dissenting. I respectfully disagree with the majority’s decision to affirm this case. There are four elements required to establish a claim of intentional interference with a business expectancy: (1) a valid business expectancy; (2) the interfering party must have knowledge of the expectancy; (3) intentional interference with the business expectancy; and (4) damages suffered by the interfered with party. Vowell v. Fairfield Bay Community Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001). Additionally, this court has stated that actionable interference must be improper. Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995). While I agree with the majority that all four elements must be present, I disagree that our case law indicates that impropriety outweighs the examination of all elements individually or that it requires a balancing test. I also disagree that the evidence presented in this case is sufficient on the first element.
Because the first element of the tortious interference with a business expectancy is a valid business expectancy, it is vital that this element be present and supported by the evidence. Prior to this case, there has not been a bright-line rule that can be used to determine what is or is not a valid business expectancy. The majority seeks to define this element by looking to Professor Prosser and the Restatement (Second) of Torts. While this court has looked to Prosser for guidance in prior cases dealing with this tort, I do not feel that we need to resort to such sources here, as there is sound precedent from the Eighth Circuit and the Eastern District of Arkansas.
I see no need to look to Prosser or the Restatement in this case, as I believe that a definition can be established by looking to the Eighth Circuit’s decision in Wash Solutions, Inc. v. PDQ Mfg., Inc., 395 F.3d 888 (2005). There, Wash, the plaintiff had an exclusive agreement with the defendant, PDQ, to sell PDQ’s car washes. Wash had been in negotiations with Wallis to have Wallis purchase PDQ’s products when PDQ decided to revoke the exclusive agreement and deal directly with Wallis. Wash claimed a business expectancy with Wallis that PDQ interfered with. Specifically, Wash alleged that PDQ would have renewed its exclusive agreement, and that Wallis would have accepted Wash’s partnership proposal. The court found no evidence to support these claims, stating that it was mere speculation that these things would occur, and that mere speculation does not rise to the level of a valid business expectancy. The court explained:
The existence of a valid business expectancy will not be found where the facts showed a mere hope of establishing a business relationship which was tenuous. In order to have a claim for interference with a valid business expectancy, it is necessary to determine if the expectancy claimed was reasonable and valid under the circumstances alleged. If it is not, there was nothing for defendants to have interfered with.
Id. at 895-896 (quoting Service Vending Co. v. Wal-Mart Stores, Inc., 93 S.W.3d 764, 769 (Mo. Ct. App. 2002)). Thus, because the evidence only showed that Wash had secured PDQ’s business in the past, it fell short of establishing that Wash had an expectancy of future business.
Furthermore, in Kidd v. Bass Hotels & Resorts, Inc., 136 F. Supp. 2d 965 (2000), the Eastern District Court of Arkansas relied on our holding in Country Corner that “[i]t is elementary that some precise business expectancy or contractual relationship be obstructed.” Id. at 970 (quoting Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 654, 966 S.W.2d 894, 898 (1998)). The court explained that “past business relationships with former customers is not ‘sufficiently certain, concrete and definite’ to establish a cognizable prospective relationship.” Id. at 970 (quoting Shank v. William R. Hague, Inc. 192 F.3d 675, 689-90 (7th Cir. 1999)). In Kidd, the plaintiff manufactured and sold furniture. He had previously done business with Holiday Inn franchises, but alleged that after the defendants, a competitor and a Holiday Inn/Holiday Inn Express franchiser, entered into an agreement, he lost sales. The plaintiff did not have any contracts with Holiday Inn franchisees and he based his entire claim upon his expectancy to make sales to Holiday Inn franchisees. Specifically, the plaintiff provided evidence showing his closed orders and invoice amounts for a period of four years, which showed that his sales to Holiday Inns went down during the latter two years. He claimed that this drop was due to the defendants’ plan. However, his sales manager could not identify any situation where she sought a sale and actually lost it because of the defendants’ actions. The court found that his claim for interference with prospective contractual relationships cannot be supported by evidence of past relationships. The court explained that “ ‘[c]onclusions without the necessary factual underpinnings to support them are not enough to state a cause of action.’ ” Id. at 970 (quoting Hunt, 322 Ark. at 459, 909 S.W.2d at 332). In other words, the court found that the existence of past business did not, standing alone, support the existence of future business.
The above cases lay the foundation that a valid business expectancy does not require a contractual relationship per se, but there must be sufficiently certain, concrete, and definite evidence that there is a recognizable and reasonable prospective relationship. Consequently, past business relationships cannot be the sole basis with which to base a business expectancy upon. More bluntly, a plaintiffs conclusions that he would have gotten the business because he had before, without an indication from the prospective client, is not enough to establish a valid business expectancy. This definition is parallel to that developed by the Eighth Circuit, and we should follow this guideline in determining whether a valid business expectancy exists in this case.
