*1 judgment granted personal appearance No default in this shall be have made a Therefore, proof cause until the citation necessary it case. will not be rule, provided by service as this or as issue and serve either with further citation. ordered the court in the event citation (Vernon 1979); TEX.R.CIV.P. 123 Travieso is executed under Rule shall have Travieso, (Tex. 821-22 v. S.W.2d been on file with the clerk of the court writ); App. Antonio no H.L. — San days, day filing ten exclusive of the Co., McRae v. Hooker Construction Co. day judgment. and the (Tex.Civ.App. 579 S.W.2d — Austin 1979, writ); Roberts, no Neal v. 445 S.W.2d affirmatively Unless the return re at 60. veals that it has in the district clerk’s been (10) required days, the
office for the ten judgment insofar The of the trial court judgment default rendered is void. Melen WM, it affects the defendants HB & as Schatzman, Inc., dez v. John R. 685 Inc., Volkswagen, and d/b/a Lone Star (Tex.App. S.W.2d Paso — El Horn, herein, appellants RE- Gene writ). no VERSED and the cause is REMANDED bar, proceedings. In the case there is no indica the trial court for further relating HB tion on the sheriffs return WM, Inc., Volkswagen,
& d/b/a Lone Star
as to when such return was filed with the County
Bexar District Clerk. It is conclu
sively by the record that neither shown WM, HB
defendants Gene Horn nor & Volkswagen filed an an
d/b/a Lone Star
swer, ser appearance made an or waived process prior BANK, vice of to the date that de Aрpellant, STATE NATIONAL judgment rendered them. fault affirmatively The record does not reflect ACADEMIA, 103, 106(a) INC., Winsberg, Joseph compliance strict with Rules Consequently, judgment Ingrid Winsberg, Appellees. the default 107. appealing defendants. is void as No. 13-89-015-CV. Moreover, co-defendants, where there are personal court did not have trial Texas, Appeals Court defendant, one the final jurisdiction over Corpus Christi. re as to all defendants must be judgment Oct. 1990. Keepsake Reed v. Gum Dia versed. See (Tex. Center, mond 657 S.W.2d Rehearing Jan. Overruled writ); 1983, no Neal App. Corpus Christi — Roberts, (Tex.Civ.App. S.W.2d 1969, writ); no Sin —Houston Dist.] [1st Supply 172 S.W.2d v. Cen-Tex dorf 775, no (Tex.Civ.App. Paso — El writ). Here, the record does not show valid WM, Inc., on either HB & d/b/a
service Volkswagen, Horn. or Gene
Lone Star first, points and third of er- second Having those sustained
ror are sustained. necessary that address
points, it is not we remaining error. points of (appellants) HB &
The defendants
WM, Inc., Volkswagen, Lone Star d/b/a Horn, prosecu by virtue of their and Gene error, by way of writ of appeal of this
tion *4 Rankin, Rankin, III,
H. Hollis Mullin & McAllen, Hirshman, Sonnenschein, Harold Carlin, Ill., Rosenthal, Chicago, Nath & Atlas, Powell, Gary Lisa L. Morris D. Gur- witz, Powell, McAllen, Atlas & Scott J. *5 Atlas, Garcia, Margaret Ling, C. Carlos Owens, Groff, Betty R. A. Jill I. James Reeder, Jr., Elkins, Houston, Vinson Su- & Austin, Elkins, Conway, san G. Vinson & appellant. for Reed, Munoz, Roger Tippit, John L. Reed, McAllen, appellees. Hockema & for NYE, C.J., Before and BENAVIDES KEYS, and JJ.
