Opinion
No. WD 64282
June 21, 2005
Appeal from the Circuit Court of Jackson County, Honorable Frank D. Connett, Jr., Judge.
Sprint Spectrum, L.P., appeals the circuit court's judgment granting John Stehno a new trial in his lawsuit against it in which he claimed that Sprint Spectrum and one of its contractors, Amdocs, Ltd., tortiously interfered with his business expectancy of an ongoing relationship with his employer, Modis, Inc. Sprint Spectrum contends that Stehno did not make a submissible case; hence, the circuit court erred in granting his motion for a new trial. We disagree and affirm the circuit court's judgment.
Stehno was an employee of Modis, a provider of information technology personnel. Modis contracted with Amdocs to supply Amdocs with temporary workers for it to use in fulfilling its contract with Sprint Spectrum, which did business as Sprint PCS. Amdocs had contracted with Sprint Spectrum to help it develop a billing system. Before Modis hired him, Stehno had worked on other projects involving Sprint Spectrum as a temporary contract worker.
Before Amdocs accepted Modis' offer of Stehno's services, Amdocs interviewed Stehno and checked his references. It consulted with Derek Sherry, the senior director of Sprint Spectrum's billing system project, who approved using Stehno on the project.
During Stehno's first week of working for Amdocs on Sprint Spectrum's project, Jan Richert, a senior manager in Sprint Spectrum's data management department, learned that Stehno was working on the project. Richert was not involved with the project, but she sent an e-mail message to Amdocs' personnel with a copy to Sherry in which she challenged the need for using contractors on the project and questioned using Stehno in particular. Concerning Stehno, Richert's message said, "We would not recommend John Stehno returning to work on SPCS systems." She did not identify to whom "we" referred. After a telephone conversation concerning the issues with Amdocs' personnel, Richert sent another e-mail message the next day in which she described Stehno as "high maintenance" and "a magnet for conflict." She added, "Considering the fact that [Stehno] has already been hired by Amdocs and has been onsite for four days, I am not going to make the decision on John's fate. I think that should be Amdocs decision."
We assume that SPCS was an acronym for Sprint PCS.
Igor Ivensky, one of Amdocs' managers, responded to Richert via e-mail: "Definitely we are not going to bring somebody that SPCS does not recommend." In a subsequent e-mail message, he said, "Today would be John's last day in our office. It's AMDOCS decision. I do not want to keep people that you are uncomfortable with." After Amdocs terminated its relation with Stehno, Modis fired him because it had no other assignments for him.
Stehno sued Amdocs and Sprint Spectrum for tortious interference with his business expectancy. After trial, the jury returned verdicts for Amdocs and for Sprint Spectrum, and Stehno moved for a new trial. The circuit court granted Stehno's motion as to Sprint Spectrum, finding that the verdict was against the weight of the evidence. Sprint Spectrum appeals, challenging the circuit court's decisions to deny its motion for directed verdict and to grant Stehno's motion for new trial.
In considering Sprint Spectrum's appeal, we need focus only on whether or not Stehno made a prima facie case — that is, whether or not he submitted substantial evidence that, if believed, established all five elements of his claim of tortious interference against Sprint Spectrum. This is because the circuit court has broad discretion in deciding whether or not to grant a new trial on the ground that the verdict was against the weight of the evidence, "`[a]nd its ruling upon that ground will not be disturbed, except in case of manifest abuse.'" Robinson v. Wampler, 389 S.W.2d 757, 760 (Mo. 1965) (quoting Dawson v. Scherff, 281 S.W.2d 825, 831 (Mo. 1955)). The appellate courts have added, "`As long as [a] plaintiff makes a submissible case, the court's grant of a motion for new trial on this ground is virtually unfettered.'" McCormack v. Capital Electric Construction Company, Inc., 35 S.W.3d 410, 414 (Mo.App. 2000) (quoting Brown v. Lanrich, Inc., 950 S.W.2d 235, 237 (Mo.App. 1997)). We conclude that, because Stehno made a prima facie case, the circuit court did not abuse its discretion in granting Stehno's motion for a new trial.
