dissenting.
I respectfully dissent. This is a summary judgment ease. The court’s opinion can only be supported if the movant (Sakowitz) has successfully established that there exists no genuine issue of material fact on an essential element of the non-movant’s (Steck’s) cause of action for tortious interference with contract. Bradley v. Quality Service Tank Lines, Inc., 659 S.W.2d 33 (Tex.1983); Gibbs v. General Motors Cory., 450 S.W.2d 827 (Tex.1970).
I.
The essential elements of a claim for tortious interference are: (1) that a contract existed that was subject to interference, (2) the act of interference was willful and intentional, (3) such intentional act was a proximate cause of the plaintiff’s damages, and (4) actual damage or loss occurred. Bellefonte Underwriters Insurance Co. v. Brown, 663 S.W.2d 562, 573 (Tex.App. — Houston [14th Dist.] 1983, writ requested); Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App. — El Paso 1977, writ ref’d n.r.e.).
As recognized by the court, the summary judgment evidence establishes a prima fa-cie case of tortious interference with contract. Diane Steck had an existing contractual employment relationship with Osh-mans. By Sakowitz’s own evidence and admissions they willfully and intentionally sent a letter to Oshmans seeking Steck’s termination. This letter reads in part as follows:
We [Sakowitz’s attorneys] hereby formally request that you honor the terms of our client’s [Sakowitz] contract in this matter [the alleged non-competition agreement] by terminating her [Steck’s] services. We must further advise that in the event you fail to do so ... we will have no alternative but to consider legal action against your company.
After receiving this letter, Oshmans terminated Steck’s employment resulting in the damages alleged. There can be no doubt that genuine issues of fact exist on the essential elements of Steck’s tortious interference claim.
However, Sakowitz argues, and the court holds, that it is privileged to interfere with Steck’s employment with Oshmans. This privilege is based upon the alleged non-competition agreement which existed between Steck and Sakowitz. The court finds that Steck failed to “... controvert the summary judgment proof” on the claimed privilege. In doing so, they have misapplied well established summary judgment law.
II.
The Texas courts have followed the law, consistent with many of our sister states,1 that a claim of justification or privilege in the interference of contractual relations is *109an affirmative defense upon which the defendant has the burden of proof. Tippett v. Hart, 497 S.W.2d 606, 613 (Tex.Civ.App. —Amarillo) writ refd n.r.e. per curiam, 501 S.W.2d 874 (Tex.1973); Bellefonte Underwriters, 663 S.W.2d at 573-74; Armendariz, 553 S.W.2d 400, 405; see also W. PROSSER, The Law of Torts § 129 at 942-43 (4th Ed.1971). The reason for such a rule is obvious; the party asserting the alleged privilege does not deny the interference but rather seeks to avoid liability based upon a claimed interest which is being impaired or destroyed by the plaintiffs contract. Such defenses, which constitute a confession and avoidance, are affirmative in nature. TEX.R.CIV.P. 94. The fact that privilege is an affirmative defense significantly alters the applicable summary judgment law and the requirements for appellate review.
Under Rule 166-A, Texas Rules of Civil Procedure, when a defendant moves for summary judgment on the basis of an affirmative defense, he must conclusively prove all essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); see also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). “The movant ... must establish his entitlement to a summary judgment ... by conclusively proving all essential elements of his cause of action or defense as a matter of law.” Id.
In this case Sakowitz, the summary judgment movant, had the burden to establish, as a matter of law, that its interference with the Steck/Oshmans employment contract was privileged. It must be noted that the claimed privilege is not absolute, but qualified, and can only be sustained if the interferor can show either: (1) that he has an equal or superior right to that of the plaintiff or, (2) he has a good faith belief that such a superior right exist. C.f, Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 91 (Tex.1976).
In reviewing the summary judgment proof, evidence favorable to the non-mov-ant (Steck) will be taken as true and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Wilcox v. St. Mary’s University, 531 S.W.2d 589, 593 (Tex.1975). Furthermore, the burden of proof that exists upon a trial on the merits is immaterial to the burden that a movant for summary judgment must bear. Missouri-K.-T. By. Co. v. City of Dallas, 623 S.W.2d 296, 298 (Tex.1981); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970). Instead, summary judgments must stand on their merits and cannot be granted on the failure of the non-movant’s proof if the movant has not conclusively established his affirmative defense. Clear Creek, 589 S.W.2d at 678.
