K & K Management, Inc. v. Chul Woo Lee

ADKINS, Judge,

concurring in part and dissenting in part:

The majority’s analysis of the breach of contract, expert witness, and preservation issues in this case is thorough and scholarly. I concur in Parts I, II.A, and III.A of the majority opinion. Nor do I quarrel with its holdings as to conversion and compensatory damages as set forth in Part IXI.B.l and 2. We part company, however, on the questions of (1) whether it was proper to submit the tortious interference issue to the jury, and (2) the lack of evidence to support an award of punitive damages on the conversion claim (Part II.B and Part XILB.3).

I.

Turning first to the tortious interference issue, I am prepared to assume that if (to use the majority’s formulation) “D interferes with D’s own contract with P, D does not, on that ground alone, commit tortious interference and P’s remedy is for breach of the contract between P and D.” K & K Management, Inc. v. Chul Woo Lee, 316 Md. 137, 156 , 557 A.2d 965, 974 (1989). That two-party situation is *180 what the Court was talking about in Wilmington Trust Co. v. Clark, 289 Md. 313, 329 , 424 A.2d 744, 754 (1981), when we said we had “never permitted recovery for the tort of intentional interference with a contract when both the defendant and the plaintiff were parties to the contract.” It also explains the statement in W. Prosser, The Law of Torts § 129, at 990 (W. Keeton 5th ed.1984) to the effect that “[t]he defendant’s breach of his own contract with the plaintiff is of course not a basis for the tort.”

But this case does not involve that two-party scenario. It involves, as the majority concedes, “the Natural Design [, Inc. v. Rouse Co., 302 Md. 47 , 485 A.2d 663 (1984) ]—Restatement [(Second) of Torts (1979)] § 766B variety of the tort.” K & K, 316 Md. at 158 , 557 A.2d at 975 . The Lees’ claim is that K&K and the individual Kirbys prevented the Lees from acquiring or maintaining advantageous economic relationships with third parties (tortious interference by D with prospective business relationship between P and T).

As to that “variety of the tort,” the majority observes that interference with prospective business relations is intentional if the interferer “ ‘desires to bring it about or if he knows that the interference is certain or substantially certain to occur as a result of his action.’ ” Id. at 158 , 557 A.2d at 975 (quoting Restatement (Second) of Torts § 766B, comment d). As I shall explain further on, there is sufficient evidence here from which a jury could determine that K & K’s interfering conduct was calculated to enhance injury to the Lees and that this evidence necessarily reflects a desire to interfere. The majority analysis also finds insufficient evidence of improper conduct to permit submission of the tortious interference issue to the jury. Under § 767 of the Restatement (Second), 1 whether improper conduct exists is determined by balancing a number of factors. Thus, for example, the more egregious D’s purpose, the more likely is a finding of improper conduct. If D breaches his or her contract with P in order to prevent P’s perform *181 ance of a prospective contract between P and T (again using the majority’s symbols) so that D obtains the benefit of an economic relationship with T, a tortious interference action will lie. Sumwalt Ice & Coal Co. v. Knickerbocker Ice Co., 114 Md. 403 , 80 A. 48 (1911); Winternitz v. Summit Hills, 73 Md.App. 16 , 532 A.2d 1089 (1987), cert. denied, 312 Md. 127 , 538 A.2d 778 (1988). The same result would ensue if the means of interference are themselves illegal or tortious, as this Court observed some time ago in the Sumwalt case. 114 Md. at 413-414 , 80 A. at 50 . See also, e.g., W. Prosser, Handbook of the Law of Torts § 130, at 1007-1008 (5th ed.1984). The majority apparently also acknowledges that the cause of action would lie where the means of interference employed are either illegal or tortious. K & K, 316 Md. at 166 , 557 A.2d at 979 .

In this case there was a tort committed by K & K which interfered with the Lees’ prospective business relationships, a tort in which the Kirbys played a significant role. That tort was the unlawful conversion of the Lees’ personalty purchased through the business accounts. The Court is unanimous on the issue of K & K’s liability for that conversion. Yet the majority fails to recognize the significance of the conversion with respect to the Lees’ interference claim.