OPINION BENAVIDES, Justice. (Bank), an Illinois
State National Bank brought present action corporation, Academia, Inc., a against on Texas based $340,000 made to deficiency on loan interest, predecessor in A/C Academia’s Academia, Company (A/C). and Uniform Ingrid Winsberg as inter- Joseph and venors, con- for counterclaimed breach tract, dealing, and tortious bad faith unfair interference, dis- conversion and emotional tress, agreement on an oral between based underlying note parties to extend the wrongful col- year and by one the Bank’s and on collat- lection efforts foreclosure trial, ren- jury judgment eral. After in favor the Bank and dered $6,988,873.03,Joseph Wins- Academia $3,670,497.68, Ingrid Wins- berg for $2,613,665.12. appeals The Bank berg for We re- seventy-eight points error. court and judgment the trial verse judgment render inventory Academia and the on receiva- A/C’s accounts Winsbergs nothing. ble, take guaranteed by Winsbergs addition, Academia. In there is a written The record Joseph Winsberg reveals that understanding letter of of the same date began family’s work at clothing his store in stating may only that the loan be amended Illinois, Chicago, in 1947. In the 1960s he agreement signed by parties. written all started a business to manufacture and sell parochial student February Partnership uniforms to In schools de- Chicago Joseph Ingrid Bank, area. building Wins- loan faulted on its berg originally organized the business as but the Bank immediate took no action Company, A/C Uniform corpora- building an Illinois The loan default. was secured tion, operating Winsberg Depart- by mortgage assignment out of the of rents on Chicago. Winsbergs Winsberg Building. ment Store in eventually centered their efforts on the July order to combine both manufacturing aspects and financial manufacturing and the sales arms of business, Donnamay while and Walter Sif- corporation the uniform business under one ferman, family joint friends of the marketing purposes, pur- business, owners of the' marketed and sold separate chased A/C and dissolved it as a Chicago uniforms out of the store. The entity, accepting responsibility for all of Winsbergs unsuccessfully tried to manu- According A/C’s debts and liabilities. facture their uniforms out of a Wisconsin Joseph Winsberg, Bank officials had been plant, eventually settled on note, pressuring repay him to the A/C due McAllen, Texas, as the location for the comply, on its face in October. order to manufacturing arm of their uniform busi- Winsberg began looking buyer for a for his *6 Winsbergs incorporated ness. The Acade- early uniform business as as June of 1986. mia in plants: Texas with twin one in Tex- August $37,000 Winsberg paid fabric; as to cut the one in Mexico to sew principal on the of the note. A/C How- together. the uniforms completed The uni- ever, the balance of the loan remained out- through Chicago forms were then sold 30, 1986, standing on October when A/C- directly store to attending children various according Academia defaulted to the terms parochial approved schools that had of the written note. uniforms for wear. 12, 1986, On December the Bank secured significant banking The relationships be- judgment replevin against an Illinois tween State National Bank and A/C- allowing property A/C seizure of the secur- began Joseph in when ing premises the A/C note and the on Winsberg negotiated a line of credit for his which it was located. On December uniform business. Other loans made were pursuant judgment, represent- Store, Winsberg Department to which wаs along atives of the Bank with the local dissolved in and to the North Clark Chicago sheriff closed down the location Partnership (Partnership), composed Street changed building. the locks on the Winsbergs, Winsberg of the right brother and The Bank claimed its to the business Siffermans, Winsberg premises by which owned the of the earlier default on virtue Building Winsberg Depart- Partnership assignment and from which loan and an ment Store A/C leased their business rents thereunder. Bank officials indicated premises. Winsbergs guaranteed provocation The all that the immediate for the loans, three and Bank officials testified foreclosure information that the Bank was they package indicating that looked at the loans as a had received that Academia deal. holding liquidate a December “fire sale” to large inventory at low amount of its primary question The in repre- loan prices. sented a note A/C to the Bank dated $340,000 Subsequently, representatives Dec. in the amount of (A/C note) Winsbergs Donnamay and due on face on October Bank refused the or premises 1986. The note was secured a lien Sifferman access to the to recover
