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MEMORANDUM
To: Busy Partner
From: John Lucas Peterson
Date: January 2017
Re: Roberts v. Fischer
ISSUES
1. Under Texas law, is there a contract subject to interference, as required for tortious
interference with an existing contract, when all elements of an enforceable contracts are present,
but contracting party was sixteen at the time the written contract was signed?
2. Under the same law, does a third party “willfully and intentionally” commit acts that
interfered with a party’s contract when the third party did not originally know that the contract
was in effect, but after he learned of its existence continued to attempt to persuade the obligor to
back out of the agreement by stating he could immediately perform the contract, and offered
substantially better terms if obligor chose to back out of his contract and sign with him?
BRIEF ANSWERS
1. Yes. When a party to a contract is a minor but the contract is otherwise valid in all other
respects, that contract is voidable at the minor’s option. The contract is still enforceable against
the other party by the minor, thus, is subject to a third party’s interference, making a third party
liable for interfering.
2. Probably yes. For a court to find a “willful and intentional” interference with a contract,
the claimant must prove that defendant “knowingly induced” an obligor to breach his obligations
to the plaintiff. In this case, the third party made continuous efforts to persuade the obligor to
breach his agreement after learning it was in place; and made additional efforts to induce the
obligor to breach by knowingly offering a substantially lower price and term.

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FACTS
On June 15, 2016, about three months before he turned sixteen, Blake Roberts
(“Roberts”), a budding bluegrass musician, signed an agreement with Mike Winters (“Winters”),
and his music label, Winters Productions (“WP”), in Austin, Texas. Winters, as CEO of WP,
signed the contract on WP’s behalf. The contract was written, signed, and provided that Roberts
would be the only bluegrass artist under the WP label, and that he would receive 30% of all
music and concert sales. The contract was for a two-year term, required Roberts be ready to
record eight songs by August 1, 2016, and to go on tour with the label beginning in March 2017.
Prior to the signing, Winters told Roberts the only reasons WP could terminate the contract were
if Roberts either missed the recording deadline or five tour dates in a row.
In late June or early July of 2016, Adam Fischer (“Fischer”), an experienced bluegrass
artist, reached out to Winters. Fischer and Winters were former business associates, and Winters
invited Fischer to his home in Austin for a July 4th party. At the party, Fischer proposed to
Winters that WP sign Fischer as a bluegrass artist. Winters told Fischer that, while if he had
known Fischer was available before signing Roberts he would have signed Fischer, he had just
signed a contract with Roberts. An hour later, thinking about what Winters had told him, Fischer
asked Winters if there was any way WP could get out of the contract with Roberts. Winters then
told Fischer that Roberts had not yet written the songs for recording as he was required per their
contract. Fischer then told Winters that, unlike Roberts, his songs were ready now and he could
beat the deadline, and asked Winters what the terms of his contract with Roberts were. After
Winters told him, Fischer said, “Man, I will do 25% and a one-year term. Think about it—let’s
split a way bigger money pie. And you know that taking me on will make the label way more
money than some unknown street musician.”

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On July 21, 2016, Winters informed Roberts that WP had decided on another artist, but
promised to find him some other shows to play. Winters followed through with his promise; a
few months later at one of the shows a manager told Roberts he had heard Fischer backstage at
another show bragging that he had taken the contract of “some dude named Roberts.” Roberts
would like to know if he has a case against Fischer for tortious interference with a contract.
DISCUSSION
Roberts has a solid case against Fischer for tortious interference with a contract because
his contract with Winters was subject to interference even though it was voidable, and Fischer
knowingly induced Winters to breach the contract with Roberts. Under Texas law, the party
alleging tortious interference with an existing contract must prove four elements to sustain its
claim: (1) that a contract subject to interference exists, (2) that the alleged act of interference was
“willful and intentional;” (3) that the willful and intentional act proximately caused damage; and
(4) that actual damage or loss occurred. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex.
2002). However, even if a plaintiff establishes these elements, a defendant can disprove the
claim by establishing the affirmative defense of justification or privilege. Id. This discussion will
not address the defense of justification or privilege; it will analyze only the first two elements of
the claim. Additionally, contracts that are illegal or unenforceable on grounds of public policy
cannot form the basis for a claim of tortious interference with a contract. Juliette Fowler Homes,
Inc. v. Welch Assocs, Inc., 793 S.W.2d 660, 664 (Tex. 1990). Roberts’ contract with Winters was
not illegal or against public policy, therefore these instances are irrelevant. “Binding and
enforceable contracts are formed when an offer is made and accepted, when there is a meeting of
the minds,” and the terms are definite and specific enough to define the parties' obligations.” Tex.
Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 589 (Tex. App.—

