 549
    .
    24
    Our conclusion that lis pendens are only conditionally privileged in the
    District of Columbia is in conformance with other jurisdictions that have similarly
    adopted the Restatement. For example, like us, the Colorado Supreme Court
    concluded that a filing of lis pendens was only conditionally privileged based, in
    large part, on Colorado‘s adoption of the Restatement, stating that a privilege
    asserted as a defense to a claim of tortious interference must be made in good faith.
    See Westfield Dev. 
    Co., supra
    , 786 P.2d at 1118 (citing Restatement § 733)
    (―[W]here the means of alleged interference is the filing of lis pendens, we believe
    that a litigant asserting a bona fide claim has a privilege to interfere.‖) (emphasis
    added). Similarly, the Rhode Island Supreme Court concluded that a lis pendens
    filing is only protected by a conditional privilege and may be overcome upon a
    showing of ―actual malice.‖ See Belliveau Bldg. 
    Corp., supra
    note 
    10, 763 A.2d at 630
    (citing Restatement § 773).13 Conversely, jurisdictions that have not adopted
    the Restatement‘s formulation of the tort claim generally apply an absolute
    privilege rule to such filings. See generally Manders, supra note 
    9, 897 F. Supp. at 13
              See also See Guerdon Ind., Inc. v. Rose, 
    399 N.W.2d 186
    , 187-88 (Minn.
    Ct. App. 1987) (citing the Restatement in stating that a conditional privilege
    applied to the filing of a notice of lis pendens); McReynolds v. Short, 
    564 P.2d 389
    ,
    393 (Ariz. Ct. App. 1977) (same).
    25
    977 (concluding simply that ―[t]he privilege of legal justification is an affirmative
    defense to a tortious interference claim.‖).14
    VLK does point us to decisions from other jurisdictions explaining why, as a
    matter of policy, an absolute privilege should apply. In Albertson, a California
    case considered by many jurisdictions to be the ―premier‖ decision on this issue,
    the court concluded that lis pendens were ―clothed‖ with the same absolute
    privilege that blankets publications made during the course of judicial 
    proceedings. 295 P.2d at 408
    .15 See generally Pond Place Partners, Inc. v. Poole, 
    567 S.E.2d 881
    , 894 (S.C. Ct. App. 2002). The Massachusetts case Powell succinctly distilled
    Albertson and its progeny‘s reasoning for holding that an absolute privilege should
    apply to lis pendens filings, explaining that jurisdictions that have extended the
    14
    In one possible outlier case, Birdsong, the court concluded that lis
    pendens were absolutely privileged but also seemed to adopt the Restatement‘s
    definition of tortious 
    interference. 953 S.W.2d at 111
    , 115. However, it appears
    that the Missouri court did not also explicitly adopt Restatement § 733, which
    articulates the ―bona fide claim‖ conditional defense.
    15
    It is worth noting that, in California, Albertson‘s broad holding in favor of
    an absolute privilege rule for lis pendens filings has been ―somewhat limited or
    ‗partially abrogated‘‖ by statutory amendment. La Jolla Grp. II v. Bruce, 149 Cal.
    App. 4th 461, 473 (Cal. Ct. App. 2012). The amendment explicitly states that ―[a]
    recorded lis pendens is not a privileged publication unless it identifies an action
    previously filed with a court of competent jurisdiction which affects the title or
    right of possession of real property, as authorized or required by law.‖ 
    Id. (emphasis added)
    (quoting Cal. Civil Code § 47 (b)(4) (West 2005)).
    26
    absolute privilege rule have adopted or accepted one or more of the following
    rationales in doing so:
    (1) with few exceptions, any publication made in judicial
    proceedings enjoys an absolute privilege from
    subsequent claims of defamation; (2) the only purpose of
    recording a notice of lis pendens is to put prospective
    buyers on constructive notice of the pendency of the
    litigation; (3) the notice of lis pendens is purely
    incidental to the action in which it is filed, refers
    specifically to that action, and has no existence apart
    from that action; and (4) the recording of a notice of lis
    pendens is in effect a republication of the proceedings in
    the action and is, therefore, accorded the same absolute
    privilege as any other publication in that action.
    Powell, supra note 
    9, 866 N.E.2d at 921
    . Admittedly, the logic for concluding that
    lis pendens filings are absolutely privileged is not unpersuasive.16
    While we reject the ―absolute privilege‖ analytical framework that is set
    forth in this line of cases, our ruling today –– which makes the privilege status of a
    lis pendens filing dependent on the good faith basis of the underlying litigation ––
    vindicates many of the same concerns that provide the rationale for those
    decisions.   Lis pendens filings do serve a socially beneficial function in
    16
    Some courts, however, may not necessarily view a lis pendens filing as a
    communication made in the course of judicial proceedings. See Warren, supra
    note 
    10, 618 F. Supp. at 325
    (―such a notice can easily be viewed as an
    extrajudicial publication involving merely a private act, and not involving any
    function of the court, thus falling outside the scope of protection given to
    communications made in the course of judicial proceedings.‖).