Part II.B of the majority opinion discusses, at length, the interference tort. Throughout, the focus is on the lockout (and K & K’s declaration that the Agreement was void) as breach of the contract, and breach of the contract as interference with the Lees’ prospective business relationships. I am prepared to assume that the majority is correct in concluding "[t]he means employed by the appellants to reenter [i,e., the lockout], in breach of the commercial lease between the parties, were neither illegal nor tortious.” Id. at 166 , 557 AJd at 979. But breach of the Agreement was not the sum total of the Interfering conduct. The majority’s analysis in Part II.B is almost completely devoid of any discussion of the tortious conversion, even though the Lees in Count VI of their amended complaint, specifically alleged and relied on that act as one of the two bases (the *182 other being breach of contract) for their interference claim. The majority, in a brief footnote, dismisses this assertion by stating “[t]he incidental interference with the Lees’ relationship with the Korean customers was effected by the lockout and not by the conversion of certain equipment or utensils.” K & K, 316 Md. at 167 n. 12, 557 A.2d at 980 n. 12. I cannot countenance such a cursory dismissal.

It is important to recognize that the Lees’ relationship with their Korean customers was well established prior to the moving of the Seoul Restaurant to the Harbor City Inn. When the Seoul Restaurant was located on University Parkway, it “drew general patronage from the locality and among Korean-Americans from the greater metropolitan area. The Seoul Restaurant became the place for luncheon and dinner meetings of Korean organizations and for social functions within the Korean community.” Id. at 141 , 557 A.2d at 967 . There was substantial evidence presented at trial that this patronage followed the restaurant to its new location in the Harbor City Inn. The significance of that following cannot be gainsaid. It strongly suggests that the relationship was not dependent on the restaurant’s location in a particular place in Baltimore; rather, the customer’s relationship was with the restaurant itself and with the family that ran it. When K & K effected the lockout, it interfered with that relationship by barring the Lees from operating the Seoul Restaurant in that particular location. But as I stated earlier, this was not the sum of the interference with the Lees' prospective business relationships. When K & K unlawfully converted the Lees’ chattels, it substantially interfered with the Lees’ relationship with their Korean customers by limiting the Lees’ ability to establish the Seoul Restaurant elsewhere in Baltimore. The property wrongfully converted by K & K was of no small significance. It consisted of 10 banquet tables, 150 chairs, stereo, refrigerator, freezer, large and small stove, slicer, cash register, amplifier, band equipment, cooking equipment (e.g., pots, pans, etc.), glassware, dishes, tableware, *183 office desk and chair, ice machine, ice crusher, small ice cream freezer, and bar equipment.

To highlight the importance of the conversion interference, I offer the following example. P, a plumber, leases a truck from D. D materially breaches the contract by repossessing the truck without legal justification. In doing so, D also wrongfully converts all of P’s plumbing equipment on the truck at the time of the repossession. The relationship that P has with his prospective customers is not dependent on his using a particular truck. Rather, the relationship is dependent on his being able to offer a particular service, of which the truck is only a component part. P could have leased, borrowed, or bought another truck and continued serving his customers, but for the fact that he no longer possesses the plumbing equipment necessary to continue this service. In this example, undoubtedly, the repossession and the conversion both collectively and singly effect interference with P’s prospective business relations.

Once it is recognized, in the case at bar, that the breach of the Agreement and the conversion both collectively and singly effected interference with the Lees’ relationship with the restaurant’s customers, several of the cases on which the majority relies are readily distinguishable. For instance, the majority cites DiCesare-Engler Prods., Inc. v. Mainman, Ltd., 81 F.R.D. 703 (W.D.Pa.1979), as “recognizing [the] rule that malicious interference does not lie for incidental interferences arising from a breach of contract. ...” K & K, 316 Md. at 165 , 557 A.2d at 978 . It also cites Glazer v. Chandler, 414 Pa. 304, 308 , 200 A.2d 416, 418 (1964), for the proposition that “ ‘where ... the allegations and evidence only disclose that defendant breached his contracts with plaintiff and that as an incidental consequence thereof plaintiff’s business relationship with third parties have been affected, an action lies only in contract for defendant’s breaches, and the consequential damages recoverable, if any, may be adjudicated only in that action.’ ” K & K, 316 Md. at 165 , 557 A.2d at 979 [emphasis supplied]. Quite plainly there are, in this case, *184 allegations and evidence of something more than a simple breach of contract. Although the conversion arises out of the contract, id. at 174 , 557 A.2d at 983 , in no fashion can this tort and its resultant interference be categorized as incidental to the breach of that contract. The fact that the tort arises out of a contract is significant only in connection with the kind of malice that must be established in order to recover punitive damages for the conversion. See General Motors Corp. v. Piskor, 281 Md. 627, 636-637 , 381 A.2d 16, 22 (1977); Henderson v. Maryland Nat’l Bank, 278 Md. 514, 519 , 366 A.2d 1, 4 (1976); H & R Block v. Testerman, 275 Md. 36, 44-45 , 338 A.2d 48, 53 (1975). It does not alter the conclusion that the conversion tort is independent of the breach of contract. At most, the breach of contract supplied K & K with the opportunity to commit the conversion.

