Tortious Interference Claim: No Contract? No Problem.

Litigation Client Alert

January 16, 2015

Gerd W. Stabbert, Jr.

Gerd W. Stabbert, Jr.


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Lack of an executed contract is an insufficient reason to dismiss tortious interference with prospective economic advantage and related tort claims.

In D’Agostino v. Gesher, LLC, the New Jersey Appellate Division held that an absence of a contract is not a basis for dismissing a tortious interference with prospective economic advantage claim. A-1040-12 (N.J. App. Div. Jan. 7, 2015). There, plaintiff filed suit against a property seller’s brokers and attorneys alleging that they interfered with his negotiations to purchase property. Plaintiff alleged that he submitted an offer to purchase property to defendant brokers that exceeded the seller’s asking price, and that the brokers failed to submit plaintiff’s offer to the seller, added false terms to a counteroffer, arranged for another’s purchase of the property below value, and attempted to conceal the transaction.

Plaintiff’s claims included tortious interference with prospective economic advantage, negligence, conspiracy, and fraud. The trial court dismissed all claims on the ground that the action was based in contract and plaintiff’s claims failed because there was never an agreement for the transfer of the property.

The Appellate Division found that the trial court, in dismissing plaintiff’s suit, failed to consider the elements of tortious interference with prospective economic advantage: “(1) a protectable interest; (2) malice - the defendant’s intentional interference without justification; (3) a reasonable likelihood that the interference caused the loss of a perspective gain; and (3) resulting damages.” Id. at 12-13, citing Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 751-52 (1989). Specifically, as to the first element, the Appellate Court held that the existence of a fully executed contract is immaterial for liability on defendants’ tortious conduct that allegedly interfered with a party’s prospective economic advantage. Therefore, the court found, plaintiff presented sufficient evidence to sustain all of is claims and the “lack of an executed contract was not sufficient reason to deny any of them.” Id. at 18.

D’Agostino reconfirms longstanding New Jersey precedent that the law of tortious interference with prospective economic advantage protects an “interest in reasonable expectations of economic advantage,” and that “need not equate with that found in an enforceable contract.” Id. at 13, 14 citing Printing Mart-Morristown , supra, 116 N.J. at 750, 751 (emphasis added). It is the interference with a reasonably anticipated opportunity to enter into an agreement that New Jersey law protects.