    27
    safeguarding the rights of third parties. As a general rule, litigants should be
    incentivized to make such filings without fear of reprisal.        However, for the
    reasons set forth above, we see no reason to extend such protection, as many of the
    ―absolute privilege‖ jurisdictions appear to have done, to litigants who have
    initiated the underlying litigation in bad faith. In fact, this court has similarly
    concluded that publications made during the course of judicial proceedings are
    absolutely privileged from subsequent claims of defamation.           See 
    Oparaugo, supra
    , 884 A.2d at 79 (―Under this jurisdiction‘s rule, an attorney has an absolute
    privilege to publish defamatory matter concerning another in communications
    preliminary to a proposed judicial proceeding, or in the institution of, or during the
    course and as a part of, a judicial proceeding in which he [or she] participates as
    counsel, if it has some relation to the proceeding.‖) (brackets in original) (citations
    and internal quotation marks omitted). This recognition of an absolute privilege
    for judicial publications in the context of a defamation suit is based on the public
    policy of ―securing to attorneys as officers of the court the utmost freedom in their
    efforts to secure justice for their clients.‖ 
    Id. (quoting Restatement
    (Second) of
    Torts § 586 cmt. a).
    Even though we have never considered the privilege in the context of a
    tortious interference claim, we recognize that there is some tension with our
    28
    decision here that litigation and the ancillary filings of lis pendens are only
    conditionally privileged, given our prior recognition of an absolute privilege for
    publications made during the course of judicial proceedings for defamation. The
    Restatement appears to acknowledge this tension as well, stating that ―[u]nlike
    other intentional torts [i.e., defamation or slander of title], tortious interference
    with contract has not developed a crystallized set of definite rules as to the
    existence or non-existence of a privilege to act.‖ Belliveau Bldg. 
    Corp., supra
    note
    
    10, 763 A.2d at 628
    (citing Restatement § 767). Recognizing and acknowledging
    what may appear to be some inconsistency, we believe a few key differences
    between the two claims warrant the difference in treatment.
    First, the reasoning underlying an absolute privilege rule for judicial
    publications in a defamation suit is different from the concerns at issue in the
    tortious interference context. As previously stated, parties to litigation are granted
    an absolute privilege in defamation suits over the publication of any relevant
    statements made during the judicial proceedings because attorneys should have
    freedom in their efforts to secure ―justice‖ for their clients. See 
    Oparaugo, supra
    ,
    884 A.2d at 79. Our recognition of only a conditional privilege for claims of
    tortious interference does not go against this stated policy; instead, it seeks to
    prevent parties from utilizing the litigation process as a coercive weapon. See
    29
    Restatement § 767 cmt. b. Put another way, the absolute privilege rule is necessary
    in a defamation suit because attorneys should be free to publish statements during
    the course of judicial proceedings without fear of being later subject to suit, but
    upholding an absolute privilege for a tortious interference claim would go against
    the purpose of this claim, which, like the instant case, is to prevent bad faith
    litigants from abusing the judicial process solely for the purpose of interfering with
    another party‘s business prospects. See, e.g., Warren, supra note 
    10, 618 F. Supp. at 325
    (―The one holding title to the property . . . deserves the protection of a legal
    disincentive against an ill willed creditor who, without justification, wishes to
    apply undue pressure by [tying] up the record owner‘s property with a notice of lis
    pendens for what could be a period of years.‖). The conditional privilege rule
    strikes this balance; it protects litigants with bona fide real property interests from
    future lawsuits, while discouraging those who would use a notice of lis pendens as
    a coercive, bad faith tactic. See 
    id. Second, our
    jurisdiction embraces the Restatement‘s definition of tortious
    interference and its defenses, which makes clear that any assertion of privilege
    must be conditioned on a ―bona fide claim‖ made in good faith. See Restatement
    § 773. In so doing, we implicitly agree that the public policy of encouraging free
    access to the courts, forming the basis of an absolute privilege, must give way, in
    30
    the context of a tortious interference claim, to the competing public policy concern
    of preventing bad faith litigants from abusing the judicial process. See Westfield
    Dev. 
    Co., supra
    , 786 P.2d at 1117 (observing this same dichotomy). Many courts
    have recognized that there are simply differing views on this issue, and that it is in
    large part determined by how the claim has evolved in their respective
    jurisdictions. See 
    Birdsong, supra
    , 953 S.W.2d at 114. Consequently, the fact that
    an absolute privilege applies to publications during judicial proceedings in the
    defamation context is not contrary to our decision today in the tortious interference
    context.
