Affirmed in part, Reversed and Remanded in Part, =
and=20
Memorandum Opinion filed July 1, 2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00657-CV
____________
JON RICHARD=20
O=3DKANE, =
Appellant
V.
JEFF=20
COLEMAN, INDIVIDUALLY, AND ENTERPRISE RENT-A-CAR COMPANY OF TEXAS, =
INC.,=20
Appellees
On Appeal from the =
10th District Court
Galveston County, =
Texas
Trial Court Cause =
No. 05-CV-1113
M E M O R=20
A N D U M O P I N I O N
In this=20
case arising from sequential leases of the same commercial =
premises, the=20
initial lessee, appellant Jon Richard O=3DKane=20
appeals from a take-nothing summary judgment in favor of the =
subsequent=20
lessees, appellees Jeff Coleman, individually, and Enterprise =
Rent‑A‑Car=20
Company of Texas, Inc. We affirm the judgment in favor of =
appellees=20
on all claims except O=3DKane=3Ds claim=20
under the Texas Theft Liability Act. We sever that claim =
from the=20
remaining claims, reverse the summary judgment in favor of =
appellees on=20
O=3DKane=3Ds Theft=20
Liability Act claim, and remand to the trial court.
I. =20
Factual and Procedural Background
In July=20
2003, O=3DKane=20
personally signed a two-year lease for commercial property in =
Galveston,=20
with the term to begin August 1, 2003. Unless the landlord =
agreed=20
otherwise in writing, use of the premises was limited to =
Aautomobile=20
sales and related services to automobiles.@ The=20
lease also required O=3DKane to=20
Acomply=20
with all applicable laws or requirements of any governmental=20
entity@ =
and=20
prohibited O=3DKane from=20
allowing the premises Ato remain=20
vacant for a period of thirty (30) days without =
Landlord=3Ds prior=20
written consent except in cases necessitated by repair, =
maintenance or=20
alteration.@ =20
Finally, the lease could not be Amodified=20
or amended in any manner whatsoever@ =
except on=20
O=3DKane=3Ds and the=20
landlord=3Ds written=20
agreement.
O=3DKane,=20
however, was a convicted felon, and had not held a =
dealer=3Ds license=20
from the Texas Department of Transportation (ATexDOT@) to sell=20
new or used cars after his license expired. Instead, to sell =
cars,=20
he needed to be employed by a dealership with the proper license; =
and, in=20
late 2001, he had associated himself with Pamela Nicar, who =
subsequently=20
obtained an independent motor vehicle dealer=3Ds=20
license. The license, which expired on July 31, 2004, =
entitled=20
Nicar, under the name ADiscount=20
Wholesalers,@ =
to sell=20
cars at a specific location in Kemah, Texas.
O=3DKane=20
understood the Galveston lease required him to comply with all =
applicable=20
laws, including TexDOT regulations. Motor vehicle =
dealer=3Ds licenses=20
are specific to a geographic location, and Nicar=3Ds license=20
permitted her to sell new or used cars only at the specified Kemah =
location. =20
Nicar did not apply for a dealer=3Ds license=20
specific to the Galveston premises until August 19, 2003, again =
under the=20
ADiscount=20
Wholesalers@ =
name. TexDOT denied Discount Wholesalers=3D =
application in September 2003.
Shortly=20
after O=3DKane took=20
possession of the premises, the City of Galveston notified him =
that a=20
local ordinance placed a moratorium on his having a car dealership =
on the=20
property. The landlord sought an exception to the =
moratorium, but=20
the city denied the request. The city staff members =
recommending the=20
denial did Anot=20
anticipate the continuation of auto sales facilities as a =
permitted land=20
use within [the zone].@ =20
Discount Wholesalers, however, had begun selling cars from the =
premises in=20
July 2003 and continued to do so until September 20 or 25, 2003, =
during=20
which time it sold approximately one-hundred-fifty =
cars.
According=20
to O=3DKane, a=20
TexDOT Enforcement Division attorney instructed the Galveston =
County Tax=20
Office not to accept any car titles Discount Wholesalers presented =
for=20
registration. Without the registration, customers could not =
obtain=20
proper title or license plates. They soon complained to the=20
authorities, and the Galveston County Auto Crimes Task Force (the=20
ATask=20
Force@) began an=20
investigation. After discovering O=3DKane and=20
other Discount Wholesalers employees were counterfeiting temporary =
red‑tag=20
license plates to mollify angry customers, the Task Force sought =
an arrest=20
warrant for O=3DKane and=20
Nicar on felony forgery charges.
In=20
mid-November 2003, O=3DKane and=20
Nicar fled to Mexico, where O=3DKane=20
stayed until September 1, 2004. A Task Force sergeant =
observed that,=20
as of October 21, 2003, A[t]here=20
were no vehicles . . . for sale located on the premise[s]. =
The=20
business was empty except for desks, computers, and filing=20
cabinets.@
On January=20
23, 2004, Coleman and Enterprise Rent-A-Car signed a lease for the =
premises. The lease provided in part:
Landlord represents =
and=20
warrants to Tenant that all of the following are true as of the =
Lease Date=20
and shall be true as of the Commencement Date:
(a) Landlord is the =
free=20
owner of the Premises and has full right and lawful authority to =
execute=20
this Lease and perform the obligations of Landlord herein =
contained=20
without the consent or joinder of any other party . . . =
.
