Caller-Times Publishing Co. v. Triad Communications, Inc.

provides Wyatt to the proceedings in the court allowed amend affida- “[d]efects form of affidavits or attachments will not vits. specifically grounds

be for reversal unless sustaining reaffirm our decision pointed objection by opposing by out point thirty-five reversing of error refusal, party to opportunity, but remanding those issues to the trial court. 166a(f). A amend.” Tex.R.Civ.P. Houston requirement objec court extended the to apply

tion at the trial level defects to to

prevailing parties as well. Walkoviak 623, Corp.

Hilton Hotels 626-627 (T ex.Civ.App.— [14th Dist.] Houston n.r.e.). writ ref’d The court held summary party prevailed judg on object opposi ment must to defects in the CALLER-TIMES PUBLISHING trial to the tion’s affidavits at order raise COMPANY, INC., appeal. Though defects on Id. Walkoviak Appellant, v. case, distinguishable from factually this to principle applies the this case: the opportunity

must have to amend defec COMMUNICATIONS, TRIAD tive defects are affidavits before those INC., & Wheels d/b/a oppo to summary judgment used defeat a Keels, Appellee. Here, McGregors objected nent. the No. 13-88-328-CV. level, defects the trial but because Wyatt given opportunity was not the Texas, Appeals of Court of amend, amend or to refuse result Corpus Christi. they objected was the same as if had not March 1993. grant hold all. We trial court’s partial summary judgment Rehearing without allow Opinion Granting Part ing Wyatt opportunity to amend the May 1993. upon hearing objections affidavits Rehearing Overruled June the defects was erroneous. analysis original in our opinion shows that this error was harmful. Had Wyatt

the court amend affi- allowed (as attempted he mo-

davits to do his

tion), they would have a fact issue revealed

as to the reasonableness the date violations,

discovery alleged of the DTPA by Wyatt’s pleadings.

an issue raised rehearing

McGregors argue on

Wyatt’s discovery date is not relevant summary judgment, the DTPA

defeat since alleged were behalf of

violations Sun- however, Wyatt,

belt. was a Sunbelt rights to ma- voting

stockholder and had affidavit, His well

jority of stock. as Rogers,

as that of who was Sunbelt in the and more involved trans-

stockholder Wyatt, would raised a fact

action than have reasonably Sunbelt dis-

issue as whether alleged

covered the DTPA violations within suing. Summary years judg- before

two proper

ment would not have been had the Chriss, Rangel, Rangel & Cor-

Jorge C. Hatched, Christi, Ramey Mike A. & pus Flock, Tyler, appellant. Vickery, Arnold Anderson