    Finally, we reject VLK‘s assertion that the absolute privilege rule is in
    conformance with our lis pendens statute, based on the notion that the statute
    already provides adequate remedies for lis pendens filed in bad faith. Under our lis
    pendens statute, a party seeking to terminate such filings must bring an action in
    the Superior Court to cancel the notice. D.C. Code § 42-1207 (g) (2010 Supp.).17
    Pursuant to subsection (h), the trial court may then:
    issue an order canceling the notice of pendency of action
    prior to the entry of judgment in the underlying action or
    proceeding if the court finds any one of the following:
    17
    We note that subsection (h) of the lis pendens statute was added in 2010,
    after the events of the Maryland lawsuit and the release of the thirty-one lis
    pendens. Lis Pendens Amendment Act, 2010 D.C. Sess. Law Serv. 18-180 (West).
    31
    ***
    (3) The underlying action or proceeding has not
    been prosecuted in good faith, with all reasonable
    diligence, and without unnecessary delay.
    (Emphasis added).     Further, under subsection (d), the trial court may impose
    sanctions for the filing. ―In determining whether sanctions are appropriate . . . [the
    trial court] should assess whether the non-prevailing party‘s filing of lis pendens
    was for an improper purpose, or was unwarranted by existing law or a frivolous
    argument for the extension, modification, or reversal of existing law, or was
    without evidentiary support.‖      6921 Georgia Avenue, N.W., Ltd. P’ship v.
    Universal Cmty. Dev., LLC, 
    954 A.2d 967
    , 973 (D.C. 2008). That said, ―[a] trial
    court need not make a finding of bad faith in relation to a party‘s filing of lis
    pendens in order to exercise its discretion in imposing sanctions. ‖ 
    Id. This statutorily
    authorized sanction, which the trial court has discretion to
    impose, is not analogous to a common-law claim of tortious interference for
    damages. It is a fundamental legal principle that ―[c]ompensatory damages are
    intended to redress the concrete loss that the plaintiff has suffered by reason of the
    defendant‘s wrongful conduct,‖ State Farm Mut. Auto. Ins. Co. v. Campbell, 
    538 U.S. 408
    , 416 (2003) (citations and internal quotation marks omitted), while
    sanctions are simply a ―penalty or coercive measure that results from failure to
    32
    comply with a law, rule, or order.‖ Alabama v. North Carolina, 
    560 U.S. 330
    , 340
    (2010) (citing Black‘s Law Dictionary 1458 (9th ed. 2009)).             Consequently,
    because a common law claim of tortious interference intends to restore what was
    lost, or otherwise ―make the plaintiff whole,‖ it cannot be said that sanctions offer
    comparable relief to ―compensatory damages.‖                See generally Croley v.
    Republican Nat’l Comm., 
    759 A.2d 682
    , 689 (D.C. 2000) (citation omitted). Since
    sanctions and damages serve different purposes, it would be unfounded to hold that
    an absolute privilege rule is consistent with our lis pendens statute simply because
    the statute authorizes sanctions.     Further, it is a ―well-established maxim of
    statutory construction that statutory remedies are presumed to be cumulative to the
    common law, and do not abolish common law remedies unless so declared in
    express terms or by necessary implication.‖ Towers Tenant Asso’n, Inc. v. Towers
    Ltd. P’ship, 
    563 F. Supp. 566
    , 575 (D.D.C. 1983). Nothing within the language of
    our lis pendens statute leads us to conclude that the statute intended to foreclose a
    claim of tortious interference in instances such as here.
    Accordingly, the trial court did not err in denying VLK‘s motion for
    summary judgment on the claim of tortious interference on the basis that only a
    conditional privilege applied to the filing of a notice of lis pendens in connection to
    the Maryland lawsuit. Consequently, the question of whether VLK was entitled to
    33
    the privilege defense for the thirty-one notices of lis pendens depended on whether
    VLK initiated the underlying Maryland lawsuit in good faith, which was a factual
    question for the jury to decide at trial.18 See 
    Oparaugo, supra
    , 884 A.2d at 82.
    B. Evidence of Tortious Interference and Calculation of Damages
    We next turn to VLK‘s alternative argument that Havilah failed to present
    evidence at trial that it had specific business relationships that it lost as a result of
    VLK‘s pursuit of the underlying litigation, or that VLK knew about a particular
    relationship and intentionally interfered with it. Because this was a jury trial, we
    18
    There is some ambiguity, on the record before us, as to whether the trial
    court directed the jury to assess the good faith basis of the underlying litigation,
    which, as we hold today, would be the proper inquiry, or whether the jury was
    improperly invited to assess the motivation of VLK in filing the individual lis
    pendens, which would not be actionable if the underlying litigation were found to
    be privileged. Much of the case appears to have gone forward on the notion that
    the relevant consideration was VLK‘s motivation in filing the individual lis
    pendens. See, e.g., Second Amended Complaint at ¶ 51 (―[VLK] intentionally, and
    for an improper purpose, interfered with Havilah‘s business relationships,
    expectancies, and contracts by filing lis pendens on its properties, thereby inducing
    a termination of Havilah‘s contracts, business relationships, and expectancies
    thereof.‖). Ultimately, however, we are persuaded that the trial court‘s final jury
    instructions sufficiently focused the jury on evaluating the merits of the underlying
    litigation. (―In this case[,] the conduct is legally justified and/or privileged if
    defendants can establish with respect to the 31 lots at issue in this matter that they
    believed that they had a good faith basis for asserting a [bona fide] claim.‖) See
    Knight v. Georgetown Univ., 
    725 A.2d 472
    , 483 (D.C. 1999) (―Jurors are presumed
    to follow their instructions . . . .‖).