Applying these holdings here, the proof is insufficient. In the present case, the evidence did not rise to the level of a valid business expectancy. First, evidence and testimony presented at trial demonstrated that the choice of title companies was with the realtor’s client or the realtor. Specifically, Bob Adkins, testifying on behalf of Appellee, explained that he had not made arrangements with different real estate companies from which he would expect them to send him any of their closings, but rather that he relied on his working relationships to bring in business. This is mere speculation that Appellee was going to continue to get business and does not rise to the level necessary to establish a valid business expectancy.
Secondly, as the majority points out, the title insurance business is a relationship business. Nevertheless, for the purposes of a valid business expectancy there must be more than just a thirty-year presence in the marketplace without competition and more than a history of past referrals and relationships with companies and their agents. To contend a valid business expectancy from this is mere speculation that individuals are going to continue to refer business to the company. This evidence is parallel to that in Wash Solutions and Kidd, and just as in those cases, it is not sufficient to establish a valid business expectancy.
Other than Prosser and the Restatement, the majority primarily relies on Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989), and Vowell, 346 Ark. 270, 58 S.W.3d 324, to establish its view on valid business expectancies. These cases, however, involved contractual agreements. I agree with the majority that “the existence of a contractual relationship is not a prerequisite to maintain an action for tortious interference with business expectancy.” However, I find it telling that they rely on cases that deal with actual contractual relationships.
In Mid-South, this court was faced with the issue of whether the complaint filed by the appellant stated a cause of action under Ark. R. Civ. P. 12(b)(6). Consequently, this court never examined the four elements beyond the facts alleged in the complaint. Nevertheless, upon a close examination of the facts involved, the relationship allegedly interfered with was of a concrete and definite nature, as Mid-South had an exclusive agreement with PepsiCo to bottle and distribute its beverages in a certain geographic territory. The presence of this exclusive agreement is strong evidence that the plaintiff held a precise valid business expectancy more in line with the language from Wash Solutions than the broad definition proposed by the majority.
In Vowell, like Mid-South, there was a prior contractual arrangement involved, namely that all Fairfield Bay property owners were required to pay dues to the Club as part of their deed. These were specific contractual arrangements that this court viewed as establishing “a valid business expectancy to some stream of dues to be paid” with respect to those lots the appellant interfered with. 346 Ark. at 277, 58 S.W.3d at 329. Rather than analyzing this finding of a clear and precise business expectancy, the majority has chosen to focus on Appellant’s intent to interfere. While this is clearly one of the elements of the tort, Vowell makes clear that each element of the tort must be present to proceed. Nevertheless, it cannot be ignored that again the finding of a valid business expectancy hinges on a precise recognizable and reasonable prospective relationship.
In sum, these cases are more in line with the valid business expectancy definition I have proposed than that of the majority. Specifically, there must be sufficiently certain, concrete, and definite evidence that there is a recognizable and reasonable prospective relationship, beyond mere speculation based on past business. I believe that we must first determine that a valid business expectancy existed, using a concrete and precise standard, before we can examine the other three elements of the tort.
Frankly, this case seems to hinge on competition.1 Appellee presented evidence that it has a long history of being one of the main title insurance companies in the area and expected to just continue to be on top, but then they got some competition and started to lose business. While they might have believed they would continue on top and keep getting business from the real estate companies and their agents because they have in the past, this is not a valid business expectancy that can be used as a basis to bring action against Appellant, a competitor. It would be a slippery slope to allow a company to maintain an action for intentional interference with business expectancy against a competitor when the expectancy is based upon its lengthy, monopoly-like presence in the marketplace and history of relationships with area real estate agencies. To do so, would not only open the door to a flood of litigation, but also would stifle competition.
Finally, while the majority and Justice Brown are correct in stating that we should ordinarily defer to the jury’s determination on a factual issue, I feel that we cannot defer to the findings of a jury that was improperly instructed. Here, the case should have never reached the jury because the trial court could not give a proper instruction as to what a valid business expectancy is. Even the trial judge recognized this lack of a standard when he stated: “I think also there’s a problem and the Supreme Court is going to have to decide it on what the valid business expectancy is” when you have a commercial marketplace. Appellant proffered an instruction that would have defined this term, but the trial court rejected it. Consequently, we cannot defer to a jury that lacked proper guidance or instruction about the first element of the tort.
Based on the foregoing reasons, I must respectfully dissent.
The majority mischaracterizes our discussion of competition. Here, we are dealing with whether a valid business expectancy exists, not, as the majority indicates, whether conduct was proper.