any of the equipment by Complete, non-collateral and chase it called the school con- records, business personal proper- even change tacts and informed them of a ty. Winsbergs testified to several ownership of the business and if asked trips wasted Chicago during to which the they wanted to continue their business with reneged promises Bank had to allow officials, company. the new how- assets, them access to non-collateral includ- ever, testified that the Bank did not sell the ing patterns cutting the uniforms and Complete, non-collateral assets to but sim- the lists of school contacts which were es- ply arrangements regard made no to operation sential to continued patterns equipment belonging to Gauthier, vice-presi- business. Richard inventory Academia at the time it sold the Bank, dent of the that testified it refused premises. and leased the Winsbergs to allow Academia and the Complete Since the Bank’s sale to had recover their non-collateral assets for fear debt, entirely paid not off Academia’s they that property would also take lawsuit Bаnk initiated the Texas against, the bank asserted claims and that deficiency un- Academia for a due locking up premis- the Bank’s intent der the A/C note and foreclosure of the business, es was not to harm Academia’s security interest in Texas. Academia coun- protect the Bank’s interest that, agree- terclaimed based on an oral Nevertheless, collateral. this loss of use of note ment with the Bank that the A/C operation Chicago its entire business called the end of would not be before caused uniform Academia’s entire business season, selling Academia’s 1987 the Bank’s ruined. payment demand of full on October addition, Joseph Winsberg testified proper- its seizure of Academia’s during period Bank failed to this satisfy constituted ty to the indebtedness cooperate price to obtain a reasonable and a both a breach of contract breach its sale of the business assets it was hold- statutory duties of the common law collateral; ing buyers as he had found who good dealing. Academia also faith fair purchased would have the business for a converted the claimed that the Bank hаd price only reasonable if the bank had been debt, property satisfy seized willing portion to continue a of the loan. property effected a tor- that the seizure of *7 case, Winsberg that he had one testified existing tious interference with Academia’s already arranged the terms of a sale of the uniforms, supply school and contracts & business Sweet-Orr because agreement with its to sell these contracts busy with another deal it Sweet-Orr was third-party, & Addi- to a Sweet-Orr Co. postponed negotiations beginning at the of Winsberg, tionally, Joseph Ingrid and offi- January were never resumed after which in Academia and cers of and shareholders the Bank’s own sale of business. note, intervened in guarantors of the A/C Bank February of conducted lawsuit, adopting the claims of Acade- inventory for private a sale of Academia’s asserting also their own claims mia and $250,000 Company Complete to A Uniform Bank’s tortious conduct amounted that the Smith, (Complete), president, Mason whose negligent or infliction to either intentional primary competitor had with less been of emotional distress. relationship with the Wins- than amicable lengthy trial the case was sub- After a lawyer bergs. Halper, the Illinois Edward returned the follow- jury, mitted to a which time of default representing the Bank at findings: ing pertinent foreclosure, testified that the Bank’s and ex- A/C Uniform 1. Contract Claims. Complete was private sale of collateral original amount of ecuted a note in the commercially under the circum- reasonable $340,000 due on its face on October Chicago also leased the stances. agreement 1986, but there was an oral Complete, thereby which also premises to Winsberg that the Bank and Joe between machinery, equip- acquired patterns, fully re- to be the loan would not have there and school contacts located ment and selling sea- pur- paid until after A/C’s After the belonging to Academia. son. foreseeably 7.Deficiency. relied on the The Bank did not sell agreement resulting and suffered dam- collateral for A/C Uniforms note ages. breach, resulting The Bank’s in commercially in a reasonable manner. seizure and sale disposition or other of verdict, Based on the the trial court ren- property, proximately Academia’s caused judgment against dered final the Bank in destroyed. Academia to be ruined or following amounts: 2. Bad Faith. The Bank dealt unfair- $6,988,873.03,consisting of Academia— Academia, ly and in bad faith with proxi- $1,000,000 damages actual for tortious mately causing Academia to be ruined or $1,500,000 interference and for market destroyed. business, exemplary value of the dam- 3. Tortious Interference. The Bank $4,000,000, ages of and the rest inter- as willfully intentionally or interfered with est. Academia’s contracts or rela- business Joseph Winsberg $3,670,497.68, con- — private Chicago tions with in schools $1,500,000 sisting damages of actual area, proximately causing Academia to $1,500,000 past and for future emo- destroyed. be ruined or The Bank will- distress, exemplary damages tional fully intentionally interfered with $500,000, and the rest as interest. reasonably probable agree- Academia’s Ingrid Winsberg $2,613,665.12, con- ment to sell its A/C Uniform division to — sisting damages $1,000,000 of actual Sweet-Orr, proximately causing damage $1,000,000 past and for future emo- $1,000,000. to Academia of distress, exemplary damages tional 4. Emotional Distress. The Bank in- $500,000, and the rest as interest. tentionally, negligently, by its failure fairly good to deal in faith with Joe Ingrid Winsberg proximately Choice Law caused emotional distress to be suffered discussing points Before raised on
both.
appeal
they
as
relate to the individual
Damages.
5. Actual
At the time of
sounding
causes of action
both
contract
seizure,
the Bank’s
the fair market value
tort,
briefly
we will
discuss the
Academia, including
its Texas and
appropriate
apply
law to
to all causes of
$1,500,000,
operations,
Mexico
was
action.