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Austin 2007, pet. denied). It is undisputed that the contract between Roberts and Winters
contained an offer, acceptance, meeting of the minds, consideration, and that it was definite and
specific as to all material and essential terms. In the present case, the contract between Roberts
and Winters was subject to interference because it was voidable, and it is likely that Fischer’s
constant, persistent persuasion of Winters to breach the contract for his own benefit will satisfy
the “intentional and willful” element. Thus, Roberts will most likely have a good claim against
Fischer for tortious interference with an existing contract.
I. THE CONTRACT WAS SUBJECT TO INTERFERENCE
The contract between Roberts and Winters is subject to tortious interference because
Roberts was a minor when he signed it, making the agreement a voidable, not void, contract. The
cause of action for tortious interference with a contract is qualified with the initial requirement
that the contract be “subject to interference.” Juliette, 793 S.W.2d at 664. To be subject to
interference, the contract must be valid; however, an unenforceable contract may be the basis for
the claim as long as the contract is not void. Id. “Mere unenforceability of a contract is not a
defense to an action for tortious interference with its performance.” Id. In other words, unless the
contract is illegal or contradicts public policy, unenforceability cannot be raised as a defense.
Exxon Corp. v. Allsup, 808 S.W.2d 648, 654–55 (Tex. App. Corpus Christi 1991, writ denied).
As the Austin Court of Appeals explained, the concern in these claims is not whether the contract
is enforceable or not, but rather whether the agreement allegedly violated is a contract at all. S &
A Marinas, Inc. v. Leonard Marine Corp., 875 S.W.2d 766, 768 n.3 (Tex. App.—Austin 1994,
writ denied). In other words, while a contracting party may, in some cases, avoid liability for
breaching a voidable contract (e.g., because of mistake, uncertainty of terms, unconscionability,
a party’s legal incapacity to contract, etc.), a third party cannot avoid liability for interfering with

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the performance of a voidable contract for the same reasons the contracting party can. Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989).
Regarding minors in contracting; “while the contract of a minor is not void, it is voidable
at the election of the minor.” Dairyland County Mut. Ins. Co. of Texas v. Roman, 498 S.W.2d
154, 158 (Tex. 1973). Under the Texas Family Code, a “minor” is a person under eighteen years
of age who has not been married or had their minority disabilities removed. Tex. Fam. Code
Ann. § 101.003(a) (West 2015).
Accordingly, Texas courts have found contracts to be subject to interference when
evidence showed defendants reasonably should have been aware of the contract and where
contracts were valid, and when terminable at-will or terminable on notice employment contracts
were interfered with. See Juliette, 793 S.W.2d at 666; Sterner, 767 S.W.2d 686. Terminable at-
will and terminable on notice contracts are voidable contracts. See Juliette at 667; Sterner at 689.
For example, in Sterner, where the terminable at-will contract in dispute was determined to be
subject to interference; the court held that just because the employer had the right to terminate
his at-will employee at any time, a third party had no right to interfere with the contract until it
was terminated, i.e., voided, by the employer. 767 S.W.2d at 689.
Unsurprisingly, contracts which are not subject to claims of tortious interference are
those that are void, illegal or against public policy; or in rare cases, when a claimant is unable to
identify a specific contract that was interfered with. See Tex. Disposal, 219 S.W.3d at 589-90; M-
I LLC v. Stelly, 733 F. Supp. 2d 759, 774–75 (S.D. Tex. 2010). For example, a claim was
dismissed when claimant simply stated that it “had valid contracts with certain customers,” so
there was no individual contract the court could examine to determine if interference had
occurred. M-I LLC, 733 F. Supp.2d at 774-75. Similarly, in Texas Disposal, the contract was not