It may be that simply proving that the interference was effectuated by means of a tort is sufficient to meet the malice element of the cause of action. 2 See Tamiami Trail Tours v. Cotton, 463 So.2d 1126 (Fla.1985), aff’g in part and rev’g in part, 432 So.2d 148 (Fla.App.1983) (discussed by the majority at 316 Md. at 166 , 557 A.2d at 979 ). That said, however, there is additional evidence of malice in this case such that the existence of the tort of conversion need not be relied on as the exclusive evidence of malice.

Even if the interference attributable to the conversion is discounted, the combination of the closing of the restaurant and the conversion, coupled with the attendant circumstances, is sufficient to maintain the interference claim. If the breaching party's “outrageous acts” go beyond simple breach of contract, an action for tortious interference with business relationships with third parties may be maintained. Bolz v. Myers, 200 Mont. 286, 292-295 , 651 P.2d 606, 609-611 (1982). A breach of contract coupled with intent to *185 injure is enough to satisfy the “improper means” requirement. Leigh Furniture and Carpet Co. v. Isom, 657 P.2d 293, 309-311 (Utah 1982). A bad faith breach of contract, which a jury might well have found here, may be sufficient if coupled with foreseeability of its adverse effect on relations between P and T. Cherberg v. People’s Nat’l Bank of Washington, 88 Wash.2d 595 , 564 P.2d 1137 (1977).

In other words, the mere breach of a contract between P and D may not supply grounds for a tortious interference action, even if P’s relationships with T are, to some degree, adversely affected. But if the breach is attended by “improper conduct,” the action will lie. Certainly, if D’s breach and subsequent unlawful conduct is attended by “malice,” P should be able to recover.

For purposes of the interference tort we are discussing, “malice” does not always have to be actual malice or ill will. Although mere breach of a contract is not enough, “malice” may, in proper circumstances, consist of “the intentional doing of a wrongful act without legal justification or excuses.” Cumberland Glass Mfg. v. DeWitt, 120 Md. 381, 392 , 87 A. 927, 931 (1913), aff'd, 237 U.S. 447 , 35 S.Ct. 636 , 59 L.Ed. 1042 (1915). 3 I need not dwell, however, on nice distinctions between different varieties of malice. The act of conversion was accompanied by circumstances that permitted the jury, in my view, to find actual malice; that same malice is present for purposes of tortious interference. I think there was enough evidence of malice to go to the jury.

Actual malice “has been characterized as the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff.” H & R Block v. Testerman, 275 Md. 36, 44-45, 338 A.2d 48, 53 (1975). I agree with the majority “that proving actual *186 malice, as we have so characterized it, is sometimes an onerous burden,” and that in this case, “there is no direct evidence of actual malice.” K & K, 316 Md. at 175 , 557 A.2d at 984 . I also agree, however, that actual malice can be inferred from circumstantial evidence. Id. at 175 , 557 A.2d at 984 . In Henderson v. Maryland Nat’l Bank, 278 Md. 514, 520 , 366 A.2d 1, 4 (1976), we recognized that “[i]n the commercial sphere, ... where an impersonal relationship is more likely to prevail, such emotions as anger or spite are not always vented in a direct manner, and not infrequently find their expression in the facts and circumstances surrounding the tortious conduct.”

Henderson involved a plaintiff who had brought a conversion claim against Maryland National Bank for its repossession of his automobile. Prior to the repossession, a series of clerical errors by the bank produced erroneous payment delinquency notices which Henderson attempted to correct by telephone calls and by submitting photocopies of can-celled checks. The bank remained adamant and eventually one of its employees, in an angry telephone conversation, demanded that Henderson bring all of his relevant records from his Virginia home to the bank’s Maryland office. When Henderson declined the invitation, the bank repossessed the car without further notice. We concluded that under the circumstances there was a permissible inference that the repossession was undertaken not to obtain payment on behalf of the Bank, but instead was provoked by anger or a desire to punish Henderson for refusing to produce the records.