    34
    construe VLK‘s claim as a challenge to the trial court‘s denial of its motion for
    judgment as a matter of law.19 Within this substantive claim, we also consider
    VLK‘s argument that the trial court erred in instructing the jury to apply the fair
    market value method of calculating damages.
    ―A trial court may grant a motion for judgment as a matter of law only if no
    reasonable juror, viewing the evidence in the light most favorable to the prevailing
    party, could have reached the verdict in that party‘s favor.‖ NCRIC, 
    Inc., supra
    ,
    957 A.2d at 902 (citation and internal quotation marks omitted). VLK‘s argument
    that Havilah failed to identify specific business relationships can be disposed of by
    reference to our decision in Carr v. Brown, 
    395 A.2d 79
    , 84 (D.C. 1978). In Carr,
    we stated that under the tort of interference with prospective advantage, ―business
    expectancies, not grounded on present contractual relationships but which are
    commercially reasonable to anticipate, are considered to be property and therefore
    protected from unjustified interference.‖ 
    Id. at 84
    (emphasis added) (interpreting
    William L. Prosser, Torts § 130 at 949 (4th ed. 1971)). We further observed that
    these expectancies are considered reasonable in cases where ―there is a background
    of business experience on the basis of which it is possible to estimate with some
    19
    VLK moved for judgment as a matter of law at the close of Havilah‘s
    case and again at the close of evidence. Both motions were denied.
    35
    fair amount of success both the value of what has been lost and the likelihood that
    the plaintiff would have received it if the defendant had not interfered.‖ 
    Id. (citing Prosser,
    supra, at 950); see, e.g., Robertson v. Cartinhour, 
    867 F. Supp. 2d 37
    , 60
    (D.D.C. 2012) (concluding that, under District law, the term ―commercially
    reasonable to anticipate,‖ requires ―a probability of future contractual or economic
    relationship and not a mere possibility‖).
    Here, viewing the evidence in the light most favorable to Havilah, as we
    must on appeal, there was sufficient evidence for the jury to conclude that it was
    commercially reasonable for Havilah to anticipate selling its thirty-one properties
    at issue, sales which were thwarted by VLK‘s initiation of litigation and ancillary
    filing of lis pendens. For example, the voluminous amount of documentation that
    Havilah proffered into evidence showed that it actively marketed the properties,
    and that it had generated genuine interest in the properties prior to the filings of lis
    pendens. In addition, Alderman testified that Havilah purchased the properties in
    the first half of 2007, a time when people were buying ―properties at an ‗alarming
    rate,‘‖ and that it was successful in marketing and selling at least some of the
    properties until the lis pendens were filed. Robinson, Havilah‘s real estate agent,
    corroborated Alderman‘s testimony, stating that he assisted Alderman in entering
    sales contracts for some of the properties at issue, but that deals fell through after
    36
    the lis pendens were filed. As attested by Konopka, Havilah‘s expert witness on lis
    pendens, a lis pendens filing makes it practically impossible for a property to be
    sold because of the potential risks involved for buyers. In fact, the marketability of
    Havilah‘s properties was recognized by VLK and its attorneys, as evidenced in
    emails showing that VLK initiated the Maryland lawsuit, at least in part, due to its
    concern that Havilah‘s properties were being sold too quickly and for too high a
    profit, and in VLK‘s complaint in the Maryland lawsuit, which claimed that
    Havilah had ―sold at least three of [the properties] for a significant profit of several
    hundred thousand dollars.‖ (Emphasis in original). From this, the jury could also
    infer that VLK knew of Havilah‘s expectancies, and that             the litigation and
    ancillary lis pendens were aimed at interfering with the sale of Havilah‘s
    properties. See, e.g., Nat’l R.R. Passenger Corp. v. Veolia Transp. Servs., Inc., 
    592 F. Supp. 2d 86
    , 98-99 (D.D.C. 2009) (―[A] plaintiff must show that an interferer
    knew of the business expectancy.        An interferer‘s knowledge of a plaintiff‘s
    relationship or expectancy may be shown by the interferer‘s conduct or spiteful or
    threatening words.‖) (citations omitted).      Accordingly, based on the evidence
    presented at trial, the jury could reasonably conclude that Havilah had realistic
    expectancies in the sale of the thirty-one properties, which were damaged by the
    initiation of the litigation and the resulting filing of lis pendens, and that VLK was
    conscious of Havilah‘s expectancies.
