Section 7.9 Improper Means" Defined

• Library: Tort Law 2016

A. (§7.9) "Improper Means" Defined

"‘Improper means’ can be any independently wrongful act recognized by statute or the common law." Cent. Trust & Inv. Co. v. SignalPoint Asset Mgmt., LLC, 422 S.W.3d 312, 324 (Mo. banc 2014) (quoting W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 20 (Mo. banc 2012)). Ultimately, "[t]he plaintiff carries the burden of affirmatively showing lack of justification." Am. Builders & Contractors Supply Co. v. Roofers Mart, Inc., No. 1:11–CV–19 (CEJ), 2012 WL 3027904, at *6 (E.D. Mo. July 24, 2012) (quoting Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 252 (Mo. banc 2006)).

In American Builders, American Builders was a construction supply company that distributed and sold exterior building products. 2012 WL 3027904, at *1. A manager of American Builders’ Cape Girardeau branch, Bernard Miller, was responsible for the day-to-day operation of that facility. Id. Roofers Mart was a direct competitor of American Builders in the construction supply market in Cape Girardeau. Id. The general manager of Roofers Mart, Jared Cruzen, was a good friend of Miller’s, and he successfully recruited him away from American Builders to work for Roofers Mart. Id. In that case, there was no dispute that American Builders and Miller had a valid noncompetition agreement. Id. at *6. The court reasoned that it was true that a "‘defendant cannot be held liable for interfering with a business relationship if he or she has an unqualified right to perform the act.’ But plaintiff . . . submitted evidence that Roofers Mart had no legal right to the interest with which they interfered." Id. (citations omitted) (quoting W. Blue Print, 367 S.W.3d at 20).

Moreover, Defendant Roofers Mart employees had notice of the contractual rights of American Builders, which were the restrictive covenants contained in Miller’s employment contract. Id. The court determined that Roofers Mart took steps to induce a breach of Miller’s obligations owed to the plaintiff under an existing contract. Id. "Thus, plaintiff need not show that Roofers Mart employed improper means in interfering with plaintiff’s contract because Roofers Mart did not have a ‘legitimate interest, economic or otherwise, in the expectancy [the] plaintiff seeks to protect.’" Id. (quoting Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 252 (Mo. banc 2006)). Regardless, because Miller misrepresented to five employees recruited by Roofers Mart that, if they remained with the plaintiff, they would need to sell a product they did not like and would be subject to seasonal layoffs, "plaintiff has met its burden of showing that the breach induced by Roofers Mart could have involved improper means." Am. Builders & Contractors Supply, 2012 WL 3027904, at *7.

In Western Blue Print, 367 S.W.3d 7, the Court determined that Roberts, a former employee, had no legal right to justify interfering with Western Blue’s valid business...