The inquiry, here, as in Henderson , is whether the Lees presented sufficient circumstantial evidence of malice to allow the jury to consider the tortious interference claim. It is unnecessary to examine any evidence presented by K & K that may have been introduced to negate an inference of actual malice. Henderson, 278 Md. at 520-522 , 366 A.2d at 5-6 . One needs to ask only whether the jury could draw a reasonable and probable inference of malice from the evidence presented by the Lees. Id. at 520 , 366 A.2d at 4-5 .

*187 According to the testimony of Mr. Lee and Ms daughter, Kim, the year preceding the closing of the restaurant involved many instances of difficulty with the Kirbys and K & K. While the Lees’ testimony attempted to characterize these difficulties as harassment by K & K, none of this testimony alone gives rise to a reasonable inference of actual malice. What is determinative, however, is the manner in which the restaurant was closed and the property converted, and the direct impact this had on the Lees, their reputation in the community, and their business relations with Korean individuals and groups. This evidence I view in the context of the history of earlier difficulties, including that pertaining to possible racial or ethnic bias. 4

Robert Kirby, Jr., an adverse witness, testified that sometime after midnight on 7 September 1988, he and his brother, Phillip, arrived with a locksmith to change the exterior locks on the restaurant doors. The locks were changed and a sign put up stating that the restaurant was temporarily closed. He testified that no attempt was made to determine whether there were any activities, gatherings, or reunions planned to take place in the restaurant which would be disrupted by the abrupt closing. He further testified that a letter had been prepared for Mr. Lee which stated that the contract was terminated. The letter offered as a basis for the termination the fact that the Lees had allegedly fired an employee because she was pregnant—an action that K & K claimed violated certain contractual provisions.

Mr. Lee in his testimony described what he had found on his arrival at the restaurant on the morning of 7 September: *188 the locks changed; the letter declaring the contract terminated. He explained he was permitted to enter the restaurant to remove only personal belongings and a few other items. As the majority noted, the Kirbys specifically instructed Mr. Lee that he could not remove any items purchased through the business accounts.

Mr. Lee went on to challenge the legal basis for the closing. He testified that the pregnant employee was not fired but had voluntarily left their employ. This was corroborated by his daughter, Kim, who testified that the employee left because of the employee’s concern about the strenuousness of the work she was required to perform and the impact this may have on her carrying the child to term. The employee’s concerns, Kim testified, were fostered by a previous miscarriage. The Lees also introduced evidence that the closing violated the contract in that K & K did not provide 30 days notice before terminating the Agreement. The contract, which was introduced into evidence, conditioned K & K’s right to terminate the contract, in the event of the Lees’ breach of any terms or conditions, on the giving of 30 days notice.

There was extensive evidence presented by the Lees as to their reputation and standing in the Korean community. Apparently, the Seoul Restaurant had become a meeting place for many Korean organizations, including the Korean Society of Greater Baltimore, the Korean Businessmen’s Association, and the Korean Women’s Organization. When the restaurant closed, many meetings regularly held at the Seoul Restaurant had to be rearranged. There was evidence that the Lees suffered great distress and embarrassment because of this disruption in their business. Additionally, there was testimony that the Lees’ standing among the Korean organizations suffered as well. Mr. Pak, a former president of both the Korean Businessman’s Association and the Korean Society of Greater Baltimore, testified that within the Korean community, Mr. Lee was blamed for the restaurant’s closing because of his alleged firing of the pregnant employee.

*189 K & K, of course, presented evidence that tended to support its theory that it was not required to give advance notice of termination of the contract, and that closing the restaurant in the middle of the night was designed to minimize inconvenience to customers. The jury, however, was not required to believe this testimony and apparently did not. From the evidence presented, the jury could reasonably have concluded that K & K had no legal justification for terminating the contract, and that its motivation was something other than enforcement of a contractual right.