    37
    With respect to the issue of damages, VLK essentially argues that the
    diminished fair market value method of calculating Havilah‘s damages relied on by
    the trial court to instruct the jury was too uncertain and speculative because it was
    premised on the ―unfounded‖ assumption that Havilah could have sold all of its
    properties during the intervening time that the lis pendens were in place. We
    disagree. ―Damages may not be based on mere speculation or guesswork. The
    evidence offered must form an adequate basis for a reasoned judgment.‖ Vector
    Realty Grp., Inc. v. 711 Fourteenth St., Inc., 
    659 A.2d 230
    , 234 (D.C. 1994)
    (citations and internal quotation marks omitted). However, damages need not be
    calculated with ―mathematical precision‖ so long as they are based on a reasonable
    estimate of relevant data. See NCRIC, 
    Inc., supra
    , 957 A.2d at 902-03.
    In this case, the trial court relied on Askari v. R&R Land Co., 
    225 Cal. Rptr. 285
    , 291 (Cal. Ct. App. 1986) and Haisfield v. ACP Fla. Holdings, Inc., 
    629 So. 2d 963
    , 966 (Fla. 1993), which adopted Askari. In Askari, the court held that a party
    who wrongfully files lis pendens on another‘s property is liable for the
    consequential damages of the diminished value of the property, based on the
    principle that ―if [a] vendee has interfered with the vendor‘s freedom . . . by
    retaining possession or asserting an interest in the property, the vendor may include
    any additional damages caused thereby in the amount necessary to give him the
    38
    benefit of his 
    bargain.‖ 225 Cal. Rptr. at 292
    (emphasis added). Accordingly,
    Havilah‘s entitlement to the diminished fair market value of its properties is not
    premised on the ―unfounded‖ assumption that it would have sold all thirty-one
    properties, but rather, such damages are to compensate Havilah for its loss of
    freedom in utilizing its properties during the period of time when the lis pendens
    were active. Havilah is permitted to recover these damages so long as it can prove
    that the lis pendens hindered its ability to sell the properties, and that it nonetheless
    diligently attempted to sell the property, both of which are adequately reflected in
    the record. 
    Id. at 291.
    We do not believe this method for calculating damages is
    unduly speculative, especially given that both Askari and Haisfield, along with the
    District of Columbia in the breach of contract for real property context, have
    adopted this method of calculation. See Quick v. Pointer, 
    88 U.S. App. D.C. 47
    ,
    47, 
    186 F.2d 355
    , 355 (1950) (―The established rule in this jurisdiction is that
    damages under these circumstances [i.e., breach of contract for real estate] are the
    difference between the contract price and the fair market value of the property.‖)
    (footnote omitted).
    We also note that diminished fair market value damages are consistent with
    the Restatement (Second) of Torts § 774A, which deals with damages in the
    context of a tortious interference claim. The Restatement states:
    39
    (1) One who is liable to another for interference with a contract
    or prospective contractual relation is liable for damages for
    (a) the pecuniary loss of the benefits of the contract or the
    prospective relation;
    (b) consequential losses for which the interference is a
    legal cause; and
    (c) emotional distress or actual harm to reputation, if they
    are reasonably to be expected to result from the
    interference.
    (2) In an action for interference with a contract by inducing or
    causing a third person to break the contract with the other, the
    fact that the third person is liable for the breach does not affect
    the amount of damages awardable against the actor; but any
    damages in fact paid by the third person will reduce the
    damages actually recoverable on the judgment.
    (Emphasis added). Accordingly, under the Restatement, a party is specifically
    entitled to any consequential damages, which, in the context of lis pendens filings
    made in connection with bad faith litigation, include the diminishment in fair
    market value. 
    Askari, supra
    , 225 Cal. Rptr. at 291; Restatement § 774A cmt. d
    (―The plaintiff can also recover for consequential harms, provided they were
    legally caused by the defendant‘s interference.‖). Although it appears that we have
    not previously adopted this particular Restatement section, given our prior
    acceptance of the Restatement as it pertains generally to claims of tortious
    40
    interference, we think it only logical to also adopt the Restatement‘s method of
    calculating damages for claims of tortious interference going forward.20
    We recognize that, based on the specific facts of this case, the fair market
    value method of calculating damages may appear overly generous to Havilah,
    given that the value of property generally fell across the country between 2007 and
    2009 due to the subprime mortgage crisis. However, as the Askari court explained:
    This rule is not intended to penalize a buyer who files a
    lis pendens. Changing conditions in the real estate
    market may work to the buyer‘s benefit or to his
    disadvantage. For example, if the property has increased
    in value when the lis pendens is lifted, the damages the
    buyer must pay are accordingly reduced. In some cases
    the buyer may pay no damages. The buyer‘s damages
    are subject to change because the filing of a lis pendens
    does not place valuation of the property in a state of
    suspended 
    animation. 225 Cal. Rptr. at 292
    . Based on the foregoing, we conclude the diminished fair
    market value method was not an improper method for calculating damages
    stemming from lis pendens filings made in connection with bad faith litigation.