In July=20
2005, O=3DKane sued=20
the landlord alleging he Aentered=20
[O=3DKane=3Ds]=20
dealership, and removed thousands of dollars in value of =
[O=3DKane=3Ds]=20
personal property, and thereby stole [O=3DKane=3Ds]=20
Property.@ =20
O=3DKane=20
claimed the landlord Akept in=20
excess of $40,000 worth of his property locked inside his=20
dealership,@ =
and=20
Ain or=20
about JanuaryBFebruary=20
2004@ =
the=20
landlord Aassisted=20
in the burglary of [O=3DKane=3Ds]=20
business establishment in conjunction with Pamela Nicar, by =
permitting=20
this person to pay a locksmith to make a key to the facility, =
enter, and=20
remove property . . . .@
In August=20
2005, O=3DKane sued=20
Coleman and Enterprise Rent-A-Car. In his first amended =
petition, he=20
alleged civil conspiracy, aiding and abetting tortious =
interference with=20
existing and future business relations and contracts, negligence, =
gross=20
negligence, theft based on the illegal removal of O=3DKane=3Ds personal=20
property from inside O=3DKane=3Ds locked=20
business establishment, unlawful enrichment, unfair competition, =
trespass=20
to real property, intrusion on seclusion, conversion, deliberate =
failure=20
to act, and intentional infliction of emotional stress. He =
also=20
stated he was pleading under the doctrine of res ipsa =
loquitor.=20
In essence, O=3DKane=3Ds theories=20
were (1) appellees Coleman and Enterprise Rent-A-Car had =
interfered with=20
his business relationships by virtue of leasing the premises and=20
conducting business there and (2) while O=3DKane was=20
in Mexico, appellees had stolen the remainder of O=3DKane=3Ds personal=20
property not previously taken by Nicar and the=20
landlord.
On=20
February 17, 2006, appellees moved for summary judgment on each of =
O=3DKane=3Ds=20
claims. Appellees set the motion for submission on May 2,=20
2006. On April 26, 2006, O=3DKane filed=20
his response to the motion; objections to, and a motion to strike, =
appellees=3Ds summary=20
judgment proof; a second amended petition; and a AMotion For=20
The Court To Hold A Status Conference Hearing And Set A Docket =
Control=20
Order And Outline The Discovery Timetable.@ =20
Nothing in the record indicates O=3DKane=20
sought or received leave to file his second amended petition or =
his=20
response and summary judgment proof.
The same=20
day, O=3DKane filed=20
a motion for continuance, stating that he did Anot=20
currently retain the Evidence [sic] to prove his case,@ =
and=20
seeking an additional ninety days to conduct discovery. In =
his=20
motion and affidavit in support, O=3DKane=20
represented that, during the second burglary, appellees stole the =
records=20
he needed to prove his case and failed to produce this evidence in =
discovery. In addition to claiming that appellees stole =
these=20
documents, O=3DKane=20
claimed appellees stole property Ain excess=20
of $12,000 in value.@
On May 10,=20
2006, the district court entered written orders denying =
O=3DKane=3Ds (1)=20
objections to, and motion to strike, appellees=3D =
summary=20
judgment evidence, and (2) motion for continuance to conduct =
additional=20
discovery. The same day, the court also granted=20
appellees=3D =
motion=20
for summary judgment. O=3DKane then=20
moved for a new trial. Appellees responded and moved to =
strike=20
O=3DKane=3Ds second=20
amended petition. The district court denied O=3DKane=3Ds motion=20
for new trial on August 16, 2006, and O=3DKane=20
appealed.
Analysis=20
of the Issues
Although=20
O=3DKane=20
raises eight issues on appeal, they essentially reduce to the =
following=20
four: (1) whether the trial court erroneously granted =
summary=20
judgment with prejudice on all his claims when, after appellees =
filed=20
their motion for summary judgment, O=3DKane filed=20
an amended petition adding claims (issue one); (2) whether the =
trial court=20
abused its discretion when it denied his first motion for =
continuance=20
(issue two); (3) whether the trial court abused its discretion in=20
overruling his objections to appellees=3D =
summary=20
judgment proof (issue three); and (4) whether the trial court =
erroneously=20
granted summary judgment against him on his claims for theft and =
tortious=20
interference with contract (issues four through eight). We =
address=20
these issues below.
1. =20
Summary Judgment in Relation to O=3DKane=3Ds Second=20
Amended Petition
In issue=20
one, O=3DKane=20
contends:
[T]he trial court =
committed=20
reversible and/or remand‑able [sic] error by abusing its =
discretion in=20
dismissing Appellant=3Ds new claims and =
entering a=20
final appealable order when Appellant=3Ds new claims were =
brought by=20
Appellant filing an amended petition after Appellees filed their =
Motion=20
for Summary Judgment but before the trial court entertained the =
motion,=20
and ergo, the trial court incongruously dismissed =
Appellant=3Ds new claims that =
were not=20
encapsulated or addressed in the Appellees=3D Motion for Summary =
Judgment=20
or by the Court and the Appellees never responded or answered to =
the new=20
claims and the Appellant was unassailably prejudiced =
thereby.
The=20
summary judgment was set for submission on May 2, 2006. =20
O=3DKane filed=20
his second amended petition on April 26, 2006, six days before the =
May 2=20
submission date. There is nothing in the record from which =
this=20
court can conclude O=3DKane=20
requested or received leave of the court to file his second =
amended=20
petition.