When it found for the Lees on the conversion claim, the jury necessarily found that K & K had no ownership interest in the converted personalty. The majority observes, with regard to the conversion, that “[f]rom K & K’s standpoint the record at best presents a contractual ambiguity with factual issues bearing on the interpretation of the Agreement.” K & K, 316 Md. at 173 , 667 A.2d at 982 [emphasis supplied]. I submit that the record, without its “best” face towards K <& K, shows a conversion brought about by a bad faith construction of the Agreement, motivated by greed, anger, or a desire to punish the Lees. In my view, no reasonable interpretation of the contract exists which could possibly establish K & K’s interest in the personalty in question. Consequently, the evidence showed K & K was fully aware it was taking property to which it had no legal claim. That greed may have been the motivation is obvious. But K & K’s conduct is also consistent with the Lees’ assertion that the sudden seizure and conversion of the property was carried out to maximize injury to the Lees; in essence, to punish them.

I disagree with the majority’s conclusion that “taking all of the inferences which may reasonably be drawn from the evidence most favorable to the Lees, K & K’s “ ‘object was merely to benefit itself.’ ” Id. at 177, 557 A.2d at 985 (quoting Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. at 569, 69 A. at 410). What I have already recounted with regard to the closing of the restaurant, and from *190 which I believe the jury could have drawn an inference of malice, has equal bearing with respect to the conversion. It is undisputed that the relationship between K & K and the Lees was substantially strained for a year prior to the closing of the restaurant in September 1983. The majority recounted some instances of disagreement. K & K, 316 Md. at 145 , 557 A.2d at 969 . From K & K’s perspective the Lees were uncooperative. They did not respond sufficiently to numerous complaints about their food service. They failed to conform their conduct to the Agreement. They failed to prepare group menus, despite K & K’s repeated requests, causing the motel to forego bidding on certain group tours. Kim Lee testified that Mr. Dahlseid, K & K’s on-site manager, complained to them about the restaurant operation that “everything is just being done wrong.” There was also testimony regarding tense and angry moments between Kobert Kirby, Sr., and Mr. Lee as well as between Mr. Dahlseid and Kim Lee. Thus, like this Court’s determination in Henderson, supra, I believe there is sufficient circumstantial evidence from which the jury could infer that the conversion was motivated by anger or a desire to punish.

In sum, the evidence, taken in the light most favorable to the Lees, permits the inference that the steps taken to close the restaurant and to convert the assets were with the intent to maximize injury and embarrassment to the Lees. That inference is enough to support a finding of actual malice and thus improper conduct sufficient to support the tortious interference count.

II.

As to the conversion claim, as I have noted, my only difference with the majority is on the punitive damages issue. I agree that the conversion claim is one involving a tort arising out of contract. I also agree that in such a case, “punitive damages are recoverable only where the *191 plaintiff establishes actual malice.” 5 Id. at 175, 557 A.2d at 983 . For the reasons I have just stated in connection with the tortious interference claim, I believe there was enough circumstantial evidence of actual malice to go to the jury. Therefore, it was appropriate to submit the punitive damages question to the jury.

III.

Because I would affirm the judgment as to both tortious interference and punitive damages for conversion, I must address those contentions of appellants that the majority has not discussed. I shall assume that these contentions were preserved.

A.

1.

With respect to the tortious interference count, K & K raises the affirmative defense of privilege. It argues that liability for interference cannot lie where the alleged interferer is a financially interested party whose motivation stems from protection of that financial interest. K & K primarily relies on United Rental Equipment v. Potts & Callahan, 231 Md. 552, 560 , 191 A.2d 570, 574 (1963), wherein we quoted with approval Restatement of Torts § 773:

One is privileged purposely to cause another not to perform a contract, or enter into or continue a business relation, with a third person by in good faith asserting or threatening to protect properly a legally protected interest of his own which he believes may otherwise be impaired or destroyed by the performance of the contract or transaction.

*192 K & K concludes that “to the extent that K & K or the Kirbys individually interfered with the Lees’ contracts with others by terminating the management agreement, such interference resulted only from the assertion by appellants of ‘ “a legally protected interest of [their] own.” ’ ” Appellants’ Brief p. 27 (quoting United, supra, bracketed portion inserted by Appellants).

Had K & K’s conduct gone no further than termination of the contract, I might be persuaded that the resultant interference was privileged. The argument, however, neglects to consider that conduct which went beyond breach of the contract. The right to interfere accorded by the privilege doctrine simply cannot be construed as encompassing, in this instance, the wrongful conversion of the Lees’ property and the other evidence of improper conduct. If privilege existed at all, it did so only to the extent of the termination of the contract. Accordingly, I would hold that the trial court did not err in refusing to instruct the jury on privilege, nor did it err in denying K & K’s motion for judgment on the basis of privilege.