In arguing that Stehno did not make a prima facie case, Sprint Spectrum asserts that Stehno did not establish two of the five elements of tortious interference. The tort's five elements are (1) a valid, reasonable business expectancy; (2) defendant's knowledge of the relationship giving rise to the expectancy; (3) loss of the expectancy as a direct result of defendant's intentional interference; (4) an absence of justification for defendant's action; and (5) damages sustained by plaintiff as a result. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993). Sprint Spectrum contends that Stehno did not present evidence that, if believed, established the first and fourth elements.
As for Stehno's alleged business expectancy, Sprint Spectrum argues that Stehno could not have a reasonable expectation of future or continued work for Amdocs on Sprint Spectrum's project because he was a temporary, contract worker. It also argues that a business expectancy cannot be contrary to the plain language of an underlying contract, and its contract with Amdocs gave it the right to remove Stehno.
To show a reasonable business expectancy, Stehno's burden was to show a probable future business relationship from which he anticipated receiving financial benefits. Eib v. Federal Reserve Bank of Kansas City, 633 S.W.2d 432, 435-36 (Mo.App. 1982). To show that his expectation was reasonable, Stehno was obligated to establish that it was more than merely speculative or conjectural. Misischia v. St. John's Medical Mercy Center, 30 S.W.3d 848, 863 (Mo.App. 2000).
Although Modis hired Stehno for the purpose of referring him to Amdocs for temporary, contract work and although he was Modis' at-will employee, Stehno presented evidence that he had a reasonable expectancy of receiving financial benefits as a result of that relationship. At-will employment does not necessarily defeat a claim for tortious interference with a business expectancy. Hensen v. Truman Medical Center, Inc., 62 S.W.3d 549, 553 (Mo.App. 2001). This is because the relationship of employer-employee, until it is terminated, is a persistent relationship that is of value to the plaintiff and that is presumably continual. Moreover, Stehno presented evidence that, as a result of Modis' referring him to Amdocs for work on the project, he had a reasonable basis for expecting to become Amdocs' permanent employee.
Stehno presented substantial evidence that he had a reasonable basis for expecting to work with Amdocs for more than five days. He offered evidence that, but for interference by Richert, who acted as Sprint Spectrum's agent, that relation would have continued. Moreover, his evidence suggested that Modis' employees often became permanent employees of Amdocs. Jake Amir, Modis' managing director, testified that between one-half to three-quarters of the contractors placed at Amdocs became permanent Amdocs employees and that Modis' contract with Amdocs allowed Amdocs to convert Modis employees to full-time Amdocs employees. Amdocs used this provision frequently, he said. Although the contract imposed a fee if Amdocs converted a temporary contractor within six months, Amdocs "[a]lmost never" paid the fee because it would typically hire temporary contractors after six months. Thus, Stehno's evidence, viewed in a light most favorable to him, could support a finding that Stehno had a business expectancy that his relation with Modis and Amdocs would endure for more than five days but for Sprint Spectrum's interference.
In addition, several witnesses testified that Sprint Spectrum's and Amdocs' personnel highly respected Stehno's work on the billing system project. Ivensky testified that, after working on the project for four days, he thought Stehno's "technical background was considerable." Haim Keren, an Amdocs project manager, interviewed Stehno and stated that Stehno had a "unique set of skills not common among [database administrators] . . . with which he can plan and solve problems . . . in a unique and more effective way." With Stehno's technical knowledge, Keren believed Stehno could "perform very efficiently . . . on the fly." Keren recommended that Amdocs take on Stehno as a team leader and testified that doing so would make sense only if Amdocs anticipated keeping Stehno on a long-term basis. Richert was the only person to comment negatively on Stehno's work, and her comments were about his work on earlier projects — not the one to which Amdocs assigned him.
