Tomy McGuire v. Tarmac Environmental Co., Inc. and Ronald E. Heap

Tony McGuire brought a cause of action against Appellant Johnson
Olowokere for tortious interference with contract. A jury found in favor of McGuire
and awarded punitive damages against Olowokere in the amount of $100,000.
Olowokere appeals, and we affirm. McGuire contacted and solicited quotes from various companies. On or about
April 9, 1998, McGuire contacted Tarmac Environmental Co., Inc. and received price
quotes on new and used soil remediation plants. McGuire established a relationship
with Ron Heap, the President of Tarmac Environmental, and they entered into a
written contract by which Tarmac Environmental would give McGuire a brokerage
fee, commission and/or finder’s fee if McGuire located a buyer for the portable soil
remediation plant quoted by the company. The fee discussed was $250,000. The day after the contract was signed, Heap sent Olowokere a proposal that
quoted prices for a new and a used portable soil remediation plant. The used plant
was located in Bridgeport, Connecticut and the prices quoted were identical to those
negotiated by McGuire. On June 23, 1998, Olowokere confirmed his interest in
purchasing the Bridgeport plant from Tarmac Environmental and also inquired about
entering into an Operations & Maintenance Agreement with Tarmac for technical
support of equipment in Nigeria.

On June 24, 1998, McGuire and Olowokere attended a meeting with Heap and
Pat Garrett, an employee or officer of Ganco Environmental Construction, Inc.,
which could provide technical support for the equipment. Although no final
agreement was reached at this meeting, McGuire testified that the meeting and
subsequent correspondence with Olowokere indicated that the deal would go forward.
On June 29, 1998, Olowokere sent a letter to Tarmac accepting its offer to sell the
used plant in Bridgeport for the offered price of $1,275,000.00, plus an additional
$200,000 consulting fee, which Olowokere requested to pay to someone in Nigeria.
This acceptance letter also confirmed Olowokere’s desire to enter into an Operating
and Maintenance Agreement with Tarmac and Ganco.

In late June or early July of 1998, Olowokere discovered that McGuire would
earn a commission on the deal and became angry. On July 2, 1998, Olowokere sent
a letter to Heap and Tarmac Environmental stating that McGuire was not an
employee, officer, agent or partner in ORES, and had no authority to act on its behalf.
Olowokere further stated that because he had gotten to know Heap personally, there
was no reason to continue to use McGuire as an intermediary. Olowokere also sent
a copy of this letter to McGuire, and after receiving it, McGuire called Heap. Heap
informed him that he would not receive a commission on the deal, and thereafter,
McGuire was excluded from further involvement in the sale of the remediation plant.

On September 17, 1998, Tarmac Systems, Inc., a sister corporation to Tarmac
Environmental that had not previously been involved in the sale of the plant, entered
into an agreement to buy the Bridgeport plant for $ 1,175,000.00. Later, Olowokere
was involved in the indirect sale of the plant from Tarmac Systems to ORES.

McGuire brought causes of action for breach of contract against Tarmac
Environmental and for tortious interference with contract against Olowokere, Tarmac
Systems, and Ganco. At trial, the jury returned a verdict in favor of McGuire,
finding that Tarmac Environmental breached its contract with him, and that Johnson
Olowokere and Tarmac Systems tortiously interfered with McGuire’s contract to
receive a commission. The jury awarded McGuire $250,000 in actual damages and
awarded $100,000 in punitive damages against Olowokere. After the verdict,
Olowokere filed a Motion for Judgment as a Matter of Law or, in the Alternative, a
Motion for a New Trial. The district court1 denied the motions.

Olowokere now appeals, claiming that the district court erred in refusing to
grant Olowokere’s motion for judgment as a matter of law because: (1) the evidence
was insufficient to support the jury’s verdict in favor of McGuire on his claim for
tortious interference with contract and (2) the evidence was insufficient to support the
jury’s verdict assessing punitive damages against Olowokere. Olowokere also argues
that the district court erred in overruling his objection to McGuire’s counsel’s
mention of punitive damages in his rebuttal closing argument.

* * *

In Missouri, a plaintiff must prove five elements to prevail upon a tortious
interference with contract claim: (1) the existence of a contract or valid business
expectancy; (2) defendant’s knowledge of the contract or relationship; (3) a breach
induced or caused by defendant’s intentional interference; (4) the absence of
justification; and (5) damages. St. Louis Convention and Visitor’s Comm’n v.
National Football League, 154 F.3d 851, 865 (8th Cir. 1998) (citing Rice v. Hodapp,
919 S.W.2d 240, 245 (Mo. 1996) (en banc)). The Missouri courts essentially apply
a “but-for” test of causation, asking two questions: “(1) did plaintiffs actively and
affirmatively take steps to induce the breach; and if so, (2) would the contracts have
been performed absent plaintiffs’ interference?” Mueller v. Abdnor, 972 F.2d 931,
938 (8th Cir. 1992) (quoting Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d
210, 216 (Mo. Ct. App.1976)).

Upon review of the record, we find that there was sufficient evidence for a
reasonable jury to find that Olowokere knew about the contract between McGuire and
Tarmac Environmental, and that Olowokere intended to induce Tarmac
Environmental to breach the contract. There was also evidence that Olowokere’s
inducement was not justified and that the breach damaged McGuire. The evidence
indicated that Olowokere was angry to learn about McGuire’s contract with Tarmac Environmental, and that after Olowokere learned about McGuire’s commission, he
wrote to Tarmac Environmental stating that there was no longer a need for Tarmac
Environmental to have contact with McGuire. There was also evidence that
Olowokere participated in the business deal in which Tarmac Environmental
indirectly sold the remediation plant to ORES through Tarmac Systems, Inc., thereby
avoiding the obligation to pay McGuire his commission. Furthermore, there is
sufficient evidence to show that but for Olowokere’s interference, Tarmac Systems
would not have breached its contract with McGuire. Viewing all the facts in the light
most favorable to McGuire, the district court did not err in refusing to grant
Olowokere’s motion for judgment as a matter of law.

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Affirmed

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