$500,-
inventory
value of A/C’s
was
Concerning
sounding
the claims
records,
patterns,
and of its
business
contract,
the effect of a contract is to be
machinery
equipment Chicago
par
determined
intended
$400,000.
law
past
Total
and future emotion-
control,
specified in
ties to
damages
al distress
were assessed at
$3,000,000
$2,000,- valid choice of law clause. See Duncan v.
Winsberg
for Joe
*8
Co., 665
Ingrid
Cessna
S.W.2d
Winsberg.
000 for
Aircraft
(Tex.1984);
Building
Austin
Co. v. Na
Exemplary Damages.
Assessed in
Fire
tional Union
Insurance
$1,000,000
favor of Academia at
for bad
(Tex. 1968).
S.W.2d
The law of the
faith, $1,000,000for tortious interference
expressly agreed
par
state
to between the
contracts, $1,000,000
with the school
for
apрlied if there is a reasonable
ties will be
reasonably
interference with the
tortious
parties and the
relationship between the
Sweet-Orr,
probable agreement with
and
state,
the law of the chosen
chosen
and
$1,000,000
taking
for the
of Academia’s
contrary
poli
state is not
to a fundamental
leasehold,
records,
inventory, business
cy of this state.
v. Wackenhut
DeSantis
goodwill, patterns
equipment.
and
As-
(Tex.1988). Corp., $250,-
S.W.2d
Winsberg
sessed
favor
Joe
at
case,
$250,000
the
the note itself states that
faith,
000 for
for inflic-
bad
distress,
validity, construction and enforcement
in its
tion of emotional
and likewise
addition,
$250,000
governed by Illinois law. In
Ingrid Winsberg
for
are
favor of
appeal
faith,
$250,000
parties agreed at trial and on
infliction of both
bad
governed the construction
emotional distress.
that Illinois law
Co., 687
clearly
of the note.
Illinois
has a reason
er Warehouse and Transfer
(Tex.App.
relationship
parties as the state
S.W.2d
[14th
able
to the
— Houston
1985, writ);
Knops,
Knops
no
in which the Bank and A/C resided and Dist.]
cf.
(Tex.App.—San ton
S.W.2d
security
the
the note was locat
where
An
writ).
no
a court takes
io
When
Moreover,
parties
argue,
ed.
the
do not
laws, the
judicial notice of another state’s
nothing
suggest,
find
to
that Illi
we
knowledge of that
court then has the same
validity
nois’ rules of construction and
are
law.
Marsh v. Mill
law as of
own
contrary
policy
a fundamental
of Texas.
Cf.
ward,
(Tex.App.
S.W.2d
Thus,
agree
of the loan
— Austin
the construction
n.r.e.).
1964, writ ref’d
the note and its asso
represented by
ment
accordingly
security agreement
ciated
of which
question
Because the
governed by Illinois law.
applies is one of law for
state’s law
court,
as to
in the
indication
absence
tort,
sounding in
Concerning
claims
actually
court
state’s law the trial
which
however,
parties disagreed at trial and
applied,
presume that
the trial court
we
appeal
the trial court should
on
whether
significant contacts
correctly analyzed the
Academia,
law,
apply
as favored
Texas
involved,
of the relevant
judicial
took
notice
law,
by the Bank.
or Illinois
as favored
attention,
applied
brought
law
to its
trial,
by the
Before
there were discussions
according to
the correct
the established
law
parties
the court
attorneys for both
befоre
Nev
principles.
Keller v.
choice of law
See
concerning
applied
states’ law
(Tex.1985).
el,
699 S.W.2d
parties
of action. The
various causes
applied
should
agreed
Collins,
that Illinois law
583 S.W.2d
Gutierrez
note,
disagreed
the construction of the
(Tex.1979),
Supreme Court dis-
the Texas
remaining
delicti,
governing the
tort
about the law
lex loci
carded
traditional
resolving
concluded their
parties
claims. After the
wrong, approach
place of
actions,
it
arguments,
adopted
the court announced
of law in tort
conflicts
relationship”
significant
rule
this matter at a later time
test
would
the “most
However,
(Second)
mention is
the trial.
no further
145 of the Restatement
section
145(2)
(1971).
deci-
Section
in the record of the trial court’s
of Laws
made
Conflict
in fact
to be taken into consider-
state’s law the court
lists the contacts
sion or which
determining
which state has
various causes of action ation
applied to the
significant relationship to the occur-
most
sounding in toft.
