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Texas Tortious Interference with Prospective Business Relations

To prevail on a claim for tortious interference with prospective business relations, the plaintiff must establish: 1) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third party; 2) the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct; 3) the defendant's conduct was independently tortious or unlawful; 4) the interference proximately caused the plaintiff injury; and 5) the plaintiff suffered actual damage or loss as a result. Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 923 (Tex. 2013). One of the more difficult elements of this claim is the requirement that the defendant's conduct be independently tortious or unlawful. Conduct which is merely "sharp" or perceived as "unfair competition" is not actionable as tortious interference with prospective business relations. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713, 726 (Tex. 2001). The plaintiff is not required to prove the independent tort, only establish that the defendant's conduct would be actionable under a recognized tort. Id. Trespass, for example, is an independent tort that can support a claim for tortious interference with prospective business relations. Coinmach, at 924.

Justification is an affirmative defense to tortious interference with contract and tortious interference with prospective business relations.  The Prudential Ins. Co. of America v. Financial Review Serv., Inc., 29 S.W.3d 74, 78 (Tex. 2000).   The justification defense can be based on the exercise of either 1) one's own legal rights or 2) a good-faith claim to a colorable legal right, even though that claim ultimately proves to be mistaken.  Id. at 80 (citing Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex. 1996)).   If a trial court finds as a matter of law that the defendant had a legal right to interfere with a contract, the defendant has conclusively established the justification defense, and the motive is irrelevant. Id.  Alternatively, if the defendant cannot prove justification as a matter of law, it can still establish the defense if the trial court determines that the defendant interfered while exercising a colorable right, and the jury finds that, although mistaken, the defendant exercised that colorable right in good faith. Id.