2.

Then Lees successfully asserted a tortious interference claim against the individual Kirbys as well as against K & K. I turn now to that claim. The interference claim against the Kirbys and the one against K & K are virtually identical. As with the argument on behalf of K & K, the Kirbys characterize the act of interference as a single wrong—the act of closing the restaurant without notice. Once again, this ignores the fact that the Lees’ claim also álleged that the Kirbys interfered by converting the Lees’ property. 6

The Kirbys were not, of course, parties to the contract between K & K and the Lees. Thus, they cannot successfully raise the argument that a party to a contract cannot *193 be sued for tortious interference arising from a breach of that contract. Their exposure to the tortious interference claim, if any, derives from wrongful acts independent of any breach of contract—chiefly, the conversion of the Lees’ chattels and the lockout, considered in the context of the general relationship between the parties. I dealt with this theory in the claim against K & K and the same reasoning applies. I will, however, touch briefly upon the Kirbys’ challenge to the permissibility of piercing the corporate veil to hold them individually liable.

In essence the argument is that there was no evidence that the Kirbys did other than terminate the corporation’s contract with the Lees, and, therefore, the inquiry is limited to whether the corporate veil could be pierced on the basis of this termination—an inquiry the Kirbys answer in the negative. As with their other arguments, this one is dependent on the incorrect assumption that the interference claim was predicated solely on the termination of the contract. Indeed, the Kirbys go so far as to concede that they “do not quarrel with the proposition that corporate officers may be personally liable for tortious conduct they commit separate and apart from acting as the corporation’s agents in terminating the contract.” [Appellants’ Reply Brief, p. 23, emphasis in original.] Their concession is correct. This Court has indicated that individual tort liability may attach where a corporate officer’s actions involve separate tortious conduct. Bart Arconti & Sons v. Ames-Ennis, 275 Md. 295, 312, 340 A.2d 225, 235 (1975). Here, of course, there was a separate tortious act—the conversion of the Lees’ property. As I have explained this was independent of the termination of the contract. Consequently, I think the concession makes evident there is no real corporate veil question at issue. Once it is understood that the proper focus is on the conversion as the wrongful conduct in question, the argument becomes irrelevant.

The Kirbys do, however, raise a final challenge to the interference claim that was not raised by K & K and is not dependent on the termination of contract theory. The Kir *194 bys assert that even if their conduct is found to be tortious, there is insufficient evidence of actual malice to support the verdict against them.

The response lies in what I have already said on this topic. The same evidence that supports the award of punitive damages under the conversion count supplies sufficient evidence of malice to carry to the jury the tortious interference count against the Kirbys. It was they who directed and carried out the conversion. There was sufficient circumstantial evidence from which malice could be inferred, therefore, to allow the jury to consider the interference with business claim against the Kirbys.

B.

K & K also asserts error with regard to the sum of certain compensatory damage awards, charging the trial court with error in allowing multiple damage awards to be made based on the same acts and injuries. 7 K & K first raised the double recovery challenge in a Rule 2-523 motion for new trial. In reviewing a denial of motion for new trial, abuse of discretion is the appropriate standard. Miller Building Supply v. Rosen, 305 Md. 341, 355 , 503 A.2d 1344, 1351 (1986).

I agree with K & K that “ ‘the law does not permit a double satisfaction for a single injury.’ ” Montgomery Ward & Co. v. Cliser, 267 Md. 406, 425 , 298 A.2d 16 , 26 (1972) (quoting 25 C.J.S. Damages § 3). I also agree that the jury instructions on the measure of damages as to each cause of action were not exemplars of clarity and precision. The instructions, as given, were susceptible to an interpretation which could have produced duplicating awards. The jury could have awarded consequential damages for lost *195 profits on either the breach of contract or interference with economic relations claims or both, but apparently it did not.

The jury awarded $98,000 as compensatory damages for breach of contract This figure is nearly identical to expert trial testimony which fixed lost profits at $92,340. On the conversion claim the jury awarded compensatory damages of $14,400. At trial it was submitted that the actual cost of the converted property was $24,640. It is asserted that the compensatory award reflects actual cost less depreciation. I observe that the amount of the award is considerably less than the total cost of the property as claimed by the Lees and may very possibly take into account the property’s depreciation. In looking at each of these awards, it appears that the jury responded directly to the specific monetary figures given in evidence as to the corresponding claims. On the other hand, the Lees introduced no evidence which attached a specific monetary figure to the interference claim. The compensatory awards for interference with economic relations were round figures of $100,000 for Chul Woo Lee and $100,000 for his wife, So Jae. Given these outcomes, I believe it is more than likely that the jury properly understood its task and refused the invitation to overlap damages.

