concurring in part and dissenting in part:
I dissent from that portion of the majority opinion which affirms the trial court’s denial of CNR’s counterclaim for tortious interference with CNR’s contractual relationship with Karolyn Kent. I concur in all other respects. As to the counterclaim, the majority states that malice is required to support the cause of action and that the trial court’s ruling reflects the absence of this needed element. CNR’s counterclaim was disposed of on cross motions by both parties for summary judgment.
Malice is indeed a requisite for liability. However, it is established that what is meant is not malice in the sense of ill will but rather an intentional interference without justification. (Restatement (Second) of Torts, Introductory Notes to ch. 37, secs. 766, 767 (1977); 45 Am. Jur. 2d Interference sec. 3 (1969).) The necessary legal malice is obvious in the instant case. Clifton-Strode was aware of CNR’s contract and its provisions. It was the standard multiple listing agreement which gave CNR the exclusive right to sell and advertise the Kent apartment building. As a cooperating or subagent for CNR, Clifton-Strode showed the Kent property to the ultimate buyer, Daniel Schmidgall. There is no dispute that this initial showing was during the time the CNR contract with Kent was in effect. Eight days after CNR’s listing contract expired, Clifton-Strode signed a contract with Karolyn Kent to show the same property to the same Daniel Schmidgall. Ten days later Schmidgall decided to buy the Kent property.
As the majority notes, Clifton-Strode never disputed that the Schmidgall offer to buy was within a “reasonable time” of the termination of CNR’s contract and that the clear, unambiguous terms of the contract authorize payment of a commission to CNR if a buyer who had viewed the property during the contract term, purchased within a reasonable time after the contract term.
From Clifton-Strode’s actions it is clear that it was attempting to secure the commission away from CNR. It is equally clear that this action was -without justification: Schmidgall initially viewed the property during CNR’s contract. CNR was entitled to the commission if Schmidgall decided to purchase, as he did, within a reasonable time thereafter, even if the CNR contract had terminated. For Clifton-Strode to approach Kent and engage her to enter into an exclusive listing contract for a one-time showing of the property to Schmidgall was wrongful. It was an attempt to interfere with CNR’s rights under their contract with Kent. This is malice: an intentional interference without justification.
I agree that this issue was ripe for summary judgment in view of the filing of cross motions for summary judgment by both parties. Regrettably, however, summary judgment as to CNR’s counterclaim was granted to Clifton-Strode, the wrong party. Summary judgment as to that counterclaim should have been entered in favor of CNR and damages determined. I would reverse and remand for that limited purpose.