E. Landers Kilbride, Houston, for Vickery, Vickery & appellee. HINOJOSA, Jr., FEDERICO G.

Before DORSEY, SEERDEN, JJ. OPINION HINOJOSA, Justice. G. FEDERICO Texas from the remand On Court, Publishing v. Co. Inc., Communications, 826 S.W.2d (Tex.1991), appellant’s we address 576 challenge legal which of error points sufficiency sup- of the factual appellant finding that porting con- appellee’s tortiously interfered with Trust, 939; tractual and relationships.1 ria Bank & 811 S.W.2d at 107; Sakowitz, Inc., reverse and remand. 669 S.W.2d at Hardin (Tex.Civ. Majors, S.W. facts, For a statement of the see Caller- writ). App. The de — Amarillo Times Publishing Co. v. Triad Communi legal justification fense of or excuse cations, Inc., (Tex. 165-66 legal protects good faith assertions of App. Corpus 1990), rev’d, — Trust, rights. Victoria Bank & (Tex.1991). In appeal, S.W.2d 576 this 939; Sakowitz, Inc., parties primarily contest whether Caller- privileged legiti Times' actions were as competition. mate competitors law affords the same business some freedom to com prove To tortious interference pete previously for business which is sub contract, plaintiff prove with the must ject nothing to more than a contract ter willfully the defendant intentionally and in See, at e.g., minable will. Times Herald contract, proximately terfered with a thus Printing Corp., v. A. H. Belo 820 S.W.2d causing plaintiff the damages. actual Vic 206, (Tex.App. 215-16 [14th — Houston toria Bank Brady, & Trust Co. v. 811 1991, writ); Dist.] (SECOND) Restatement 931, (Tex.1991); S.W.2d 939 Juliette Fowl (1979). party may of TORTS 768 A cause § Assoc., 660, er Homes v. Welch 793 S.W.2d party a third a terminate terminable-at- (Tex.1990). prove 664 To tortious interfer will party’s competitor contract with the prospective ence with contracts or business may and obtain the future benefits for the relationships, plaintiff prove the must party’s competitive advantage own by of the willfully intentionally defendant and fering higher better contract terms or a prevent acted to a relationship contractual price. Printing, Times Herald 820 S.W.2d plaintiff that the had a probabil reasonable (citing at 215 (Second) Restatement of ity realizing, of proximately causing thus i). 768 comment § Torts plaintiff the damages. actual Corp. Exxon 768, 648, § (Second) Allsup, v. 808 (Tex.App.— Restatement of Torts S.W.2d 659 “Competition Proper Improper as or Inter- 1991, Corpus denied). writ Texas ference,” provides: protects law existing as well prospective as 1) intentionally One who causes a contracts from third interference. A terminable- person not to prospective enter into a at-will contract is party valid until a termi it, contractual relation with nates another who and third may not tortious competitor is his or ly not to continue an interfere with it. Sterner v. Marathon Co., existing contract 686, terminable will (Tex.1989). Oil 767 S.W.2d 689 not improperly does interfere with the every Not act which interferes other’s relation if with another’s contract relations is tor- a) the relation in- concerns a matter party tious. A privileged is to interfere competition volved in the between the with another’s contractual or rela business actor and the other and 1) if tions he does so in a bona fide exercise b) the actor employ wrongful does not 2) rights of his right own or his to the means and subject equal matter is superior to or c) his action does not create or contin- that of party. the other Victoria Bank & ue an unlawful restraint of trade and Trust, 939; Sterner, 811 S.W.2d at 767 d) purpose part his 691; Sakowitz, is least Steck, S.W.2d at Inc. v. 669 competing advance his interest in 105, (Tex.1984). may “One be the other. ‘privileged’ though to assert a claim ‘even may doubtful, 2) that claim long be so as it competitor The fact that one is of ” asserted a legal right.’ colorable Victo- another for the of a third Appellant points raised support jury finding fourteen of error on the of tortious interfer- remand, original ence, 10, points through addressing submission. On we are called and the upon points addressing sufficiency address 13 and support the of evidence to the legal sufficiency the and damages. factual of the evidence finding if we point uphold and the causing rule the prevent his person not does finding. support the any evidence to existing with the find breach an contract State, Transp., v. interfer- States Inc. being improper an Southern other from (Tex.1989). not terminable ence if the contract is at will. factual suffi When review the “wrongful means” evidence, we consider ciency of the violence, fraud, 768(l)(b) physical include § or supports weigh all evidence which the suits, prosecutions, but criminal civil Plas-Tex, jury’s finding. undermines the eco limited persuasion or do not include Corp., States Steel Inc. v. United pressure. Restatement nomic (Second) of (Tex.1989). aside set may re party e. A TORTS 768 comment § we find that verdict when persons in the busi third fuse to deal with sup standing alone too weak parties compete because ness which finding is so finding or that the port persons competitor; deal with the overwhelming weight against however, in order party may do so unjust and manifestly it is evidence that monopoly. illegal establish or maintain Alviar, 395 clearly wrong. Garza another to deal Id. One who refuses (Tex.1965). illegal in order to establish or maintain or The instructed that excuse jury, inten monopoly purposes the same or for sought to party if the just may cause exist persons not to deal tionally causes third compete marketplace, found fairly in the the subject liability to the is with other Caller-Times, exerting pow monopoly that other. Restatement (Second) of Torts market, maliciously the Furthermore, er over relevant the com f. 768 comment § Triad’s contractual or busi interfered with afoul of petitive used must not run means relationships and that Caller-Times legisla ness federal applicable state or antitrust potential Therefore, alleges targeted customers and party Triad’s Id. when a tion. fur special jury deals. The prospective with busi customers tortious interference proxi be a com ther found such interference to subject are ness relations which the or injury to Triad’s business he suffered mate cause of petition, party the must show damages of 2) 3) actual 1) property defen and found damages by actual caused $365,416.00. 4) acts interfered dant’s intentional which 5) re reasonably probable supports the The evidence 6) lationship which violated antitrust custom- targeted Triad’s that Caller-Times persons laws or to refuse caused The shows special deals.2 evidence ers for party. deal with the advertising circu- Triad its that distributed lar, Keels,” Thursdays and legal sufficiency on “Wheels and When we review the offered “Wheels point, “no that Caller-Times the evidence or a evidence” half-price for ads rates only the evidence and reasonable Keels” advertisers consider Thursdays jury in the Caller-Times. Caller- support inferences tend to the on that testimony the Thurs- disregard presented that findings, all evidence and Times and we au- half-price to all day rate was available contrary. Responsive inferences Am., Call- who advertised with Boy tomobile dealers Sys., Terminal Inc. Scouts of However, evi- (Tex.1989). presented We over- er-Times. Caller-Times, average jury cost. 2. that Caller-Times maintained variable found monopoly power Corpus mar- supreme its in Christi at court reversed 587-88. The by targeting potential ket Triad’s or customers ground that the court's Triad failed meet special af- customers for deals. This Court by newly test for antitrust violation announced firmed, finding the evidence to show sufficient set presenting evidence Caller-Times engaged predatory pricing. in average prices Id. variable cost. below its Caller-Times, 791 S.W.2d at 170. The Texas supreme did address the court 588. reversed, announcing evi- Court jury’s finding Call- supporting subjective party’s ad- dence of the intent is not potential targeted customers or er-Times Triad's predatory pricing missible to show and that special deals. customers for predatory party’s prices by are measured privileged compete dence one automobile dealer the Times was for the market, Corpus subject who did not adver- contracts to the limitation of fair dealing. spent Printing, tise “Wheels and Keels” but who Times Herald op 215; $5,000 $10,000 monthly advertising S.W.2d at (Seoond) Restatement Caller-Times, special did not learn of the § Torts Instead, directly offer from Caller-Times. The fact that Caller-Times tar advertising agent dealer’s learned of geted Triad’s customers is not itself the deal from other sources and had to liability. prac sufficient to establish Such place telephone call to the Caller-Times permitted competitors’ tices are under the half-price to obtain the client. rate for his rule. Restatement (Second) § of Torts presented