Texas Rule=20
of Civil Procedure 63 provides in part:
[A]any pleading . . =
. offered=20
for filing within seven days of the date of trial or thereafter, =
or after=20
such time as may be ordered by the judge under Rule 166, shall be =
filed=20
only after leave of the judge is obtained, which leave shall be =
granted by=20
the judge unless there is a showing that such filing will operate =
as a=20
surprise to the opposite party.
Tex.=20
R. Civ. P. 63. =20
A summary judgment proceeding is a trial within the meaning of =
this=20
rule. Goswami v. Metro. Sav. and Loan, 751 S.W.2d =
487, 490=20
(Tex. 1988). Nevertheless, under the supreme =
court=3Ds holding=20
in Goswami, we must presume the trial court granted leave =
to file a=20
late pleading even though the filer failed to request leave =
when: =20
(1) the record fails to show the trial court did not consider the =
amended=20
pleading, and (2) there is not a sufficient showing of surprise or =
prejudice on the part of the opposing party. Wilson v.=20
Korthauer, 21 S.W.3d 573, 578 (Tex. App.CHouston=20
[14th Dist.] 2000, pet. denied); see Goswami, 751 S.W.2d at =
490. Both of these negatively stated factors are present in =
the=20
instant case. For the reasons set forth in Goswami, =
we=20
presume the trial court granted O=3DKane leave=20
to file his second amended petition.
A party=20
may not be granted judgment as a matter of law on a cause of =
action not=20
addressed in a summary judgment proceeding. Espeche v.=20
Ritzell, 123 S.W.3d 657, 664 (Tex. App.CHouston=20
[14th] Dist. 2003, pet. denied) (citing Chessher v. Sw. Bell =
Tel.=20
Co., 658 S.W.2d 563, 564 (Tex. 1983)). Thus, when a =
plaintiff,=20
in his amended petition, asserts a new cause of action based on =
facts not=20
alleged in the original petition, a court cannot say the=20
defendant=3Ds motion=20
for summary judgment contemplated and embraced the additional =
claim in the=20
amended petition. Id. If, however, a motion for =
summary=20
judgment is sufficiently broad to encompass later‑filed =
claims, the movant=20
need not amend its motion. Id.; see Wilson, 21 =
S.W.3d=20
at 579. For example, summary judgment is proper when a =
defendant has=20
conclusively disproved an element central to all causes of action =
or an=20
unaddressed cause of action derivative of the addressed causes of=20
action. See Dubose v. Worker=3Ds Med.,=20
P.A., 117=20
S.W.3d 916, 922 (Tex. App.CHouston=20
[14th Dist.] 2003, no pet.).
O=3DKane does=20
not direct this court to newly alleged material facts in his =
second=20
amended petition, and we have found none. He contends only =
that he=20
added Anew causes=20
of action@ =
for=20
AConcert of=20
Action, Aiding and Abetting, liability under the Texas Theft =
Liability=20
Act, and under the doctrine of Trespass ab =
Initio.@ We=20
conclude appellees=3D =
summary=20
judgment motion, addressed as it was to the causes of action =
alleged in=20
O=3DKane=3Ds first=20
amended petition, was sufficiently broad to encompass the =
additional=20
allegations with the exception of the Theft Liability Act=20
claim.
Concert of=20
action. It=20
is questionable whether Texas law recognizes a concert of action =
theory of=20
liability. See Juhl v. Airington, 936 S.W.2d 640, 643 =
(Tex.=20
1996). Moreover, as the Juhl court explained, concert =
of=20
action Arequires=20
at least a tacit agreement to participate in some tortious act, =
done in=20
furtherance of a common goal or plan, and which causes injury. . . =
. =20
This has common elements with common law civil conspiracy, long a=20
recognized tort in this state.@ =20
Id. at 643B44.
O=3DKane=20
alleged civil conspiracy in his first amended petition. In =
their=20
summary judgment motion, appellees contended the summary judgment =
proof=20
negated the causation and meeting-of-the-mind elements of civil=20
conspiracy. Assuming without deciding Texas recognizes =
concert of=20
action, we conclude appellees=3D =
summary=20
judgment motion was sufficiently broad to encompass that=20
claim.
Aiding and=20
abetting. In=20
addition to alleging civil conspiracy in his first amended =
petition,=20
O=3DKane also=20
alleged aiding and abetting tortious interference with existing =
and future=20
business relations and contracts. O=3DKane does=20
not cite any Texas law recognizing aiding and abetting as a cause =
of=20
action separate from conspiracy or separate from the underlying =
wrongful=20
act, and we have found none. See Ernst & =
Young, L.L.P.=20
v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 n.7 (Tex. 2001) =
(because of disposition of case, not considering whether Texas law =
recognizes cause of action for Aaiding and=20
abetting@ =
fraud=20
separate and apart from a conspiracy claim). In their =
summary=20
judgment motion, appellees contended that the summary judgment =
proof=20
conclusively (1) negated the causation and meeting-of-the-mind =
elements of=20
civil conspiracy, (2) negated the causation and interference =
elements of=20
tortious interference with contract, and (3) established the =
affirmative=20
defense of privilege to the tortious interference claim. We =
conclude=20
appellees=3D =
summary=20
judgment motion was sufficiently broad to encompass O=3DKane=3Ds theory=20
of aiding and abetting.
