Price v. Sorrell , 1989 Wyo. LEXIS 258 ( 1989 )

CARDINE, Chief Justice.

Appellant, Daniel L. Price, Jr., d/b/a Mountain States Adjustment (Price), a collection agency, sued Attorney Larry D. Sorrell, appellee, to recover damages for intentional interference with performance of its contract with Riverton Memorial Hospital. This appeal is from summary judgment in favor of Sorrell.

We affirm.

The issues, as stated by appellant, are:

“I. Did the district court err in finding that a breach of contract was necessary for appellant to prevail in an action pursuant to Section 766A of the Restatement (Second) of Torts?

“II. Did the district court err in requiring that without breach of contract in an action pursuant to Section 766A, appellant must show the imposition of substantial expense or burden upon one of the parties to the contract?”

In response, Sorrell asserts that under governing Wyoming law a breach or termination of the contractual relationship is a necessary element of the tort of intentional interference with contract.

Appellant was engaged by Riverton Memorial Hospital (RMH) to collect delinquent accounts from debtors. Appellee Sorrell, an attorney at law, was employed by a debtor to represent her. Sorrell wrote a letter to RMH questioning the reputation of Price and his company, questioning RMH’s wisdom in having engaged Price’s services, denying that his client owed the debt, and inviting a lawsuit if that was RMH’s wish. Price alleged these facts in his complaint and asserted that, pursuant to § 766A of the Restatement, Second, Torts (1979), he was entitled to collect damages from Sorrell. Price alleged that Sor-rell’s letter led to a threatened loss of his contractual relationship with RMH and that his actual damages to repair that relationship with RMH was $117. Price sought some $25,000 in damages for the injury to that contractual relationship and requested exemplary or punitive damages.

Sorrell filed a motion for summary judgment supported by admissions and answers to interrogatories which established that Price’s contract with RMH had not been breached; that Price had expended, as a result of Sorrell’s letter, approximately $117 to produce recorded telephone conversations of cases involving collections on behalf of RMH; and to make telephone, as well as personal, contact with RMH employees in an effort to answer the questions raised by RMH concerning Price’s contract. The district court determined that:

“1. An action for tortious interference with a contract will not lie unless there has been an actual breach, failure to perform or termination of the contract allegedly interfered with;

“2. If an action for tortious interference with a contract does lie without an actual breach, termination or failure to perform an obligation under a contract, it only lies when the tortious interference is such that a substantial expense or burden is imposed upon one of the parties to the contract, and no such substantial expense or burden was imposed upon the Plaintiff in this case.”

The only issue we find necessary to address is whether this court will adopt the Restatement, Second, Torts § 766A (1979). We do not perceive ourselves as whimsical nor do we believe that an orderly and predictable development of the common law of torts requires adopting the totality of the Restatement, Second, Torts (1979). We choose, under the circumstances presented by this case, for good and valid reasons hereafter stated, to decline to adopt § 766A even though we have previously embraced §§ 766 and 766B. Section 766A provides:

“§ 766A. Intentional Interference with Another’s Performance of His Own Contract

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.”

This court has adopted the Restatement, Second, Torts § 766 (1979), defining the tort of intentional interference with a contract. Wartensleben v. Willey, 415 P.2d 613, 614 (Wyo.1966); First Wyoming Bank, Casper v. Mudge, 748 P.2d 713, 715 (Wyo.1988). In Mudge, we iterated that the elements of intentional interference with contract are: (1) the existence of the contract; (2) the defendant's knowledge; (3) intentional and improper interference inducing or causing a breach; and (4) resulting damages. In Martin v. Wing, 667 P.2d 1159, 1161-1163 (Wyo.1983), we also adopted the Restatement, Second, Torts § 766B (1979), which provides:

“One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of

“(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or

“(b) preventing the other from acquiring or continuing the prospective relation.”

Appellant has called our attention to the fact that the Federal District Court for the District of Wyoming has predicted that Wyoming would recognize a cause of action under the Restatement, Second, Torts § 766A (1979), since we have already embraced §§ 766 and 766B as noted above. Colorado Interstate Gas v. Natural Gas Pipeline Co. of America, 661 F.Supp. 1448, 1469 (D.Wyo.1987). While we were persuaded that §§ 766 and 766B offered legal theories that enhanced Wyoming jurisprudence, we are not so persuaded with regard to § 766A.

Section 766 requires improper interference with a contract that induced or caused a third party not to perform, or a breach of the contract, for which plaintiff may recover. Section 766B requires for recovery that a prospective contractual relation was lost because of the interference. Under § 766A, however, a plaintiff may recover by showing only that plaintiff’s performance of the subject contract was made more expensive or burdensome by the interference.

The difference between §§ 766 and 766A is substantial and significant. Where § 766 requires non-performance which includes a breach of the contract for liability to attach, § 766A requires, not a breach or non-performance, but only that performance became moire expensive and burdensome. We are convinced that such an element of proof is too speculative and subject to abuse to provide a meaningful basis for a cause of action. The breach or non-performance of a contract, or the loss of a prospective contractual relation, is a reasonably bright line that reduces the potential for abuse of the causes of action defined by §§ 766 and 766B. See Champion Well Service, Inc. v. NL Industries, 769 P.2d 382, 385 (Wyo.1989). It is our view that existing causes of action, including §§ 766 and 766B, as well as defamation, libel and slander, provide adequate protection against the claims sought to be addressed in this particular case.

The district court correctly held that an action for tortious interference with a contract requires “an actual breach, failure to perform or termination of the contract.”

THOMAS, J., files a specially concurring opinion in which GOLDEN, J., joins.

URBIGKIT, J., files a specially concurring opinion.