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subject to interference when it was not in writing and it was not shown that the parties intended
to be bound. 219 S.W.3d at 589-90.
In the present case, a Texas court will find Roberts’ contract was voidable, not void, and
thus be subject to a claim for interference. Just as in Dairyland, where the Texas Supreme Court
ruled that contracts of minors are voidable at the option of the minor, Roberts was sixteen at the
time the contract was signed and when it was breached; conclusively making it voidable. See 498
S.W.2d at 158. Because of his minority, Roberts had the power to negate the contract, not
Winters. See Juliette, 793 S.W.2d at 666. In sharp contrast to both M-I LLC and Texas Disposal,
the agreement between Roberts and Winters was written and definite, valid in all respects, and it
would not be difficult for Roberts to identify the specific contract. 219 S.W.3d at 589-90; 733 F.
Supp. at 774-75. Therefore, the contract between Winters, WP, and Roberts was voidable, and
hence subject to tortious interference.
II. FISCHER LIKELY WILLFULLY AND INTENTIONALLY INTERFERED
Fischer willfully and intentionally interfered with Roberts’ contract because he
knowingly induced Winters to breach the contract. The second element involving “willful and
intentional” acts requires more than willing participation with a breaching party; a tortious
interferer must engage in some act of “knowing inducement” by intentionally persuading or
causing the obligor to breach the contract. Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927
(Tex. 1993). Ordinarily, inducing a contract obligor to do what it has the right to do is not
sufficient for actionable interference. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430
(Tex. 1997). If a party is a “mere willing participant” in an act that causes some harm to the
plaintiff, it does not show “knowing inducement,” or any other intentional interference with the
contract. Browning-Ferris, 865 S.W.2d at 927. To be liable, one must take an active part in

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persuading the obligor to breach their obligations. John Paul Mitchell Sys. v. Randalls Food
Mkts, Inc., 17 S.W.3d 721, 730 (Tex. App.—Austin 2000, pet. denied). There must be some act
interfering with a contract or act persuading a party to a contract to breach; for example, offering
better terms or other incentives. Dunn v. Calahan, No. 03-05-00426-CV, 2008 WL 5264886, at
*3 (Tex. App.—Austin Dec. 17, 2008, pet. denied) (mem. op). To be liable for this claim, a
defendant does not require “intent to injure, only that the actor desires to cause the consequences
of his act, or that he believes that the consequences are substantially certain to result from it.”
Sw. Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992).
As a result, interference with a contract is willful and intentional when a party knows or
should reasonably know a contract exists and nevertheless attempts to persuade a contracting
party to breach their contract. See SJW Prop. Commerce, Inc. v. Sw. Pinnacle Props., Inc., 328
S.W.3d 121, 152-53 (Tex. App.—Corpus Christi 2010, pet. denied), abrogated on other grounds
by Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143 (Tex. 2015) (holding statutory cap on
exemplary damages is not waived if not pleaded as affirmative defense or avoidance); Amigo
Broad., LP v. Spanish Broad. Sys., Inc., 521 F.3d 472, 479 (5th Cir. 2008). For example, willful
and intentional interference was found when a commercial real estate broker, claiming to the
plaintiff that he was acting on his behalf, procured a contract to land that was an essential piece
of the bigger land package plaintiff planned on selling in a large real estate transaction,
prohibiting plaintiff from making that sale. SJW, 328 S.W.3d at 152-53. Testimony from the
landowner that contracted with the broker was taken by the court to show that his intention was
to tie up plaintiff’s efforts to obtain rights to sell all the contiguous parcels of land so they could
make the sale themselves. Id. In another instance, conduct was “willful and intentional,” and
evidence supported a finding that defendants’ acts were an “attempt to lure” employees from