Trespass=20
ab initio. In=20
his first amended petition, O=3DKane=20
alleged trespass to real property. Trespass ab initio merely =
refers=20
to the doctrine that a person who enters on real property lawfully =
pursuant to conditional or restricted consent, but remains after =
his right=20
to possession terminates and demand is made for his removal, =
becomes a=20
trespasser from the beginning; the law then operates =
retrospectively to=20
defeat all acts he did under color of lawful authority. =
Williams=20
v. Garnett, 608 S.W.2d 794, 797 (Tex. Civ. App.CWaco 1980,=20
no writ). In their summary judgment motion, appellees =
contended the=20
summary judgment proof conclusively negated the elements of (1) =
causation=20
and (2) O=3DKane=3Ds lawful=20
right to possess the premises at the time appellees entered the=20
property. They also argued the summary judgment proof =
established=20
their justification to enter based on the landlord=3Ds=20
consent. We conclude appellees=3D =
summary=20
judgment motion was sufficiently broad to encompass O=3DKane=3Ds theory=20
of trespass ab initio.
Liability=20
under the Texas Theft Liability Act. =20
In his first amended petition, O=3DKane=20
alleged conversion. In their summary judgment motion, =
appellees=20
argued the summary judgment proof conclusively negated the =
causation=20
element in relation to conversion, but the proof on which =
appellees relied=20
related to the business failure of Discount Wholesalers, not to=20
O=3DKane=3Ds alleged=20
loss of his personal property.
In his=20
first amended petition, O=3DKane also=20
claimed theft based on the alleged illegal removal of his personal =
property from inside his locked business establishment. The=20
appellees responded to this allegation solely on the ground that=20
O=3DKane was=20
apparently anchoring his claim to Civil Practice and Remedies Code =
section=20
33.001 to 33.003, and these sections do not create an independent =
cause of=20
action. See Tex. Civ.=20
Prac. & Rem. Code '' =
33.001B003=20
(setting forth rules governing proportionate =
responsibility). The=20
appellees did not otherwise address O=3DKane=3Ds theft=20
allegation.
Under the=20
Texas Theft Liability Act, A>Theft=3D =
means=20
unlawfully appropriating property . . . as described by Section =
31.03 . .=20
. Penal Code.@ =20
Tex. Civ. Prac. & =
Rem. Code=20
' =
134.002(2). Under Penal Code section 31.03, a person commits =
theft=20
Aif he=20
unlawfully appropriates property with intent to deprive the owner =
of=20
property. . . . Appropriation of property is unlawful if (1) =
it is=20
without the owner=3Ds=20
effective consent; [or] (2) the property is stolen and the actor=20
appropriates the property knowing it was stolen by another . . .=20
.@ =20
Tex. Penal Code=20
' =
31.03(a)B(b). =20
Appellees=3D =
summary=20
judgment argument and proof did not address any of these elements =
or=20
establish any defense to O=3DKane=3Ds Theft=20
Liability Act claim. We conclude appellees=3D =
summary=20
judgment motion did not encompass O=3DKane=3Ds Theft=20
Liability Act claim.
To=20
summarize, we conclude appellees=3D =
summary=20
judgment motion was sufficiently broad to encompass O=3DKane=3Ds claims=20
or theories of concert of action, aiding and abetting, and =
trespass ab=20
initio. We therefore overrule his first issue relative to =
those=20
claims or theories. But, we conclude appellees=3D =
summary=20
judgment motion was not sufficiently broad to encompass =
O=3DKane=3Ds claim=20
under the Texas Theft Liability Act. We therefore sustain =
his first=20
issue solely as it relates to that claim.
2. =20
Denial of O=3DKane=3Ds Motion=20
for Continuance
In issue=20
two, O=3DKane=20
contends:
[T]he trial court =
committed=20
reversible and/or remand‑able [sic] error by abusing its =
discretion in=20
denying [O=3DKane=3Ds] First Motion for =
Continuance because [O=3DKane] meet [sic] =
all the=20
necessary prongs in his First Motion for Continuance to entitle =
him to a=20
continuance and [O=3DKane=3Ds] sworn facts =
mandating a=20
continuance were uncontroverted the trial court did not retain =
discretion=20
to reject [O=3DKane=3Ds] sworn facts and =
deny the=20
Motion for Continuance and [O=3DKane] was =
undeniably=20
prejudiced thereby.
The trial=20
court=3Ds denial=20
of the motion for continuance is subject to a =
clear-abuse-of-discretion=20
standard of review. Joe v. Two Thirty Nine Joint =
Venture, 145=20
S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion if it =
reaches a=20
decision so arbitrary and unreasonable as to amount to a clear and =
prejudicial error of law. Id. A nonexclusive =
list of=20
factors we consider in deciding whether a court has abused its =
discretion=20
in denying a motion for continuance to conduct further discovery =
includes=20
(1) the length of time the case has been on file, (2) the =
materiality and=20
purpose of the discovery sought, and (3) whether the party seeking =
the=20
continuance has exercised due diligence to obtain the discovery=20
sought. Id.