    Accordingly, the trial court did not err in instructing the jury to apply the fair
    market method in calculating Havilah‘s damages.
    20
    Colorado, which has accepted the conditional privilege rule based on its
    adoption of the Restatement, has cited with approval this particular Restatement
    provision. See Westfield Develop. 
    Co., supra
    , 786 P.2d at 1120.
    41
    III.   Havilah’s Appeal
    Havilah‘s sole argument on appeal is that the trial court erred in granting
    summary judgment in favor of VLK on the malicious prosecution count because
    the filing of a lis pendens, or alternatively the filing of thirty-one lis pendens,
    satisfies the ―special injury‖ element for a claim of malicious prosecution as a
    matter of law. Principally, Havilah argues that the Restatement (Second) of Torts
    recognizes that the filing of lis pendens without probable cause satisfies the
    ―special injury‖ requirement. Havilah further claims that many other jurisdictions
    recognize that a lawsuit for malicious prosecution can be brought based on the
    filing of lis pendens in bad faith.
    Under the District of Columbia‘s formulation of the malicious prosecution
    cause of action, Havilah must present evidence that:         (1) the underlying suit
    terminated in its favor; (2) there was malice on the part of VLK in filing the
    underlying suit; (3) there was a lack of probable cause for the underlying suit; and
    (4) that it suffered a special injury as a result of the suit. See 
    Joeckel, 793 A.2d at 1282
    . ―Special injury‖ is defined as an arrest, a seizure of property, or an injury
    ―which would not necessarily result from suits to recover for like causes of action.‖
    
    Id. (emphasis added)
    (citations and internal quotation marks omitted). The last
    42
    definition of ―special injury‖ is at issue here.21 We have repeatedly held that, in
    the District of Columbia, ―injuries to reputation, emotional distress, loss of income,
    and substantial expense in defending‖ are outside the scope of what constitutes a
    ―special injury.‖ 
    Id. (citing Mazanderan
    v. McGranery, 
    490 A.2d 180
    , 182 (D.C.
    1984), Epps v. Vogel, 
    452 A.2d 320
    , 324 (D.C. 1982), and Morowitz v. Marvel,
    
    423 A.2d 196
    , 198 (D.C. 1980)) (internal quotation marks omitted). We have
    narrowly defined ―special injury‖ as part of this court‘s long-standing policy to
    ―maintain . . . free access to the courts by persons with grievances who might
    otherwise be restrained from seeking redress because of their fear of liability
    should they fail . . . .‖ 
    Ammerman, supra
    , 384 A.2d at 641. The fear is that
    ―[o]therwise litigation would lead, not to an end of disputing, but to its beginning,
    and rights violated would go unredressed for fear of the danger of asserting them.‖
    Melvin v. Pence, 
    76 U.S. App. D.C. 154
    , 157, 
    130 F.2d 423
    , 426 (1942).
    Recognizing, however, that ―some sort of balance ha[s] to be struck between
    the social interest in preventing unconscionable suits and in permitting honest
    21
    We disagree with Havilah‘s attempt to analogize a lis pendens filing with
    an injunction or a seizure of property because a lis pendens does not in and of itself
    restrict property interests. Instead, it is more appropriately characterized as simply
    notice to third parties of pending litigation regarding the property. See Heck, supra
    note 
    1, 941 A.2d at 1030
    n.1 (―[L]is pendens is still only a notice; unlike a lien, a
    person obtains no new property interest through the operation of the lis pendens
    doctrine.‖ (citations and internal quotation marks omitted)).
    43
    assertion[s] of supposed rights[,]‖ 
    Joeckel, supra
    , 793 A.2d at 1282 (quoting Soffos
    v. Eaton, 
    80 U.S. App. D.C. 306
    , 307, 
    152 F.2d 682
    , 683 (1945)), in certain rare
    instances, we have allowed malicious prosecution suits on the basis that a party has
    sustained an economic injury beyond what is normally incidental to like causes of
    action. 
    Joeckel, supra
    , 793 A.2d at 1283.
