[ 23] We recently outlined the elements for a claim for tortious interference with a business relationship in Trade ‘N Post v. World Duty Free Americas, 2001 ND 116, 36, 628 N.W.2d 707 as: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.
*463 [ 25] Here, the trial court decided Bertsch presented no evidence he was damaged by Duemeland's alleged interference. The court said “Nelson testified that nothing [Duemeland] did had any impact on Hollywood Entertainment Corporation's decision not to contract with [Bertsch]. All the evidence shows that the Christopher Building site did not pass Hollywood Entertainment Corporation's supply and demand criteria and that Hollywood Entertainment Corporation never performed a site pack analysis on the Christopher Building site.”
[ 27] Although Hollywood Entertainment did not enter a final lease agreement with Bertsch, Nelson testified in his deposition a lease arrangement was not consummated because the Christopher Building did not pass Hollywood Entertainment's supply and demand criteria and therefore Hollywood Entertainment never conducted a site pack review. Bertsch did not present any evidence, by affidavit or otherwise, from any other representative of Hollywood Entertainment to refute Nelson's testimony the Christopher Building failed Hollywood Entertainment's supply and demand criteria. Bertsch was required to establish the existence of a factual dispute regarding whether he would have obtained an economic benefit in the absence of Duemeland's actions. See
Schneider, 1999 ND 235, 26, 603 N.W.2d 869. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial. Black, 1999 ND 236, 23, 603 N.W.2d 182. Bertsch failed to present evidence to establish the existence of a factual dispute about whether Duemeland's conduct caused Bertsch actual damage, and we conclude summary judgment was appropriate on this claim.
[ 28] Bertsch argues the trial court erred in granting summary judgment on his claim for misappropriation of trade secrets. In granting summary judgment on this claim, the trial court decided Bertsch made no showing Duemeland requested, and another person gave him, Bertsch's trade secrets.
[ 29] Chapter 47-25.1, N.D.C.C., outlines the statutory requirements for a claim for misappropriation of trade secrets. Under N.D.C.C. § 47-25.1-03, a complainant is entitled to recover damages for misappropriation of a trade secret. Section 47-25.1-01(4), N.D.C.C., defines a “trade secret” as
information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Section 47-25.1-01(2), N.D.C.C., defines “misappropriation” as
a. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret*464 was acquired by improper means; or
b. Disclosure or use of a trade secret of another without express or implied consent by a person who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that the person's knowledge of the trade secret was:
(a) Derived from or through a person who had utilized improper means to acquire it;
(b) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(3) Before a material change of the person's position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
Section 47-25.1-01(1), N.D.C.C., defines “improper means” to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.”
5[ 30] Bertsch argues the pricing information in the “letter of intent” that Nelson transmitted to Duemeland is a “trade secret” and Duemeland's actions constituted a “misappropriation” of that information as defined in N.D.C.C. § 47-25.1-01. Bertsch argues Duemeland requested the release of confidential information regarding Bertsch's pricing strategy with Hollywood Entertainment, and Bertsch argues there are disputed issues of fact about whether Duemeland's actions constituted the inducement of a breach of duty to maintain secrecy under the definition of “misappropriation” in N.D.C.C. § 47-25.1-01(2). Bertsch argues a jury could reasonably conclude, in the entire context of this case, Duemeland received the information through improper means, because
“from the start [Duemeland] made false and disparaging comments regarding Bertsch's abilities as a developer and his ability to close this transaction. At the same time [Duemeland] offered himself as a substitute source for a potential location and potential investors for the location of a Hollywood Video store. Against this background, a jury could reasonably infer that Duemeland has insinuated himself into the transaction between Bertsch and Hollywood Video to a sufficient extent that his exposure to confidential information as between Bertsch and Hollywood Video would be a foregone conclusion.”
[ 31] According to Nelson, he sent Duemeland the letter of intent so Duemeland would know Hollywood Entertainment's requirements for a site for a Hollywood Video store. According to Duemeland, he asked Nelson for “a copy of [the] requirements and implied standard copy of the lease.” Bertsch presented no evidence that Duemeland requested the letter of intent that Hollywood Entertainment provided to Bertsch. Duemeland received a copy of the letter of intent because Nelson sent Duemeland that document rather than a copy of Hollywood Entertainment's form for a letter of intent. We conclude the circumstances of Duemeland's receipt of the letter of intent from Nelson do not raise a factual dispute about whether Duemeland acquired the letter of intent by improper means under N.D.C.C. § 47-25.1-01(2)(a). Moreover, *465 Bertsch presented no evidence to raise a factual dispute that Duemeland “disclose[d] or use[d]” the trade secret as required for a misappropriation under N.D.C.C. § 47-25.1-01(2)(b). Bertsch failed to establish the existence of a factual dispute on an essential element of his misappropriation claim. See
Black, 1999 ND 236, 23, 603 N.W.2d 182. We therefore conclude the trial court did not err in granting summary judgment on Bertsch's misappropriation claim.