When=20
O=3DKane filed=20
his motion for continuance, the case had been on file for over =
eight=20
months, and appellees=3D =
summary=20
judgment motion had been on file for over two months. =
Additionally,=20
O=3DKane=20
received thirty-nine days=3D =
notice of=20
the summary judgment hearing. When a party has received the=20
twenty-one days=3D =
notice=20
required by Texas Rule of Civil Procedure 166a(c) for a =
traditional motion=20
for summary judgment, the trial court generally does not abuse its =
discretion in denying a motion for continuance. Carter v. =
MacFadyen, 93 S.W.3d 307, 310 (Tex. App.CHouston=20
[14th Dist.] 2002, pet. denied).
In his=20
supporting affidavit, O=3DKane set=20
forth a list of fifteen assertions he believed the evidence he =
sought=20
would establish. He did not, however, describe the evidence =
itself=20
or further explain its materiality. See id. =
(AA party=20
seeking more time to oppose a summary judgment must file an =
affidavit=20
describing the evidence sought, explaining its materiality, and =
showing=20
the due diligence used to obtain the evidence.@); Lee=20
v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 198 (Tex.=20
App.CDallas=20
2004, pet. denied) (observing party requesting continuance had not =
provided any specifics about what documents she=20
anticipated).
Finally,=20
O=3DKane=20
merely represented that he had been diligent in his discovery =
requests and=20
appellees wrongfully objected to, and denied, those requests. =20
O=3DKane did=20
not specify when he had requested discovery, what he had =
requested, or=20
what he had been denied. He did not aver he had filed a =
motion to=20
compel discovery. See BMC Software Belgium, N.V. v. =
Marchand,=20
83 S.W.3d 789, 800B01 (Tex.=20
2002) (holding no abuse of discretion in denial of motion to =
continue=20
special appearance hearing when, among other matters, record did =
not=20
reveal party had ever filed a motion to compel or otherwise =
attempted to=20
obtain any discovery not provided).
We=20
conclude the trial court did not clearly abuse its discretion when =
it=20
denied O=3DKane=3Ds motion=20
for continuance. =20
We therefore overrule O=3DKane=3Ds second=20
issue.
3. =20
Denial of O=3DKane=3Ds=20
Objections to Appellees=3D =
Summary=20
Judgment Proof
In issue=20
three, O=3DKane=20
contends:
[T]he trial court =
committed=20
reversible and/or remand‑able [sic] error by abusing its =
discretion in=20
overruling [O=3DKane=3Ds] Objections to=20
Appellee=3Ds summary judgment =
evidence=20
and thereby denying [O=3DKane=3Ds] Motion to Strike =
and=20
Granting Appellee=3Ds Motion for =
Summary Judgment=20
based on incompetent summary judgment evidence when it is =
conspicuously=20
apparent that [O=3DKane] was =
prejudiced=20
thereby.
An=20
appellate court applies an abuse-of-discretion standard to review =
a trial=20
court=3Ds decision=20
to admit or exclude summary judgment proof. =20
See=20
Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 =
(Tex.=20
App.CDallas 2007, no =
pet.);=20
Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex. =
App.CAustin 1998, pet.=20
denied). To=20
obtain reversal, O=3DKane bears=20
the burden of establishing that any error in admitting the=20
summary‑judgment evidence of which he complains was =
reasonably calculated=20
to, and probably did, cause rendition of an improper =
judgment. =20
See Sanders, 970 S.W.2d at 727B28=20
(holding appellant failed to meet burden). O=3DKane=20
specifically complains about admission of (1) segments of =
O=3DKane=3Ds own=20
deposition testimony, (2) TexDOT Motor Vehicle Board=3Ds original=20
petition in its proceeding against O=3DKane and=20
Nicar, and (3) Coleman=3Ds=20
affidavit.
O=3DKane=3Ds=20
deposition. =20
O=3DKane=20
argues his deposition testimony was inadmissible under Texas Rule =
of Civil=20
Procedure 193.4(c), which provides, AA party=20
may not useCat any=20
hearing or trialCmaterial=20
or information withheld from discovery under a claim of privilege, =
including a claim sustained by the court, without timely amending =
or=20
supplementing the party=3Ds response=20
to that discovery.@ =20
Tex. R. Civ. P.=20
193.4(c). He also relies on the following provision:=20
AA party=20
need not request a ruling on that party=3Ds own=20
objection or assertion of privilege to preserve the objection or=20
privilege.@ =20
Tex. R. Civ. P.=20
193.4(b). He then reasons that answers to deposition=20
questions to which he objected were inadmissible. Rule =
193.4,=20
however, on its face does not apply to appellees=3D =
use of=20
O=3DKane=3Ds=20
deposition testimony because appellees never claimed a privilege =
in=20
relation to that testimony and there is no indication they =
withheld it=20
from discovery. The trial court did not abuse its discretion =
in=20
overruling his objection to this summary judgment=20
proof.