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their employer when defendants received plaintiff’s letter asking them to cease negotiations of
employment with their employees, but nevertheless, after learning of employees’ salary and
benefits as employees of the plaintiff, the defendant offered them contracts with “significantly
more attractive” terms. Amigo, 521 F.3d at 492-93.
By contrast, there is no “willful and intentional” interference when there is no attempt to
persuade the contracting party to breach their contract or when someone merely enters a contract
with a party while that party has conflicting contractual obligations. See John Paul Mitchell, 17
S.W.3d at 731; Dunn v. Calahan, 2008 WL 5264886, at *3. For example, the Austin Court of
Appeals determined that the defendant did not have an intent to interfere with the contract when
they were “merely participating” in the breach. John Paul, 17 S.W.3d at 731. The court
determined there was no “knowing inducement,” even though defendant bought products it knew
were authorized to be sold only through a closed distribution scheme the court held that having
knowledge that someone in the distribution scheme had breached its obligation to the
manufacturer alone was not enough to establish tortious interference. Id. at 730-31. Likewise, in
Dunn, no “willful and intentional” interference was found when the defendant did not do or say
anything with the purpose of causing a contract to be terminated, even though it was eventually
terminated, because after she was called for an employment reference, the defendant merely
answered questions and informed the caller of a published article concerning the plaintiff. Dunn,
2008 WL 5264886 at *3-4.
In the present case, Fischer probably committed tortious interference because after he
asked Winters about the terms of his contract with Roberts, Fischer continuously made efforts to
persuade Winters to back out of the contract; at one point offering to accept less compensation
than Roberts was set to receive if Winters agreed. Unlike the “mere participant” in John Paul,

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Fischer actively induced Winters to breach his contract when he said he could finish recording
his songs much faster than Roberts could, and would make more money for the label than
Roberts would. See 17 S.W.3d at 731. Nearly identical to Amigo, only after learning of the terms
of Winter’s agreement with Roberts did Fischer make his “significantly more lucrative” offer to
sign with Winters for a 5% less share of the profits and for half of the term. See 521 F.3d at 492.
Fischer knew about the contract, and its specifics; his offer to Winters to take lower than the
standard profit share and half of the term is a clear, knowing effort to induce Winters to breach
his contract with Roberts. All of Fischer’s proposals regarding his offer to contract with Winters
were made after he was aware of what Roberts was set to earn with the terms of his contract – a
clear attempt to knowingly persuade Winters to breach his contract with Roberts. In particular,
his statement to Winters that he could beat the studio deadline was made only after he learned
Roberts had not yet done so, and called Roberts a “unknown street musician.”
Unlike the statements in Dunn that were not intended to cause a breach of contract,
Fischer was not asked his obviously biased opinion, calling Roberts an “unknown street
musician” being just one of his repeated attempts to make himself seem like a much more
attractive business option to Winters. See Dunn, 2008 WL 5264886 at *3-4. It is plainly obvious
that Fischer knowingly induced Winters to breach his contract with Winters with the purpose of
obtaining a contract with WP for himself. Just as the testimony in SJW, Fischer’s bragging about
taking the contract from Roberts shows his intentions to induce Winters to breach the agreement.
See 328 S.W.3d at 152-53.. Fischer induced Winters to breach his contract with Winters with the
purpose of obtaining a contract with WP for himself. Thus, Fischer willfully and intentionally
interfered with Roberts’ contract.
CONCLUSION

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In all likelihood, Roberts will succeed in an action for tortious interference with a contract
against Fischer because Fischer knowingly induced Winters to break off his agreement with
Roberts. Even though Roberts’ contract with Winters was voidable, it was no less subject to
Fischer’s interference than an enforceable agreement. Fischer willfully and intentionally caused
the breach; his efforts to persuade Winters to back out of the contract was knowing inducement,
satisfying the second element of the claim. The other two elements of this cause of action being
assumed for the purposes of this memorandum, Roberts will very likely prevail should he file this
cause of action.