Price v. Sorrell

THOMAS, Justice,

specially concurring, with whom GOLDEN, Justice, joins.

While I agree with affirming the summary judgment entered by the trial court in this case, I am satisfied that my colleagues on the court do not incorporate in their views an apt analysis of the case in the light of the Restatement (Second) of Torts § 766A (1979). Instead, the court rejects § 766A as an appropriate rule of law for Wyoming despite the fact that this court already has embraced §§ 766 and 766B of the Restatement (Second) of Torts (1979). This renunciation seems whimsical and capricious. This is especially true if one recognizes that this is not a § 766A case at all, and that what the court has done is promulgate an advisory opinion contrary to a well established principle. State Board of Equalization v. Jackson Hole Ski Corp., *617745 P.2d 58 (Wyo.1987); Brad Ragan Tire Co. v. Gearhart Industries, 744 P.2d 1125 (Wyo.1987); Graham v. Wyoming Peace Officer Standards and Training Com’n., 737 P.2d 1060 (Wyo.1987); Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P.2d 147 (Wyo.1981); Wallace v. Casper Adjustment Service, 500 P.2d 72 (Wyo.1972). Cf., Tobin v. Pursel, 539 P.2d 361 (Wyo.1975); Cranston v. Thomson, 530 P.2d 726 (Wyo.1975); West v. Willey, 453 P.2d 883 (Wyo.1969).

On the other hand we are permitted, we even have said required, to affirm the judgment of the trial court on any proper ground appearing in the record. Reeves v. Boatman, 769 P.2d 917 (Wyo.1989); Deroche v. R.L. Manning Co., 737 P.2d 332 (Wyo.1987); Independent Producers Marketing Corp. v. Cobb, 721 P.2d 1106 (Wyo.1986); Kane v. Kane, 706 P.2d 676 (Wyo.1985); Willard Given & Associates, P.C. v. First Wyoming Bank-East Cheyenne, 706 P.2d 247 (Wyo.1985); Wheatland Cold Storage and Meat Processing, Inc. v. Wilkins, 705 P.2d 316 (Wyo.1985); Litzenberger v. Merge, 698 P.2d 1152 (Wyo.1985). We should affirm in this case, not by concluding that § 766A of the Restatement (Second) of Torts is not the law in Wyoming, but by recognizing that it has no application to the undisputed facts before the trial court.

The interrelationship between the two pertinent provisions perhaps can be best appreciated by setting them forth in full. Section 766 states:

Ҥ 766. Intentional Interference with Performance of Contract by Third Person
“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.”

Section 766A states:

“§ 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.”

The substantial difference between these two sections is the identification of the party to the contract towards whom the acts that constitute the intentional and improper interference are directed.

“ * * * The tort of interference with existing or prospective contractual relations includes interference with an existing contract either by causing a third party not to perform his contract with the plaintiff (as in § 766) or by preventing the plaintiff from performing his own contract or making that performance more expensive or burdensome (as in § 766A); it also includes interference with prospective contractual relationships (as in § 766B).” Restatement (Second) of Torts § 767, Comment a. (1979).

Certainly, this is not a case in which the court is confronted with the adoption of a new legal theory. Instead, the only concern is whether the court should flesh out in a consistent manner a legal theory that already has been adopted. I believe that we have an obligation to the trial bench and to the bar to develop the common law of torts in Wyoming in an orderly and predictable fashion. The trial bench and the bar would have had every reason to assume that, given the history of our adoption of §§ 766 and 766B, the court would adopt § 766A. See Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America, 661 F.Supp. 1448 (D.Wyo.1987), aff’d in part, rev’d in part 885 F.2d 683 (10th Cir.1989).

In this case, we need not make any decision to espouse or not to espouse § 766A because the facts do not justify invoking it. The offending letter was written to Price’s client, the hospital. Had there ensued a *618termination of the contractual relationship, a claim could have been asserted under § 766 of the Restatement (Second) of Torts. That did not happen, however, and the letter could not possibly have made Price’s performance of those duties he had assumed under the contract more expensive or burdensome. He was totally free to carry on the performance of his contractual obligations exactly as he had done before. While Price’s effort to convert his case to one which might fit under § 766A is creative, it also is specious.

In eschewing the concept articulated in § 766A, the majority assumes that this is a separate and novel theory. That is not so. Instead, this section of the Restatement (Second) of Torts simply describes an alternative manner for committing the tort of wrongful interference with a contract, the legal theory that we adopted in Wartensleben v. Willey, 415 P.2d 613 (Wyo.1966), and have consistently applied in First Wyoming Bank, Casper v. Mudge, 748 P.2d 713 (Wyo.1988); Texas West Oil and Gas Corp. v. Fitzgerald, 726 P.2d 1056 (Wyo.1986); Toltec Watershed Imp. Dist. v. Johnston, 717 P.2d 808 (Wyo.1986); Dehnert v. Arrow Sprinklers, Inc., 705 P.2d 846 (Wyo.1985); Martin v. Wing, 667 P.2d 1159 (Wyo.1983); Basin Elec. Power Coop.—Missouri Basin Power Project v. Howton, 603 P.2d 402 (Wyo.1979); and Kvenild v. Taylor, 594 P.2d 972 (Wyo.1979). If, as we have said, we permit recovery for the tort of wrongful interference with a contract, or potential contract, when the wrongful acts are directed toward the other party to the contract, or potential contract, no logical reason can be advanced for refusing recovery when the wrongful acts are directed toward the party who thereby is prevented from performing his duties under the contract or whose performance is rendered more onerous by the wrongful acts of the tortfeasor. The wronged party well may experience problems of proof with respect to the factor of causation and the amount of damage, but those problems are no different from similar problems that arise in a myriad of circumstances.

No meaningful distinction can be rested on the requirement of a breach of the contract because that requirement obviously is not an element of proof when the tort of wrongful interference with a potential contract is addressed under Restatement (Second) of Torts § 766B. Furthermore, it is conceptually possible that the degree of interference against the party to the contract would so inhibit his performance as to result in a breach of the contract. Surely, one who had a contract to haul logs out of the forest, but was forced to travel an extra fifty miles each trip because a landowner wrongfully closed a road would not be denied a remedy simply because no breach of the contract to haul logs was caused. The right to recover for wrongful interference with the log hauler’s contract should be recognized.

My view is that, if this court should eschew the adoption of § 766A of the Restatement (Second) of Torts in a proper case, then it would be consistent to overrule that line of cases in which we have adopted §§ 766 and 766B. The failure to do so would simply lend further uncertainty to the state of the law of torts in Wyoming.

I note a concern with the economic implications and the consequences to free enterprise that might flow from adopting § 766A of the Restatement (Second) of Torts. These objections relate to the right to compete in business. Usually it is a mistake to read the Restatements of the Law selectively without considering related sections. In § 768 of the Restatement (Second) of Torts, the economic concerns are addressed by the drafters, and I am satisfied with their treatment. It is apparent that the dire consequences here predicted have not prevented the appropriate application of these principles in other jurisdictions where they have been adopted in a consistent fashion. Certainly, the economic implications cannot be any more adverse than any other of the creative tort theories now in vogue in the common law of torts in America.