concurring in part and dissenting in part: I agree with the majority that summary judgment cannot be granted to Cingular Wireless, but I cannot agree that M West has provided sufficient evidence to avoid summary judgment in favor of Oak Park Mall.
Cingular s written offer on April 7,2006, purported to have three conditions precedent to the formation of a contract, and two of the three were under Cingular s control: approval by Cingular s “Real Estate Committee” and the execution of a formal document agreeable to both parties. On the evidence presented by M West, the third condition — the consent of Oak Park Mall, Cingulars landlord — also may have been effectively controlled or influenced by Cingular. The majority correctly notes that Cingulars offer, which M West accepted, contained íots of language that appeared to make it a binding contract offer and that it contained all of the material terms for the lease assignment. Thus, Cingular had a duty of good faith and fair dealing to M West not to rely upon conditions under Cingulars control to prevent formation of the contract. M West has presented sufficient evidence that this duty may have been violated through Cingulars later interactions with Oak Park Mall.
Rut that does not make Oak Park Mall hable for tortious interference with the potential business advantage M West might have gained from taking over Cingular s lease. To avoid summaiy judgment, M West must have some evidence to support a reasonable inference that Oak Park Mall acted with malice — sometimes phrased as acting without privilege or justification — when denying approval of the assignment. See Turner v. Halliburton Co., 240 Kan. 1, 12-13, 722 P.2d 1106 (1986); Linden Place v. Stanley Bank, 38 Kan. App. 2d 504, Syl. ¶ 7, 167 P.3d 374 (2007); Mediware Information Systems, Inc. v. McKesson Information Solutions, 2007 WL 926142, at *4 (D. Kan. 2007) (unpublished opinion).
M West recognized in its motion to reconsider in the district court that its cause of action for tortious interference was “predicated on malicious conduct by the defendant.” See Burcham v. *63Unison Bancorp, Inc., 276 Kan. 393, 425, 77 P.3d 130 (2003). M West also recognized that Oak Park Mall eventually negotiated a deal for itself with Cingular that was to Oak Park Mall’s financial advantage. M West then argued that this supported an inference of malicious conduct in that “Oak Park was interested in M West and Cingular submitting a proposal so that Oak Park could then negotiate a better deal for itself.” But merely acting in one’s own financial interest does not establish malicious conduct, which is conduct done with an intent to harm another party without reasonable justification. See Linden Place, 38 Kan. App. 2d at 513.
Thus, other courts have properly granted summary judgment when — as is the case here — there was no specific evidence of malicious intent and a mortgage holder or a lessor has exercised its contractual right to deny approval to a lease or lease assignment. E.g., RAN Corp. v. Hudesman, 823 P.2d 646 (Alaska 1991) (summary judgment properly granted against interference-with-contractual-relations claim when lessor exercised his contractual right to deny approval of lease assignment and plaintiff had no evidence that lessor did so for spiteful motives); Schulman v. J.P. Morgan Inv. Management, Inc., 35 F.3d 799 (3d Cir. 1994) (summaryjudgment granted against interference-with-contractual-relations claim when lender/mortgage holder exercised its contractual right to disapprove prospective building tenant). In more general circumstances, courts have granted summary judgment against interference-with-contractual-relations claims when the defendant presented evidence that it acted out of legitimate business interests and there was a lack of evidence of malice or general bad motive. E.g., Linden Place, 38 Kan. App. 2d at 513-14; Scudder v. International Air Service Co., Ltd., 1998 WL 560070 (9th Cir. 1998) (unpublished opinion) (summary judgment granted against interference-with-contractual-relations claim in absence of evidence that defendant acted out of malice rather than to protect its own financial interest).
Like the district court, I would conclude that, absent speculation, there is no evidence that Oak Park Mall intended to injure M West by denying approval of the lease assignment. Oak Park Mali’s comments of liking the idea of a potential lease assignment to M *64West and that the agreement sounded “fine” do not demonstrate malice. Oak Park Mall was within its rights when it encouraged the potential agreement between Cingular and M West, waited to see whether that offer comported with its own business needs, and then negotiated with Cingular for an outcome that would better meet Oak Park Mall’s business interests. I would therefore affirm the district court’s grant of summaiy judgment to Oak Park Mall.