Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 132 of 139 defendants induced any Rimkus customer or client to breach any such obligation under a contract with Rimkus. The defendants’ motion for summary judgment on Rimkus’s claim for tortious interference with existing contracts is granted. Tortious interference with contract and tortious interference with prospective business relations are separate causes of action. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 716–21, 725, 727 (Tex. 2001). To establish a claim for tortious interference with prospective business relations, the plaintiff must prove that: (1) there was a reasonable probability that the plaintiff would have entered into a contract; (2) the defendant committed an intentional act, with the purpose of harming the plaintiff; and (3) actual harm or damage resulted from the defendant’s interference, i.e., that the defendant’s actions prevented the relationship from occurring. See Bradford v. Vento, 48 S.W.3d 749, 757 (Tex. 2001); Martin v. Kroger Co., 65 F. Supp. 2d 516, 563 (S.D. Tex. 1999). The plaintiff must show that the defendant’s conduct was either independently tortious or unlawful, that is, that the conduct violated some other recognized tort duty. See Sturges, 52 S.W.3d at 726; Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 632 (Tex. App.—Fort Worth 2007, pet. denied). The “prevented the relationship from occurring” element requires “at minimum, that the tortious conduct constitute a cause in fact that prevented the prospective business relationship from coming to fruition in the form of a contractual agreement. The test for cause in fact, or ‘but for causation,’ is whether the act or omission was a substantial factor in causing the injury ‘without which the harm would not have occurred.’” COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex. App.—Dallas 2004, pet. filed) (quoting Doe v. Boys Clubs of Greater 132
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 133 of 139 Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). Rimkus relies on the alleged misappropriation of trade secrets by the defendants as the independently tortious act required for a claim of tortious interference with prospective business relations. Misappropriation of trade secrets is a common-law tort cause of action under Texas law. Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004, pet. denied). Rimkus has alleged that the defendants committed an independently tortious act. The evidence in the record, however, does not raise a fact issue material to determining whether the defendants’ actions prevented a contractual relationship between Rimkus and a customer from forming. A plaintiff seeking to recover for tortious interference with prospective business relationships must establish proximate causation and damages with evidence rising above mere suspicion or speculation. See B. Cantrell Oil Co. v. Hino Gas Sales, Inc., 756 S.W.2d 781, 784 (Tex. App.—Corpus Christi 1988, no writ), superseded by statute on other grounds. 49 Absent some evidence that the defendants’ actions prevented Rimkus from entering into a business relationship with clients who instead did business with the defendants, Rimkus cannot raise a fact issue as to its claim for tortious interference with prospective business relations. Rimkus does not identify any evidence of a client with which it would have done business but for the defendants’ conduct. There is no evidence in the summary 49 See also Slaughter-Cooper v. Kelsey Seybold Med. Group P.A., 379 F.3d 285, 292 (5th Cir. 2004) (doctor who had been terminated from a clinic failed to establish that she suffered actual harm or damage when the tortious interference with prospective business relations claim rested on the speculative contention that her patients would have “sought her out” once she opened her own practice four months later had the clinic not represented to former patients that she had resigned to pursue other professional interests). 133
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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