HI.
As recognized by the court’s opinion, the non-competition agreement and Steck’s deposition are the only summary judgment evidence concerning whether or not Sakow-itz and Steck had entered into a binding contract. The agreement contains Steck’s name on the front page; however, neither Steck’s nor Sakowitz’s signatures appear at the end of the contract in the spaces provided for the parties’ signatures. Steck’s deposition testimony, as stated in the court’s opinion, shows that Steck did not intend or consent to be bound by the nature of the terms set out in the contract. To hold that the evidence proves the contract as a matter of law is to ignore the facts and the law. Sakowitz did not establish as a matter of law an equal or superior right allowing it to interfere with the Steck/Osh-mans contract.
The summary judgment evidence of legal justification and good faith is equally defective. The evidence relevant to this contention contains, among the other proof, the affidavit of Sakowitz’s attorney who wrote the letter to Oshmans seeking Steck’s dismissal and threatening legal action. The affidavit alleged that the letter was sent in good faith based upon the attorney’s belief that Sakowitz had a legal right to interfere with the Steck/Oshmans employment contract. However, also attached to both Sakowitz’s motion and *110Steck’s response was the unsigned non-competition agreement and Steck’s deposition testimony stating that she did not sign the contract.
An affidavit of an interested witness can be sufficient to preclude a question of fact. However, it must be “clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and [capable of being] readily controverted by the opposing party.” TEX.R.CIV.P. 166-A(c); Clear Creek, 589 S.W.2d at 676. The majority impliedly finds that the affidavit meets these requirements and then makes a critical error and holds that Steck should have then come forward by “... sworn proof to controvert the summary judgment proof_” This is not the law. Rather, as stated in Swilley v. Hughes, supra, the defendant must conclusively establish his affirmative defense. The non-movant has no' burden to controvert the movant’s proof unless such proof has first established the inovant’s defense as a matter of law. Clear Creek, 589 S.W.2d at 678. Here, the evidence is not conclusive but raises an issue of fact on Sakowitz’s good faith and legal justification. Disputed fact issues are left for a jury in a trial on the merits.
Viewing the summary judgment evidence in its most favorable light to support Steck’s claim and indulging in reasonable inferences to support her charge, Sakowitz did not establish its defense as a matter of law. While the affidavit may be some evidence of good faith and legal justification it is not conclusive. The unsigned non-competition agreement and Steck’s testimony is also some evidence that Sakowitz’s actions in sending the letter to Oshmans were not in good faith and legally justified. Furthermore, the affidavit of Sakowitz’s attorney spoke of his subjective intent, such statements are not subject to being readily controverted as required by the summary judgment rule. See Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.1975).
IV.
For the reasons stated above, I would affirm the decision of the court of appeals which remanded the cause of tortious interference to the trial court. However, in considering whether Sakowitz’s conduct was protected as a matter of law, the court should also balance the relative interests of the parties’ which were affected by the interference. RESTATEMENT (SECOND) OF TORTS § 767 (1979); PROSSER § 129. The interest of Steck which was affected by the interference is of the utmost importance. She was denied the right to earn a livelihood in her chosen profession for a period of one year. Furthermore, the alleged damages suffered by Sakowitz were, under the current state of the record, uncertain.
In this connection, it should be recognized that the alleged agreement upon which Sakowitz bases its justification contains a non-competition covenant. While it is true that this court has upheld such contracts, we have recognized that they effectuate a restraint on trade and must be reviewed with adequate care to determine their reasonableness. E.g., Frankiewicz v. National Comp Associates, 633 S.W.2d 505 (Tex.1982). The enforceability of the current provision is not now before us. However, to allow Sakowitz to interfere with the Steck/Oshmans contract effectively allows them to enforce an agreement that has not been established as reasonable or shown to have been executed.
