Richard B. GOSSARD, et al., Appellants, v. ADIA SERVICES, INC., Appellee, 723 So. 2d 182

PER CURIAM. We have for review the following question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in the federal courts and for which there appears to be no controlling precedent: WHETHER FLORIDA LAW RECOGNIZES A CLAIM FOR TORTIOUS INTERFERENCE AGAINST A CORPORATION WHICH PURCHASES AS A SUBSIDIARY A CORPORATION WHICH HAS A PREEXISTING OBLIGATION NOT TO COMPETE AGAINST ITS FRANCHISEE, PLAINTIFF HEREIN, AND SUBSEQUENTLY PURCHASES ANOTHER SUBSIDIARY WHICH IS IN DIRECT COMPETITION WITH THE FRANCHISEE? Gossard v.

Adia Services, Inc., 120 F.3d 1229, 1231 (11th Cir.1997). We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. For the reasons expressed in this opinion, we answer the question in the affirmative provided there is evidence proving the elements of tortious interference with a business relationship we set forth in Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994). The Court of Appeals set forth the following relevant background information: In 1974, Larry Carr founded a business which provided nurses to health care facilities and private clients on a temporary basis.

Within four years, Carr began selling franchises subsequently named Nurse-finders, Inc. In May of 1986, Richard Gos-sard purchased a franchise which covered, among other areas, Florida’s west coast. The franchise agreement contained an exclusivity clause which provided that neither Nursefinders “nor any person or firm authorized or licensed by it shall establish an office for the purposes” of providing competing services within the franchise territory.

However, Carr and Gossard testified that during negotiations over the franchise, they agreed that neither Nursefinders, nor its parent or affiliates, would provide similar services within the franchise territory. In the beginning of 1987, Adia purchased Nursefinders. In June of 1988, Adia purchased Star-Med, a company likewise involved in the field of temporary nursing help. Gossard then filed this action alleging that by purchasing Star-Med, Adia caused Nursefinders to violate its promise of non-competition within a franchisee’s territory.

In defense, Adia argued that it did nothing to interfere with and was under no contractual or fiduciary duty to abide by the exclusivity clause of the franchise agreement between Nursefinders and Gossard. The jury found for Gossard on the factual issues and awarded $2,488,000. Gossard, 120 F.3d at 1230-31. In the federal district court, the United States magistrate stated: In this suit, the plaintiffs alleged in Count I that Adia had tortiously interfered with their franchise agreements with Nur-sefinders. The theory of the tort wavered throughout the trial.

The plaintiffs settled on the contention that, by purchasing Star-Med, the defendant caused Nursefin-ders to violate its promise that neither a parent nor affiliate would provide similar services within a franchisee’s territory. Although this theory seemed to me to be of doubtful validity, it was sent to the jury to see whether the theory had been factually established. There were plainly factual disputes, such as the construction of the franchise agreements, that could have ended the matter if resolved in the defendant’s favor. The jury, however, found for the plaintiffs on the factual questions.

This circumstance thus raises the issue whether the plaintiffs’ theory on Count I is legally viable. Gossard v. Adia Services, Inc., 922 F.Supp. 558, 560 (M.D.Fla.1995).

In beginning his analysis of whether Gossard’s legal theory was viable under Florida law, the magistrate noted that Florida defines the tort of intentional interference with a contract consistent with the Restatement (Second) of Torts, which provides: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Restatement (Second) of Torts, § 766 (1979). Finding no evidence which would suggest that Adia “induced” Nursefinders to breach the franchise agreement, the magistrate addressed whether Adia “otherwise caused” Nursefinders to violate its franchise agreements. The magistrate concluded that Adia did not “otherwise cause” Nursefinders to violate the franchise agreements and entered a judgment as a matter of law in Adia’s favor.

The court reasoned that “[Adia] took no action at all toward Nursefinders” and that the Restatement “clearly demands something far more direct than what occurred here to Nursefinders.” Gossard, 922 F.Supp. at 561. On appeal, the circuit court framed the issue as whether “Adia ‘otherwise caused’ Nursefinders to violate the franchise agreements.” Gossard, 120 F.3d at 1231. Finding no Florida case law on point, the circuit court certified the aforementioned question. The Eleventh Circuit, in its opinion certifying this question to us references our decision in Ethan Allen, Inc. v.

Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994), in which we set forth the elements of tortious interference with a business relationship: The elements of tortious interference with a business relationship are “(1) the existence of a business relationship ... (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.” Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985).

A protected business relationship need not be evidenced by an enforceable contract. Id. However, “the alleged business relationship must afford the plaintiff existing or prospective legal or contractual rights.” Register v. Pierce, 530 So.2d 990, 993 (Fla. 1st DCA 1988). Id. at 814. We further stated that: As a general rule, an action for tortious interference with a business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered. Id. at 815.

From the factual background provided by the federal circuit and district courts, we understand Gossard’s claim to be based on the following assertions. Nursefinders and Gossard had an “agreement” that neither a parent nor affiliate of Nursefinders would provide similar health care services within Gossard’s territory. Adia was aware of this “agreement” at the time it purchased Nurse-finders. Adia then purchased Star-Med, a direct competitor of Gossard located in Gos-sard’s territory. Consequently, Star-Med became Nursefinders’ affiliate by virtue of their common parent, Adia.

Therefore, by purchasing Star-Med, Adia knowingly caused Nursefinders to be in breach of its “promise” to Gossard that neither a parent nor affiliate of Nursefinders would provide similar health care services within Gossard’s territory. Stated another way, because of Adia’s purchase of Star-Med, Nursefinders had “no choice” but to be in violation of its franchise agreement with Gossard. See Restatement (Second) of Torts, § 766 cmt. h. (1979).

Assuming the trial record contains sufficient evidence to support this theory, we conclude that these allegations establish a prima facie case of tortious interference under our decision in Ethan Allen. We hold that our precedent is consistent with

section 766 of the Restatement and comment h. thereto. Gossard’s assertions regarding Adia’s conduct in this case fall within the “otherwise causing” language of the Restatement. Accordingly, we answer the certified question in the affirmative on the basis we have stated in this opinion and return the record to the United States Court of Appeals for the Eleventh Circuit. It is so ordered. HARDING, C.J., and OVERTON, SHAW, WELLS and PARIENTE, JJ., concur. ANSTEAD, J., dissents with an opinion, in which KOGAN, J., concurs. .Comment h. to

section 766 reads as follows: Inducing or otherwise causing. The word "inducing” refers to the situations in which A causes B to choose one course of conduct rather than another. Whether A causes the choice by persuasion or by intimidation, B is free to choose the other course if he is willing to suffer the consequences. Inducement operates on the mind of the person induced.

The phrase "otherwise causing” refers to the situations in which A leaves B no choice, as, for example, when A imprisons or commits such a battery upon B that he cannot perform his contract with C, or when A destroys the goods that B is about to deliver to C. This is also the case when performance by B of his contract with C necessarily depends upon the prior performance by A of his contract with B and A fails to perform in order to disable B from performing for C. This rule stated in this

Section applies to any intentional causation whether by inducement or otherwise. The essential thing is the intent to cause the result. If the actor does not have this intent, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.