    For example, in Soffos, the court concluded that Soffos‘ suit for malicious
    prosecution should not have been dismissed because the burden of being
    compelled to defend against ―successive unconscionable suits [for possession of
    real property] is not [an injury] which would necessarily result in all suits
    prosecuted to recover for like causes of 
    action.‖ 80 U.S. App. D.C. at 307
    , 152
    F.2d at 683 (internal quotation marks omitted). The court reasoned that, contrary
    to our general stated policy of open courts, ―[n]o one is likely to be deterred from
    litigating an honest claim by fear that some future jury may erroneously decide that
    he has brought two suits maliciously and without probable cause.‖ 
    Id. (footnote omitted).
    Consequently, the court determined that in rare instances where one
    party consecutively sues another with malice (meaning at least twice), there is ―no
    good reason why the law should tolerate repeated abuse of its processes.‖ 
    Id. 44 Likewise,
    in Davis v. Boyle Bros., Inc., 
    73 A.2d 517
    , 520 (D.C. 1950), the
    court concluded that Davis articulated an actionable malicious prosecution claim
    because, although there was only one suit filed, the underlying action against Davis
    constituted ―what might be termed one suit plus[,]‖ meaning ―[i]t involves
    something more than the usual suit brought maliciously and without probable
    cause.‖ 
    Id. (emphasis added)
    . Specifically, in Davis, defendant Boyle Bros.
    explicitly admitted to Davis that it sued the wrong person for failing to pay for
    merchandise purchased at its store, and promised her that the suit would be
    dismissed. 
    Id. at 519-20.
    However, after having admitted its error, Boyle Bros.,
    nonetheless, maintained suit against Davis and received a default judgment against
    her, and even attempted to have a trial on the merits after the default judgment was
    set aside. 
    Id. The appeals
    court concluded that, under these unique ―one suit plus‖
    circumstances, this default ―judgment is not an incident of an ordinary suit
    involved in this kind of claim.‖ 
    Id. at 520.
    In contrast, any economic injuries stemming from a simple filing of lis
    pendens cannot accurately be described as an injury beyond what is normally
    incidental to like causes of action that meets our narrow definition of ―special
    injury.‖ This is because lis pendens are routinely filed in lawsuits involving real
    property interests; its primary purpose is to give third parties‘ constructive notice
    45
    of pending litigation. See 1st Atl. Guar. Corp. v. Tillerson, 
    916 A.2d 153
    , 157
    (D.C. 2007). See, e.g., Kerns v. Kerns, 
    53 P.3d 1157
    , 1162 (Colo. 2002) (stating
    that the filing of lis pendens promotes ―the finality of litigation and economy of
    judicial resources‖ (citation omitted)). Moreover, a failure to file a notice of lis
    pendens in this jurisdiction actually prevents a plaintiff from later invoking its
    protections; namely, that a third party acquiring an interest in the property takes his
    or her interest subject to the parties‘ rights as finally determined by the litigation.
    See 1st Atl. Guar. 
    Corp., supra
    , 916 A.2d at 157 (―Most jurisdictions, including the
    District of Columbia, have enacted statutes requiring a party to record a notice that
    litigation affecting property is pending in order to obtain the benefits of lis
    pendens.‖); see also Trustee 1245 13th Street, NW No. 608 Trust v. Anderson, 
    905 A.2d 181
    , 185 (D.C. 2006) (―[T]he appellee has valid title to the property by
    equitable conversion, undisturbed by the foreclosure action since lis pendens was
    not invoked . . . .‖ (footnote omitted)).
    In addition, the relevant statute also broadly authorizes the filing of lis
    pendens for essentially any action or proceeding ―in either state or federal court in
    the District of Columbia, or in any other state, federal, or territorial court, affecting
    the title to or tenancy interest in, or asserting a mortgage, lien, security interest, or
    other ownership interest in real property.‖ D.C. Code § 42-1207 (a) (emphasis
    46
    added). In fact, we have interpreted the phrase ―other ownership interest in real
    property‖ to encompass even claims of equity. See Heck, supra note 
    1, 941 A.2d at 1029-30
    ; see, e.g., 18A Am. Jur. 2d Corporations § 666 (2013) (concluding that in
    a usurpation of corporate opportunity case, ―the corporation may seek an equitable
    forfeiture, requiring the shareholder to return any ill-gotten gains‖) (emphasis
    added).
    Consequently, unlike the extraordinary facts in Soffos and Davis, the lis
    pendens filed pursuant to the Maryland lawsuit, which involved real property
    interests, cannot be considered an injury that would ―not necessarily result from
    suits to recover for like causes of action.‖ For the same reason, any monetary
    losses suffered by Havilah stemming from VLK‘s filing of lis pendens are merely
    incidental economic losses. See 
    Joeckel, supra
    , 793 A.2d at 1283.