As recounted earlier, the Lees presented extensive evidence concerning the severity of their emotional, mental, and reputational injuries. Of course, none of these injuries is compensable in suit for breach of contract. They are, however, compensable injuries on a cause of action in tort. The $200,000 in compensatory damages awarded in total to the Lees on the interference claim seems to bear little relation to the $98,000 awarded for breach of contract. Rather, the nature of the number suggests it is the jury’s assessment of the compensation due the Lees for those injuries (mental, emotional, and reputational) which were not directly or readily quantifiable. Undoubtedly, when the jury awarded the $100,000 each to the Lees it was well aware that it had, in a preceding question on the verdict sheet, already compensated the Lees for all projected lost *196 profits in the amount of $93,000. I think it unlikely, then, that the jury took a second account of this financial injury in calculating the compensatory damages for interference. Certainly, the possibility of such an overlap is not so great that I could say the trial court abused its discretion in refusing to grant the motion for new trial.

Moreover, I take note of the fact that K & K could have dealt with this potential problem by requesting specific jury instructions delineating the compensable injuries on each cause of action, so that there would have been little or no likelihood of overlapping awards. K & K simply did not request instructions of this sort. As to the breach of contract instruction, K & K objected only to the court’s failure to instruct the jury on its theory that compensatory damages should be limited to those incurred within 30 days of the breach. As to the instruction on interference with economic relations, there was no defense objection to the content of the measurement of damage portion of the instruction.

In reviewing a motion for a new trial, this Court has previously considered a defendant’s failure to request a protective jury instruction on an issue subsequently raised in a new trial motion as weighing in favor of finding no abuse of discretion in the trial court’s denial of that motion. Brinand v. Denzik, 226 Md. 287, 292-293 , 173 A.2d 203, 206 (1960). Thus, K & K’s failure to request jury instructions, which could have substantially reduced or eliminated the potential for a double recovery, undergirds my view that there was no abuse of discretion in denying the motion for new trial.

IY.

For the reasons I have stated, I would affirm the judgment of the trial court.

COLE, J., has authorized me to state that he concurs with the views expressed herein.

. Quoted in K & K, 316 Md. at 159 n. 7, 557 A.2d at 975 n. 7.

. The "malice” element is the third element listed in Natural Design, Inc. v. Rouse Co., 302 Md. 47, 69 , 485 A.2d 663, 674 (1984), which requires that the act be “done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice)____”

. For a comprehensive treatment of the various aspects of malice in the context of tortious interference with economic relations, see Natural Design, Inc. v. Rouse Co., 302 Md. 47, 71-72 , 485 A.2d 663, 675 (1984).

. The majority is skeptical about the claim of racial or ethnic bias, the only direct evidence of which has to do with an occasion upon which the motel manager, Mr. Dahlseid, told a group of Koreans not to sit in the motel lobby. K & K, 316 Md. at 170 , 557 A.2d at 981 . It rejects this evidence because of the general tenor of the relationship between K & K and the Lees. Racial and ethnic prejudice, however, is often concealed nowadays and for that reason can manifest itself at times and in ways that may appear on the surface as surprising. I would leave to the jury the question of whether this was a factor in K & K's conduct.

. The wisdom of this rule has been questioned. See, e.g., Miller Building Supply v. Rosen, 61 Md.App. 187, 201 , 485 A.2d 1023, 1030 (1985) (Adkins, J., concurring). It is, nevertheless, firmly established. See, e.g., Miller Building Supply v. Rosen, 305 Md. 341 , 503 A.2d 1344 (1985). The rule is not questioned in this case.

. While the Lees originally brought claims against both K & K and the Kirbys for conversion, the conversion claim against the Kirbys was dropped during trial.

. The potential for overlap exists only in the compensatory awards for breach of contract and interference with economic relations. K & K’s arguments concern only this possibility. Quite clearly there was no overlapping of punitive damages. No more than one punitive damage award was assessed against each defendant.