The TexDOT=20
Motor Vehicle Board=3Ds original=20
petition in In re License(s) of Pamela Dawn Nicar, and Jon=20
O=3DKane,=20
general manager jointly and severally, d/b/a/ Discount=20
Wholesalers. As=20
he did in the trial court, O=3DKane lists=20
five objections to this document: (1) lack of notarization =
and=20
certification, (2) presence of excisions, (3) allegation the =
petition had=20
been dismissed, (4) lack of TexDOT=3Ds=20
authority to proceed against him, and (5) improper purpose on the =
part of=20
appellees. O=3DKane=20
represented to the trial court and to this Court that the =
dismissal order=20
was attached as an exhibit to his objection, but the citation he =
provides=20
is for the petition, not the dismissal order, and the dismissal =
order is=20
not part of the record before this court. O=3DKane cites=20
no law in support of exclusion of this document other than =
Pretzer v.=20
Motor Vehicle Board, in which the court held that the Texas =
Motor=20
Vehicle Board has no statutory authority to sanction persons who =
neither=20
hold, nor are required to hold, a license from the =
Board,=20
for engaging in conduct prohibited only to license holders and=20
applicants. 138 S.W.3d 908, 909 (Tex. 2004) (per =
curiam). =20
O=3DKane=20
waived error in relation to this objection. See Tex. R. App. P. 38.1(h) =
(requiring appellant=3Ds brief to=20
contain clear and concise argument for contentions made, with =
appropriate=20
citations to authorities and record); Sterling v. =
Alexander, 99=20
S.W.3d 793, 799 (Tex. App.CHouston=20
[14th Dist.] 2003, pet. denied).
Coleman=3Ds=20
affidavit. As=20
he did in the trial court, O=3DKane=20
objects to the following portions of Jeff Coleman=3Ds=20
affidavit:
Enterprise executed =
its lease=20
for the Leased Premises on January 23, 2004. Prior to that =
time, I=20
was not aware of any dispute or litigation between the owners of =
the=20
Leased Premises and Jon O=3DKane.
I have never had =
any=20
knowledge about Jon O=3DKane=3Ds present or =
planned business=20
dealings or contractual relationships with third =
parties.
The owners of the =
Leased=20
Premises never discussed or mentioned that their intent was to =
unlawfully=20
lease the Leased Premises to Enterprise and thereby harm Jon =
O=3DKane. I made no =
such=20
agreement on behalf of Enterprise to participate in such a=20
plan.
By leasing the =
Leased=20
Premises, Enterprise intended to operate a rental car business, =
not invade=20
Jon O=3DKane=3Ds =
privacy.
O=3DKane=20
correctly contends Colman=3Ds=20
statements are those of an interested witness. A court may =
base=20
summary judgment on testimonial evidence of an interested witness =
only if=20
the evidence is (1) uncontroverted, (2) clear, positive and =
direct, (3)=20
otherwise credible and free from contradictions and =
inconsistencies, and=20
(4) capable of being readily controverted. See Tex. R. Civ. P.=20
166a(c).
Here,=20
however, Coleman=3Ds=20
affidavit was only one of ten exhibits supporting =
appellees=3D =
summary=20
judgment motion. With the exception of the Theft Liability =
Act=20
claim, appellees challenged each of O=3DKane=3Ds claims=20
by arguing that the summary judgment proof conclusively disproved =
the=20
necessary element of causation. Appellees did not rely in =
any way on=20
Coleman=3Ds=20
affidavit to disprove causation. In response to =
O=3DKane=3Ds claim of=20
tortious interference with contract, appellees argued that the =
summary=20
judgment proof conclusively (1) negated the existence of a valid =
contract,=20
(2) negated causation of damages, and (3) established privilege in =
relation to any interference. In response to O=3DKane=3Ds claim of=20
tortious interference with prospective contracts, appellees argued =
that=20
the summary judgment proof conclusively disproved (1) a reasonable =
probability of business relationships with third persons, and (2)=20
commission of an independent tort. Appellees did not rely in =
any way=20
on Coleman=3Ds=20
affidavit to support these arguments.
The trial=20
court did not state the basis on which it granted summary judgment =
in=20
favor of appellees on each of O=3DKane=3Ds=20
claims. =20
To the extent the trial court granted summary judgment based on a=20
meritorious ground that did not depend on Coleman=3Ds=20
affidavit, the trial court=3Ds denial=20
of O=3DKane=3Ds=20
objections to Coleman=3Ds=20
affidavitCeven if an=20
abuse of discretionCwas not=20
reasonably calculated to, and did not probably, cause rendition of =
an=20
improper judgment. See Sanders, 970 S.W.2d at =
727.
The trial=20
court=3Ds denial=20
of O=3DKane=3Ds=20
objections and motion to strike appellees=3D =
summary=20
judgment proof did not result in reversible error. We =
therefore=20
overrule O=3DKane=3Ds third=20
issue.
4. =20
Summary Judgment on Tortious Interference with=20
Contract
In issue=20
four, O=3DKane=20
challenges the summary judgment against him to the extent judgment =
was=20
granted because appellees conclusively disproved that they caused=20
O=3DKane=3Ds damages=20
in relation to his theft and tortious-interference-with-contract =
claims. =20
In issues five through eight, O=3DKane=20
challenges summary judgment against him on his=20
tortious-interference-with-contract claim to the extent judgment =
was=20
granted on the grounds that appellees had conclusively disproved =
the=20
elements of existence of a valid contract (issues five and six), =
and (2)=20
willful and intentional interference (issue seven), and had =
conclusively=20
proved their affirmative defense of privilege (issue eight). =20
As discussed below, we hold that appellees conclusively proved =
their=20
defense of privilege. Accordingly, we overrule O=3DKane=3Ds eighth=20
issue and need not address his remaining =
issues.