    We have recognized that our adoption of a narrow ―special injury‖
    requirement for malicious prosecution claims is the minority position. In fact, we
    have admitted that while we are ―aware that the majority of the states have now
    rejected a special injury requirement, [we have] nonetheless opted to affirm our
    requirement of the same, in the belief that it best promotes this jurisdiction‘s policy
    of encouraging free access to the courts.‖ 
    Morowitz, supra
    , 423 A.2d at 198. The
    47
    Restatement (Second) of Torts § 677 (1979), which Havilah argues that we should
    embrace, follows the majority view and adopts a much broader interpretation of
    ―injury.‖ Specifically, that Restatement section, which encompasses the tort of
    malicious prosecution, explicitly states that bad actors are liable for ―any material
    harm that is caused to the person who is deprived of the possession of his land or
    other things by his inability to use them for any legitimate purpose.‖ § 677
    (Emphasis added). Thus, under the Restatement‘s formulation, Havilah would not
    likely be barred from pursuing a malicious prosecution claim against VLK, given
    that the filings of lis pendens did, in some way, deprive Havilah from fully utilizing
    its properties for a legitimate purpose.22
    However, Havilah is not the first party to ask this court to modify, broaden,
    or abandon our ―special injury‖ requirement.        We have long ―declined prior
    invitations to abandon or modify the special injury rule based on the court‘s long-
    held belief ‗that it best promotes this jurisdiction‘s policy of encouraging free
    access to the courts.‘‖ 
    Joeckel, supra
    , 793 A.2d at 1284.
    22
    In addition to the Restatement, Havilah points us to cases from Maryland
    and other jurisdictions — including Rhode Island, New Jersey, North Carolina, and
    New York — that appear to state in some fashion that a lis pendens filing may
    satisfy the injury component for a malicious prosecution claim.
    48
    Havilah‘s alternative argument, that even if one lis pendens was insufficient
    to constitute a special injury, the filing of thirty-one lis pendens together is so
    excessive that such a large number of filings should be deemed a special injury, is
    similarly unpersuasive. This case fails to satisfy either narrow exception to the
    special injury rule that this jurisdiction has previously recognized.     It neither
    presents the ―two or more‖ malicious lawsuits scenario envisioned in Soffos, nor
    the ―one suit plus‖ case articulated in Davis. Although the Soffos court concluded
    that the ―burden of being compelled to defend successive unconscionable suits‖
    constituted an injury beyond what was normally incidental to like causes of action,
    this court has never held that, without more, the burden of having to defend oneself
    against a singular suit, even if unconscionable, qualified as a special injury. 80
    U.S. App. D.C. at 
    307, 152 F.2d at 683
    .
    As Davis makes clear, a malicious prosecution claim involving only one
    unconscionable suit, i.e., the ―one suit plus‖ scenario, must involve ―something
    more than the usual suit brought maliciously and without probable cause which
    ordinarily is 
    commenced[.]‖ 73 A.2d at 520
    . Here, given the context of the
    Maryland lawsuit, which by its nature involved numerous properties in dispute, we
    do not believe that any of the injuries alleged, i.e., incidental economic losses
    stemming from multiple lis pendens filings, would be unique from similar disputes
    49
    involving multiple properties. Therefore, the number of lis pendens filed pursuant
    to this one lawsuit is not dispositive in determining special injury.         To hold
    otherwise would be contrary to our narrow construction of ―special injury,‖ and to
    our policy of maintaining an open court system, since malicious prosecution claims
    arguably could then be brought based simply on the number of causes of action
    alleged in a single lawsuit. See 
    Ammerman, supra
    , 384 A.2d at 641.
    Lastly, we also find such an argument arbitrary. As the trial court stated,
    ―one could not logically argue that [twenty-five] lis pendens notices could not
    produce a special injury if [thirty-one] could, or that the injury caused by [fifteen]
    notices would be less ‗special‘ in any logical way tha[n] stemming from [twenty-
    five], and so on down the slippery slope.‖ For all of these reasons, the trial court
    did not err in granting summary judgment on the claim of malicious prosecution.
    IV.    Conclusion
    We affirm the trial court‘s various decisions in this complex civil action. On
    the issue of first impression, we hold that, in the District of Columbia, the filing of
    a notice of lis pendens is protected by a conditional privilege as a defense to a
    claim of tortious interference. Thus, such filings can only be the basis for suit in
    50
    limited instances where it can be shown that the underlying litigation was for an
    improper purpose. Accordingly, the trial court did not err in denying summary
    judgment on the claim of tortious interference.
    Further, in determining damages for a tortious interference claim stemming
    from the wrongful filings of lis pendens, we conclude that the fair market value
    method is not speculative and is consistent with the Restatement‘s approach for
    damage calculations, which we adopt going forward.
    Lastly, we likewise conclude that the trial court did not err in granting
    summary judgment in favor of VLK on Havilah‘s claim of malicious prosecution
    because the filing of a notice of lis pendens, or alternatively thirty-one lis pendens,
    did not constitute a ―special injury‖ as a matter of law.
    Affirmed.