dissenting. This case should have gone to the jury. Instead, the trial court directed a verdict in favor of Simmons First National Bank at the close of all the evidence.
Our task on appeal is to review all of the evidence in the light most favorable to Mark Nicholson and determine whether any substantial evidence of fraud or tortious interference exists. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). In looking at the case from Nicholson’s perspective and addressing the proof on his behalf, he presents a viable case of tortious interference.
The case presented by Nicholson was this. Simmons Bank held a $2 million second mortgage on the Yellow Bayou Plantation and was -advised that the corporate owner of the plantation was on the verge of bankruptcy. To avoid bankruptcy, the bank suggested that the property be transferred out of the corporation. The bank could not take title to the property because the total debt would exceed the bank’s legal lending limits relative to this property. The property was, as a consequence, transferred to a friendly corporation, PEC, which was owned by the bank’s attorney, Harley Cox. PEC was the alter-ego of the bank, and PEC acted to accommodate the bank and at the bank’s behest. With respect to this property, the two entities were acting on concert.
Nicholson then entered into a real estate contract with PEC to sell the plantation for $4 million at a commission of five percent. Nicholson brought Piper and Stokes to the table.as buyers on December 17, 1985, with an offer of $4 million and an earnest money payment of $200,000, and a tax write-off of $ 1,250,000 as a contingency. The agreement prepared by Nicholson showed the bank as the owner of the plantation.
After that point, Nicholson was effectively cut out of the deal. Another bank attorney, Pat Burrows, wrote a letter directly to Piper on January 9,1986, in an attempt to restructure the deal as a stock sale by the owning corporation so that Piper could take advantage of a loss carryforward of $1,200,000. No mention of either PEC or Nicholson was made in the letter. After receiving the letter, Piper wrote back, through his attorney, on January 20, 1986, and requested that his earnest money be returned because, as he put it, “the plantation cannot be sold as previously discussed with the bank.” At that point the deal was terminated. The bank’s officers directed Nicholson not to have further contact with Piper. Mark Nicholson testified:
[The bank officers] told us that the deal was off, and they told us not to go talk to the Pipers and the Stokes. They said that they were tired of running around after them, and they said they wouldn’t do a deal with them if they came back and offered them $4 million cash.
Larry Nicholson, the appellant’s father, testified in a similar vein:
[The bank officers] told us don’t be fooling with Paul Piper and them, that they weren’t going to sell them the farm. At that time, they told us that the deal was off with them. They told us that they wouldn’t be dealing with Paul Piper or David Stokes, but they were dealing with them all the time. They didn’t tell us that. They said they weren’t dealing with Nicholson Realty Company’s clients, but they were. They said that we shouldn’t deal with them, that they wouldn’t sell it to Paul Piper if he had golden gloves or something to that nature.
Nicholson’s listing agreement with PEC terminated on January 22, 1986.
The bank then continued to pursue its own deal with Piper. Piper himself testified that he was doing business only with the bank at this point. On February 6, 1986, just two weeks after Nicholson’s contract with the PEC expired, the bank contracted with Piper for Piper to purchase the first mortgage from First South in the amount of $2.7 million and gave the bank an option to purchase the first mortgage within one year. The bank then listed the property with several real estate brokers. No contact was had with Nicholson in the effort, and no sale was forthcoming. The bank failed to make any payments on the note now owned by Piper. Piper called the loan, and on February 24,1987, PEC deeded the property to Piper. The bank simultaneously released its second mortgage on the land, the net result being that Piper took the property free and clear.
Nicholson received no commission on the deed to Piper.
The trial court concluded that the deal between PEC and Piper could never have been consummated as originally envisioned because it was contingent on a tax write-off which Nicholson’s offer on behalf of Piper did not provide. The court also alluded to the fact that the property was ultimately disposed of to Piper, the intimation being that this entitled Nicholson to a commission under the original listing agreement from PEC. This transfer to Piper, however, occurred more than a year after Nicholson’s contract with PEC had expired and after the bank had structured a new deal with Piper and after Nicholson had been told by the bank to cease communication with Piper.
In sum, Nicholson was told by the bank not to contact Piper and that the deal was off. The bank then entered into a separate agreement with Piper, unbeknownst to Nicholson, and listed the property with other real estate agencies. Nicholson, thus, was severely limited in further negotiating a sale with Piper. Nicholson may also have had a cause of action in contract against PEC, but I am not prepared to say, as a matter of law, that the bank did not interfere with his business expectancy and that he was not damaged by the bank’s actions.
Viewing this case in the light most favorable to Nicholson a cause of action exists and the jury should have decided the matter. I respectfully dissent.
Holt C.J., and Newbern, J., join.