Triad also evidence that there Liability comment b. for tortious interfer was one other dealer who did not do competitor’s prospective ence with a busi spe- business with Triad who received may only ness relations follow where Thursday cial rate. All other dealers who privilege punctured by wrongful use of did not do business with Triad “chose” to means, the maintenance or establishment pay the full rate Thursday advertise- illegal monopoly, of an or the absence of present- ments in Caller-Times. Triad also any competitive intent to advance a inter advertising ed evidence that Caller-Times’ est. salespersons collected commissions on the Even if Caller-Times desired to sold, advertising they number of lines of competitors, eliminate the evidence shows suggesting that salespersons Caller-Times’ partially that Caller-Times was least reasonably expected would publish be by competitive motivated interests. The potential discounts to all customers in or- record contains no evidence that Caller- der to increase their commissions. process, Times resorted to civil criminal jury may

The prosecution, fraud, believe or disbelieve physical or in violence any or all of testimony any attempt away witness. its to wrest business from Hipp Service, Inc., v. Lowrie J.D. Well 800 jury finding Triad. The that Caller-Times 668, S.W.2d 672 (Tex.App. Corpus tortiously interfered with Triad’s business — 1990, denied). jury writ The could choose supportable only relations is if the evidence to the testimony disbelieve that Caller- shows damages that Triad suffered actual Times offered the half-price 1) deal intentionally to all of because Caller-Times acted customers, its especially 2) in light 3) of the fact prevent relationship to a business that that a non-Triad customer had to learn of probability Triad had a realiz reasonable the special rate independent 4) from an ing source and violated state or federal anti request and had to it and that intentionally per Caller-Times trust laws or caused third claimed that all but one other attempt non-Triad sons to deal in not with Triad an to customer “chose” pay higher prices to for monopoly power. maintain Caller-Times’ the same services. reviewing After found, jury and the do not record, we are unable to state that contest, monopoly that Caller-Times held jury’s finding that targeted Caller-Times power pertinent over the market. The Su- Triad’s special customers for deals is so preme Court of Texas has declared there against great weight and preponder was no evidence that Caller-Times violated ance of the evidence manifestly that it is by antitrust laws in engaging predatory unjust. Co., Pool v. Ford Motor 715 pricing. See Publishing Caller-Times 629, (Tex.1986). S.W.2d 635 Co., Offering special 826 S.W.2d at 588. produced Triad evidence that one custom- subject deals to competition customers to er, Pagan-Lewis, had place contracted to Thus, not tortious behavior. ads in “Wheels and Keels” for six months. finding of tortious interference with busi- Nevertheless, Triad admitted that all of its ness supportable only relations is if the customers had contracts that were termina- evidence is sufficient to show that Caller- ble at will. Since all of the contracts which intentionally Times persons caused third to existed will, were terminable at Caller- refuse to deal with Triad.

