Jerome K. DEALEY et al., Appellants, v. DALLAS COUNTY JUNIOR COLLEGE DISTRICT and Bill J. Priest, Appellees.
No. 4771.
Court of Civil Appeals of Texas. Waco.
Nov. 14, 1968.
Rehearing Denied Dec. 12, 1968.
432 S.W.2d 724
DAVIS, Justice.
McKool, McKool, Jones & Shoemaker, Bob Shoemaker, Dallas, for appellants. H. P. Kucera, Dallas, for aрpellees.
Plaintiff-appellant, William W. Epps, sued defendants-appellees, Texas Builders Development Company, et al., for damages as the result of faulty construction of a new residence purchased by appellant from the appellees. Recovery was sought оn the basis of fraud. Appellant alleged that, prior to making the purchase, the appellees, through their agents, servants and employees represented to appellant that the brick home was a new home, that it had been constructed and completed in a good and wоrkmanlike manner, and such representations were false. Appellant alleged that after he had purchased the house, he discovered the negligent and careless manner that was used in the construction. He sought Five Thousand and No/100 ($5,000.00) Dollars in damages.
Appellees filed some special exceptions, many of which were sustained. They also filed a motion for summary judgment. Their motion for summary judgment is based on appellant‘s “original petition“, that their cause of action is barred by the two and four year statutes of limitations, that there was not any genuine issue as to any material fact between the parties, and they were entitled to a judgment as a matter of law that appellant take nothing.
The trial court granted the motion; but, he did not render a summary judgment that appellant take nothing. Instead, the trial court dismissed the suit with prejudice, and at appellant‘s costs. Appellant has perfected his appeal and brings forward seven points of error.
By point six, appellant says the trial court erred in granting a summary judgment because there exists in the case a genuine disputed issue of material facts. There were no affidavits, depositions or admissions of fact that would justify the trial court in granting the motion for summary judgment. The presence, or absence, of a genuine issue of material fact cannot be shown in a summary judgment procedure by mere pleading. Dillion v. Greenville Hospital Authority, Tex.Civ.App.1966, 404 S.W.2d 956, N.W.H. By point seven, he says the trial court erred because there was no evidence to support the summary judgment. There were genuine issues of material facts raised by the pleadings based upon fraud and the statutes of limitations; although, the pleadings will have to be further amended to name the agent, servant and employee who made thе false representations. Lawyers Surety Corp. v. Sevier, Tex.Civ.App.1961, 342 S.W.2d 604, N.W.H.; Kuehnert v. Ong, Tex.Civ.App.1963, 373 S.W.2d 821, W.R., N.R.E. There is no set rule for pleading fraud. 26 Tex. Jur.2d 62, § 99. Points six and seven arе sustained.
The other points of error are overruled.
The judgment of the trial court is reversed, the cause of action is reinstated, and remanded.
MCDONALD, Chief Justice.
This is an appeal by plaintiffs Dealey and Roberts from summary judgment that they take nothing in their suit against defendant Dallas County Junior College District and Bill J. Priest.
Plaintiffs (who are real estate agents) sued defendаnt Junior College District and its President, Priest, alleging plaintiffs had an agreement with Lone Star Cement Corporation to organize and assemble data on a 200 acre tract of land owned by Lone Star, to solidify sentiment in favor of such land for location of the college site, to persuade thе Site Selection Committee and the Trustees of the College to choose such site, and to negotiate on behalf of Lone Star with the College District to secure the highest obtainable price; that defendants wilfully induced Lone Star to breach its agreement with plaintiffs and closed out thе sale of the land to the College District without plaintiffs, so as to deny plaintiffs their fee for their services. Plaintiffs alleged further that Lone Star sold the 200 аcres directly to the District for the College Site for $762,723.75, and that plaintiffs’ fee should have been 5%, or $32,881.81; that plaintiffs in a prior suit sued Lone Star and the prеsent defendants for such amount; that Lone Star compromised and settled the suit against it for $6,000; that plaintiffs took a non-suit against present defendants, and thereafter instituted the present suit for $26,881.81, (that is their damage as alleged in the former suit $32,881.81 less the $6,000, paid in settlement by Lone Star).
Defendants answered, amоng other things, that plaintiffs were volunteers in whatever they did; that plaintiffs had no contract in writing to sell Lone Star‘s property; and that defendant Collegе Dis-
Thereafter defendants moved for summary judgment, assеrting defendant College District was incorporated under the laws of Texas to further the public education system of Texas, and that defendant Priest is Chancellor (formerly President) of the college; that defendant college can and does exercise governmental functions only, and is immune frоm liability for any tort action for any of its acts; that defendant Priest, by reason of his position with the District, is likewise immune from any personal liability for any acts of his while carrying out the policies of the Board of Trustees of the District; and that the suit against defendants for wilfully inducing Lone Star to breach its agreеment with plaintiffs is a tort, and defendants are not liable as a matter of law.
The trial court, as noted, sustained defendants’ motion for summary judgment and decreed that plaintiffs take nothing.
Plaintiffs appeal, contending the trial court erred in granting defendants’ motion for summary judgment because there are genuine issues of fact requiring determination by a jury.
Plaintiffs emphasize that their case is not one of a real estate agent attempting to seеk a commission for a sale of real estate; that their contract with Lone Star was to render specialized services to cause thе College District to select Lone Star‘s property for its campus site; and that defendants wilfully induced Lone Star to breach its contract.
A pеrson who induces a breach of contract existing between two other parties commits a tort. Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800, 62 L.R.A. 962; American Surety Co. of New York v. Shaw, Tex.Com.App., 69 S.W.2d 47; Yarber v. Iglehart, Tex.Civ.App. (n.w.h.) 264 S.W.2d 474.
Defendant Dallas County Junior College District is a body politic of the State of Texas, created under
The Russell case, supra, further holds that thе Superintendent is likewise not answerable in a cause sounding in tort for his actions while discharging his governmental educational functions.
Thus, even if defendants induced the breach of a contract between plaintiffs and Lone Star, defendants are not answerable in this suit.
Moreover, the College Distriсt acquired the property of Lone Star through eminent domain proceedings, which it was authorized to do. And if a person has a legal right to do something, he can proceed to do so without fear of legal consequences, even though he may have acted through bad motives. Burnett v. Word, Inc., Tex.Civ.App., W/E Dism‘d, 412 S.W.2d 792; Chapman v. Pollock, D.C., 148 F.Supp. 769.
The judgment is correct. Defendants are not liable as a matter of law. Plaintiffs’ points and contentions are overruled.
Affirmed.
WILSON, Justice (concurring).
I concur in the judgment on the basis the land was acquired by eminent domain.