In arguing a contrary position, Sprint Spectrum relies on Service Vending Company v. Wal-Mart Stores, Inc., 93 S.W.3d 764 (Mo.App. 2002), and Hartbarger v. Burdeau Real Estate Company, 741 S.W.2d 309 (Mo.App. 1987). Both cases involved situations in which the courts ruled that the plaintiffs in tortious interference claims did not have a reasonable business expectancy because the claimed expectations were contrary to contracts.
Sprint Spectrum uses these cases to argue that, because its contract with Amdocs permitted it to disapprove of any of Amdocs' workers, Stehno did not have a reasonable basis for expecting an ongoing relation with Amdocs without Sprint Spectrum's interference. To the contrary, Stehno presented evidence that Amdocs' obligation was to seek Sprint Spectrum's approval of the workers that it used and that Amdocs obtained Sprint Spectrum's approval of Stehno before putting him to work on the project. Viewed in a light most favorable to Stehno, the contract did not provide for what Richert sought to do — renege on Sprint Spectrum's approval. Having gained Sprint Spectrum's approval, Stehno had a reasonable basis for believing that his relation with Amdocs would persist without the type of interference that Richert exerted.
Sprint Spectrum argues next, in a closely related point, that Stehno did not present substantial evidence that it acted without justification. It argues that it was entitled to protect its economic interests and that it had a legal right — granted by its contract with Amdocs — to remove Stehno.
A defendant acts without justification if he acts without legal right in a manner complained of by the plaintiff. Macke Laundry Service Limited Partnership v. Jetz Service Company, Inc., 931 S.W.2d 166, 181 (Mo.App. 1996). Although defendants have a right to protect their economic interests, they may not employ improper means to do so. Nazeri, 860 S.W.2d at 317. "A means is improper if it involves acts that are `independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or the common law.'" Hensen, 62 S.W.3d at 555.
Stehno presented evidence that Sprint Spectrum acted without justification through its agent Richert by encouraging Amdocs to replace Stehno after having previously acted through another agent, Sherry, to approve him. Stehno presented evidence that Richert's comments about him were not related to any alleged economic interest but were based on her personal dislike of Stehno. Richert was involved minimally with Stehno, and Stehno had little interaction with Sprint Spectrum personnel. Before this incident, Sprint Spectrum had praised Stehno's skill and had renewed contracts to use him as its own temporary worker several times.
Sprint Spectrum argues that Eggleston v. Phillips, 838 S.W.2d 80, 83 (Mo.App. 1992), controls and is fatal to Stehno's claim. The Eggleston court said, "To support a cause of action for intentional interference with a contract or business expectancy by a supervising employee over an at will employee requires evidence eliminating any business justification at all for the termination — a level of proof close to impossible to achieve." Id. (holding that at-will employee could not establish that employer lacked justification for terminating her). Eggleston is inapposite. Stehno was not Sprint Spectrum's at-will employee. Had he been Sprint Spectrum's employee, Sprint Spectrum would have had nearly free reign to terminate him, and Stehno would be hard pressed to establish a claim for tortious interference. But he was Modis' employee and was working for Amdocs under its contract with Modis. This obligated Sprint Spectrum to avoid interfering unduly with Stehno's relationship with Modis and Amdocs. Hensen, 62 S.W.3d at 554.
The circuit court did not err. Stehno made a submissible case. He presented evidence that, if believed, supported a conclusion that he had a valid business expectancy and that Sprint Spectrum lacked justification for its actions in that it was not protecting an economic interest nor exercising an unqualified contractual right. Although Sprint Spectrum did present contrary evidence, Stehno made a submissible case. The circuit court, therefore, did not abuse its discretion in granting Stehno's motion for new trial.
For these reasons, we affirm the circuit court's judgment.
Joseph M. Ellis, Presiding Judge, and Victor C. Howard, Judge, concur.