Summary=20
judgment standards and standard of review. A=20
trial court may render summary judgment only if the record shows =
an=20
absence of a genuine issue of material fact and the movant is =
entitled to=20
judgment as a matter of law. Tex.=20
R. Civ. P. 166a(c). A defendant is entitled to =
summary=20
judgment only if he (1) negates at least one element of each of =
the=20
plaintiff=3Ds causes=20
of action, or (2) conclusively establishes each element of an =
affirmative=20
defense to each claim. Sci. Spectrum, Inc. v. =
Martinez, 941=20
S.W.2d 910, 911 (Tex. 1997). An element is conclusively =
proved if=20
ordinary minds could not differ as to the conclusion to be drawn =
from the=20
evidence. Triton Oil & Gas Corp. v. Marine =
Contractors &=20
Supply Inc., 644 S.W.2d 443, 446 (Tex. 1982).
In=20
deciding whether a disputed issue of material fact exists =
precluding=20
summary judgment, we take as true evidence favorable to the=20
non‑movant. Nixon v. Mr. Prop. Mgmt. Co., 690 =
S.W.2d 546,=20
548B49 (Tex.=20
1985). We must indulge every reasonable inference in favor =
of the=20
non‑movant and resolve any doubt in his favor. =
Id. at=20
549. A summary judgment must stand or fall on the grounds =
expressly=20
presented in the motion. McConnell v. Southside Indep. =
Sch.=20
Dist., 858 S.W.2d 337, 339B41 (Tex.=20
1993). When, as in this case, the trial court=3Ds order=20
does not specify the grounds on which it granted the motion for =
summary=20
judgment, we will affirm the summary judgment if any of the =
theories=20
advanced in the motion is meritorious. Carr v. =
Brasher,=20
776 S.W.2d 567, 569 (Tex. 1989). Thus, for O=3DKane to=20
obtain reversal of the summary judgment on his=20
tortious-interference-with-contract claim, he must show each =
independent=20
ground alleged in appellees=3D =
motion=20
was insufficient to support the judgment. See Granada=20
Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 224 (Tex.=20
App.CAmarillo=20
1997, pet. denied).
Summary=20
judgment proof conclusively establishing =
appellees=3D =
defense=20
of privilege. The=20
elements of tortious interference with contract are (1) the =
existence of a=20
contract subject to interference; (2) the occurrence of an =
act of=20
interference that was willful and intentional; (3) the act =
was a=20
proximate cause of the claimant=3Ds damage;=20
and (4) actual damage or loss occurred. Baty v. Protech =
Ins.=20
Agency, 63 S.W.3d 841, 856B57 (Tex.=20
App.CHouston=20
[14th Dist.] 2001, pet. denied) (citing Powell Indus., Inc. v.=20
Allen, 985 S.W.2d 455, 456 (Tex. 1998)). Even if the =
plaintiff=20
establishes all the elements of a claim for tortious interference =
with a=20
contract, the defendant may avoid liability if it establishes the =
elements=20
of the defense of justification. Id. at 857 (citing=20
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 =
S.W.3d=20
74, 77B78 (Tex.=20
2000)). A[T]he=20
justification defense can be based on the exercise of either (1)=20
one=3Ds own=20
legal rights or (2) a good‑faith claim to a colorable legal =
right, even=20
though that claim ultimately proves to be mistaken.@ =20
Fin. Review Servs., 29 S.W.3d at 80. If a trial court =
finds=20
as a matter of law the defendant had a legal right to interfere =
with a=20
contract, the defendant has conclusively established the =
justification=20
defense, and the motive is irrelevant. Id.
The=20
gravamen of O=3DKane=3Ds=20
toritious-interference-with-contract claim is that appellees =
usurped=20
O=3DKane=3Ds=20
Alegal=20
business premises to which he retained a legal valid =
contract@ =
(1) by=20
wrongfully and illegally obtaining the rights to O=3DKane=3Ds=20
dealership facility, which he had legally leased from the =
landlord, and=20
(2) by causing O=3DKane to be=20
unable to use his dealership facility and earn profits from its =
use. =20
Thus, appellees=3D =
act of=20
which O=3DKane=20
complains is their occupancy of the premises.
To support=20
their defense of privilege, appellees attached their sixty-month =
lease for=20
the premises, dated January 23, 2004. The lease contained =
the=20
following representation: ALandlord=20
is the free owner of the Premises and has full right and lawful =
authority=20
to execute this Lease and perform the obligations of Landlord =
herein=20
contained without the consent or joinder of any other party. . .=20
.@ The=20
lease further provided, ALandlord=20
agrees that, so long as Tenant is paying the Rent and performing =
its other=20
obligations under this Lease, Tenant will peaceably and quietly =
have, hold=20
and enjoy the Premises throughout the term.@ =20
O=3DKane does=20
not argue that the contract failed unambiguously to grant =
appellees the=20
right to occupy the property. See =
Landry=3Ds Seafood=20
Rests., Inc. v. Waterfront Cafe, Inc., =
49 S.W.3d=20
544, 549 (Tex. App.CAustin=20
2001, pet. dism=3Dd)=20
(agreeing any contractual right to interfere must exist as a =
matter of law=20
pursuant to an unambiguous contract). Appellees=3D =
alleged=20
interference was therefore based on their own contractual right to =
occupy=20
the premises.