24 Toyota, prove produced any no evidence that Triad did not tortious

Triad special respect Paul York’s offered deals interference Caller-Times for existing exchange Triad’s customers examine whether evi- business. now refusing special their continue business dence that Caller-Times offered a that, produce exchange Triad. Triad did deal Paul York in for a refusal subsequent precipitat may support to the events which to deal with Triad suit, employee another small tortiously ed this that Caller-Times interfered “shopper” newspaper, had been a for who relationships. with other business employee, by was mer Caller-Times told may A trier stack an of fact advertising salesperson that Caller-Times an inference. Briones v. upon inference just “he offer some would [her customers] Inc., Store, 7, Dept. Levine’s like special half-price deals [Caller-Times] Bullard, (Tex. 1969); Rounsaville for and Keels’ and that had ‘Wheels [she] Bros., Inc., 791, Ice (Tex.1955); shopper for get any wouldn’t [her (Tex.App. 840 S.W.2d Paso — El produced newspaper].” evi also writ); Wadley & L. Research J.K. Susie attempted negotiate con dence it Beeson, (Tex. Inst. v. Toyota York and that Call tract with Paul denied). App. writ Another — Dallas Toyota offered Paul York er-Times had shopper newspaper was warned small special advertising exchange rates in half-price deals Caller-Times would offer advertising Toyota not Paul York shopper newspaper and that the small in Keels.” The evidence “Wheels and warning get any would not business. from and Keels” cludes invoices “Wheels face does not state Caller-Times its salesper detailing Toyota Paul York ads commercially induce threatened alleged purchased interfer sons after It mean refuse deal. could parties to testimony ence and Caller-Times legiti exercise its that Caller-Times would Toyota’s Paul adver the volume of York offering competitive option of better mate with “Wheels and Keels” was tisements newspaper than could smaller rates only a fraction the amount small select that advertisers would contemplated acquiring from Triad had jury affordability A circulation. Toyota. Paul York warning that Call indicated could infer produced Triad no evidence that it had a induce illegally er-Times threatened entering probability into a reasonable of deal, it then to refuse to but parties third relationship Toyo- with Paul York business that Caller- from that inference must infer greater actually that one it ta was than the to re similarly induced Times produced testimony realized. While Triad inference with Triad. Such an fuse to deal Toyo- Paul York that Caller-Times offered no evidence. from an inference is special advertising exchange ta rates evidence could from direct jury infer Triad, doing with Paul York not business Toyo- Paul York that offered Caller-Times produce any Triad evidence that failed on contingent advertising rate special ta a Toyota actually Paul York advertised with that Caller- Triad a to deal with refusal alleged Triad before interference. many of similar offers Times made produced negoti- Triad that it was evidence . From customers. prospective Triad’s ating business, Toyota’s for Paul York but make may not however, jury a inference alone is no evidence evidence of that one inference subsequent probability Triad had a reasonable of enter- such actually accepted customers Triad’s relationship ing a with Paul contractual with to do business and refused an offer Toyota. relationships York Triad’s with than to obtain reason for no other Triad other are no evidence that Paul customers another advertiser. rate from favorable choose to at a York would deal Triad had Finding no evidence actually it greater than did. Since level con- realizing a of probability reasonable there is no evidence that Triad had a rea- Toyo- Paul York relationship with entering great- into probability sonable tractual ta, that Caller- finding evidence relationship er with Paul York intentionally any judgment Times caused other third We REVERSE the of the trial person Triad, to refuse to deal with we court and REMAND this case to the trial must legally conclude the evidence is insuf- court for a new trial on all of Triad’s ficient to establish tortious interference causes of action. appel- business relations. We sustain point

lant’s thirteenth By finding of error. legally support insufficient to tortiously in- relations,

terfered with Triad’s business

do reach sufficiency point the factual points

of error or the relating of error

damages. TRAYLOR, Appellant, Alonzo

Ordinarily, upon sustaining a “no point, evidence” we would reverse and ren However, since, der a decision. as shown Texas, Appellee. STATE above, Triad’s tortious interference with depend part business relations claims No. 08-92-00227-CR. this state’s antitrust laws and since Triad’s Texas, Appeals Court of antitrust action failed as a result of El Paso. new tests announced the Texas Su Court, preme we believe that the interests April justice compel us to remand Triad’s tor- tious interference with business relations

claims to the trial court for a new trial.

We REVERSE the judgment of the trial

court and REMAND Triad’s tortious inter-

ference with business relations claims to

the trial court for a new trial.

The Texas Court ordered us to

remand Triad’s antitrust claims to the trial trial,

court for a new requested by “if Caller-Times,

Triad.” 826 S.W.2d at 589.

Accordingly, if in a motion rehearing requests,

Triad so the antitrust claims will

also be remanded to the trial court for a

new trial.

OPINION ON MOTION

FOR REHEARING

Caller-Times and Triad have filed mo- rehearing

tions for part this case. As

its motion for rehearing, request- Triad has

ed that we remand its antitrust claims to grant

the trial court for a trial. new request pursuant

this to the order of the Texas, Court

Publishing Communications, Co. v. Triad (Tex.1992) (opinion

rehearing). In all respects, deny other rehearing motions for confirm

opinion we issued on March

Case Details

Case Name: Caller-Times Publishing Co. v. Triad Communications, Inc.

Court Name: Court of Appeals of Texas

Date Published: Jun 7, 1993

Citation: 855 S.W.2d 18

Docket Number: 13-88-328-CV

Court Abbreviation: Tex. App.