The same problem presented to this court was addressed by the Supreme Court of Minnesota. Bennett v. Storz Broadcasting Co., 270 Minn. 525, 134 N.W.2d 892 (1965). In Bennett a radio announcer (Bennett) had a signed contract with the defendant broadcasting company which restricted his ability to work at other radio stations in the Minneapolis area for eighteen (18) months after he left the defendant’s employ. Bennett resigned his position at the defendant’s station and began contract negotiations with another station within the restricted area. This fact was made known to the defendant who sent, through its attorneys, the following letter to Bennett’s new employer:
We [attorneys for defendant] are authorized to advise you that if there is any *111violation of the contract referred to [the non-competition contract] on the part of Mr. Bennett that we will be instructed to institute legal proceedings.
134 N.W.2d at 894, 895. The potential employer withdrew from contract negotiations and Bennett then sued defendant for contractual interference. The defendant moved for summary judgment under the applicable Minnesota statute which is similar to our Rule 166-A. See 134 N.W.2d at 897. In its motion for summary judgment, the defendant alleged “legal justification” as grounds to defeat Bennett’s claim. Attached to the motion was the affidavit of defendant’s attorney asserting alleged justification. The trial court granted the defendant’s motion.
The Minnesota Supreme Court recognized that a privilege may exist under certain facts and that such privilege is provided for under § 773 of the RESTATEMENT (SECOND) OF TORTS. However, they held that such assertions of privilege are ones upon which the defendant has the burden of proof and ordinarily present a fact question for the jury. Therefore, after reviewing the record and weighing the relative interests affected by the defendant’s interference, the court remanded the cause for trial on the merits. In reaching this conclusion the court said:
A man’s right to labor in any occupation in which he is fit to engage is a valuable right, which should not be taken from him, or limited, by injunction, except in a clear ease showing the justice and necessity therefor.
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Here the record does not establish as a matter of law that the restrictive covenant is enforceable, nor does it establish that the economic interest of the [defendant] would in any way be affected by the employment of plaintiff ....
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The courts have not attempted to formulate a rule by which justification or lack of justification may be determined, but have said that in general the issue is largely one of fact for the jury ....
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Moreover, ... the burden of proving justification is upon the defendant.
134 N.W.2d at 899-901.
I would follow a similar rule. The summary judgment evidence in this case does not establish Sakowitz’s good faith and justification as a matter of law.
Y.
In conclusion, I agree with the court’s holding that Texas recognizes the qualified privilege of a person to interfere with the contractual relations of another. However, this assertion of “privilege” is an affirmative defense and a proper application of summary judgment law leads to the conclusion that fact issues remain for a jury to determine whether or not Sakowitz was acting in good faith and with legal justification when they sent the letter to Oshmans. Therefore, I would affirm the judgment of the court of appeals which affirms the summary judgment for Sakowitz on Steck’s libel claim, see James v. Brown, 637 S.W.2d 914 (Tex.1982), but remands her cause of action for interference with contract.
CAMPBELL and RAY, JJ., join in this Dissenting Opinion.
. Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc., 604 P.2d 1090, 1095 (AK 1979); Chanay v. Chittenden, 115 Ariz. 32, 563 P.2d 287, 292 (1977); Herron v. State Farm Mut. Ins. Co., 56 Cal.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310, 312 (1961); Owen v. Williams, 322 Mass. 356, 77 N.E.2d 318, 321 (1948); Wilkinson v. Powe, 300 Mich. 275, 1 N.W.2d 539, 542 (1942); Bennett v. Storz Broadcasting Co., 270 Minn. 525, 134 N.W.2d 892, 901 (1965); Smith Dev. Co. v. Bilow Enter. Inc., 112 R.I. 203, 308 A.2d 477, 482 (1973); Mitchell v. Aldrich, 122 Vt. 19, 163 A.2d 833, 836 (1960); Scymanski v. Dufault, 80 Wash.2d 77, 491 P.2d 1050, 1056 (1971); see also Forro Precision, Inc. v. I.B.M., 673 F.2d 1045, 1053 (9th Cir.1982); Smith v. American Guild of Variety Artists, 349 F.2d 975, 981 (8th Cir.1965); Israel v. Wood Dolson Co., 1 N.Y.2d 116, 134 N.E.2d 97, 151 N.Y.S.2d 1 (N.Y.1936).