O=3DKane,=20
however, argues that appellees did not act in good faith because =
they knew=20
of O=3DKane=3Ds lease. =20
AThe issue=20
of the defendant=3Ds good=20
faith is pertinent only if the court determines the defendant had =
a=20
colorable right, but not a privilege, to engage in the conduct =
claimed to=20
have interfered with a contract.@ =20
Fin. Review Servs., 29 S.W.3d at 80.
We=20
conclude that appellees=3D =
theory of=20
privilege merited summary judgment in their favor on O=3DKane=3Ds claim=20
for tortious interference with contract. We therefore =
overrule=20
O=3DKane=3Ds eighth=20
issue. Given our disposition of this issue, we need not =
address=20
O=3DKane=3Ds issues=20
four through seven. See Cincinnati Life Ins. Co. v. =
Cates,=20
927 S.W.2d 623, 625 (Tex. 1996).
Conclusion
Having=20
concluded that appellees=3D =
summary=20
judgment motion was not sufficiently broad to cover O=3DKane=3Ds Texas=20
Theft Liability Act claim, we reverse the trial court=3Ds summary=20
judgment in favor of appellees on that claim, sever that portion =
of the=20
court=3Ds=20
judgment, and remand the case to the trial court for further =
proceedings=20
as to the Texas Theft Liability Act claim. We affirm the remainder =
of the=20
judgment.
/s/ =20
Wanda McKee Fowler
Justice
Judgment=20
rendered and Memorandum Opinion filed July 1, 2008.
Panel=20
consists of Justices Fowler, Frost, and Seymore.
See Tex. Occ. Code =
' 2301.257(c) (AA franchised dealer must apply for a =
separate=20
license under this section for each separate and distinct =
dealership as=20
determined by the board. Before changing a location, a dealer must =
obtain=20
a new license for that location.@).
See Tex. R. Civ. P. 166a(c) =
(AExcept on leave of court, the adverse =
party, not=20
later than seven days prior to the day of hearing may file and =
serve=20
opposing affidavits or other written response.@). On May 4, 2006, O=3DKane filed another ASecond Amended Petition,@ identical to the one filed April 26,=20
2006.
O=3DKane does not present an issue under =
Malooly=20
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). =
He does=20
not challenge the merits of the summary judgment against him on =
any claims=20
other than theft and tortious interference with =
contract.
O=3DKane also averred Coleman had stolen the =
documents=20
he needed.
O=3DKane argues he was entitled to a =
continuance=20
because he met all the mandatory Aprongs@ and his supporting affidavit was=20
uncontroverted. We disagree. See Fritsch v. J. M. =
English=20
Truck Line, 151 Tex. 168, 246 S.W.2d 856, 858 (1952) =
(AThere is nothing in the rules on =
continuance=20
requiring the granting of a first motion merely because it is in =
statutory=20
form and is not controverted by affidavit of the opposite=20
party.@).
Appellees did use =
Coleman=3Ds affidavit to support the additional =
argument=20
they had no knowledge of O=3DKane=3Ds lease to defeat the intent element of =
both=20
tortious interference with contract and tortious interference with =
prospective contracts.
When a trial court=3Ds order granting summary judgment does =
not specify=20
the ground or grounds on which it relied for its ruling, we will =
affirm=20
the summary judgment on appeal if any of the theories advanced are =
meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 =
(Tex.=20
1989).
As discussed above, in response =
to=20
O=3DKane=3Ds first issue, we have concluded that=20
appellees=3D summary judgment motion was not =
sufficiently=20
broad to encompass the Texas Theft Liability Act claim raised in=20
O=3DKane=3Ds second amended petition. We =
therefore=20
reversed judgment in favor of appellees on this claim and remanded =
it to=20
the trial court. Because of our disposition O=3DKane=3Ds first issue, we need not address his =
fourth=20
issue in relation to the Theft Liability Act =
claim.
Although, on appeal, =
O=3DKane refers generally to his =
Atortious interference claim,@ he does not address =
appellees=3D summary judgment arguments or proof in =
relation=20
to his claim of tortious interference with future business =20
relationships. The elements of that claim are (1) a =
reasonable=20
probability that the parties would have entered into a contractual =
relationship; (2) an independently tortious or unlawful act by the =
defendant that prevented the relationship from occurring; (3) the=20
defendant did such act with a conscious desire to prevent the =
relationship=20
from occurring or knew the interference was certain or =
substantially=20
certain to occur as a result of his conduct; and (4) the plaintiff =
suffered actual harm or damage as a result of the defendant's=20
interference. Le Meridien Hotels & Resorts v. LaSalle =
Hotel=20
Operating P=3Dship, I, L.P., 141 S.W.3d 870, 879 n.4 (Tex. =
App.CDallas 2004, no pet.).
To support their argument that =
they=20
conclusively disproved the element of the existence of a valid =
contract,=20
appellees attached O=3DKane=3Ds lease, the Task Force=3Ds application for an arrest warrant, and =
O=3DKane=3Ds deposition, which established, that by =
January=20
2004, O=3DKane had breached his lease by =
permitting the=20
premises to remain vacant for a period of thirty days without the=20
landlord=3Ds prior written =
consent.
In his argument on privilege, =
O=3DKane also asserts, without development =
or record=20
support, AThe Appellant=3Ds dealership was filled with tens of =
thousands of=20
dollar [sic] in value of the Appellant=3Ds personal property to [sic] which the =
Appellee=20
burglarized and stole same.@ |