respect to an
parties
rence and the
maintained that Texas
tort,
as follows:
issue
to the tort causes of action.
applied
law
occurred,
(a)
injury
place
where the
Bank, however,
through the vehicle
(b)
causing
place
the conduct
where
Summary Judgment,
Motion for
Plaintiff’s
occurred,
injury
all
applied
law
argued that
Illinois
residence,
(c)
domicile,
nationality,
action, requested the court to
causes of
place
incorporation
place
of busi-
law, and cited
judicial
take
notice of Illinois
parties,
ness
law on the various causes
to that state’s
(d)
relationship, if
place where the
Academia,
alleged by
in accordance
action
parties is centered.
any,
between
(repealed) and Tex.R.
with Tex.R.Civ.P. 184
*9
par
Having
319,
cited
some
Gutierrez,
202.
with
the
Civ.Evid.
583 S.W.2d
of the rele
ticularity
application
the Illinois
of
emphasized that
the
elements
Court
action,
placed
thus
relationship” analysis
the Bank
significant
vant causes of
the “most
court
before the trial
of contacts
sufficient information
not turn on the number
should
case,
apply
impor-
and
Illinois
more
judicially
any
for it to
notice
state has to the
choice
of those
principles
tantly
qualitative
the
of
thе
nature
law consistent with
on
Nevel,
for de-
699 S.W.2d
There is no set formula
Keller v.
contacts.
of law. See
particular
termining
significance
of
(Tex.1985); Ewing
Ewing,
v.
the
weighed
contact,
generally
must
be
470,
(Tex.App —CorpusChristi
which
S.W.2d
.
balanced
Growers,
case-by-case basis and
writ);
Inc. v. Palm
on a
1987, no
Cal
against
Nevertheless,
other such contacts.
Academia’s Contract Claims
once
significant
the
contacts
es
have been
point
By
first
of error
Bank com-
the
tablished,
question
the
of
law
which state’s
plains
Academia’s
that
breach
contract
apply
will
is one of law. Duncan v. Cess
agreement
claims based
an oral
are
(Tex.
414,
na
665 S.W.2d
Aircraft
merger
par-
the
and the
barred
doctrine
1984); Gutierrez,
Dallas Jones, 480, inventory through (Tex.Civ.App.— and reduce its 578 S.W.2d 484 low n.r.e.). 1979, Nothing letter sent to writ refd Corpus in this confirmation Christi however, Bank, suggests an inconsist- Academia next contends that particu- on the ency between the due date present agreement may oral still be contemplation, expressed note and the lar considered, vary to or contradict not letter, a in the of some continuation of note, construing it. but as an aid to Where parties relationship between the financial expressive complete a contract is not of parties’ contempla- beyond that date. understanding par agreement and of the relationship continuing of a financial tion ties, proceed consideration of antecedent rela- agreements made to foster that ings vary not the contract does serve tionship are not at all inconsistent terms of the exemplifies terms but note particular that a Bank’s insistence Further, agreement. all relevant evidence according to its terms. paid to determine whether be considered claim based on Academia’s contract complete agree particular writing is the agreement the oral is therefore of Loyola breach Lewis v. Uni parties. of the ment parol evidence rule. We 88, barred versity Chicago, 149 Ill.App.3d 102 of point of error. 47, (1 sustain the Bank’s first 425, 428, N.E.2d 50 Dist. Ill.Dec. 500 Lewis, instance, 1986). the court the Bank point of error By its twelfth year for a one found that a form contract estoppel cannot complains promissory that professor university teaching position as affirmative award. the basis of an form salary did not at a stated pathology of findings that Acade- The verdict includes agreement embody parties’ complete detri- Winsbergs relied to their and the mia not understanding as to whether or promise, and that ment on the Bank’s oral follow, extrinsic evi and that tenure would such re- have foreseen the Bank should to show the com should be allowed dence liance, ultimately appellees to caused parties on this plete understanding of the Appellees assert this lose their business. point. the value to recover an alternate basis as promis- theory their business under however, case, In the sory estoppel. unambiguously clearly and original note 30, 1986. specifies the due date as October eq an Promissory estoppel not come agreement that the note The oral prevent an indi invoked to uitable device buying season does the 1987 due until after change in by a being injured vidual from merely additional under an not amount an reliance on made in reasоnable position not embodied standing parties Board Verdeyen v. conduct. other’s note, directly contradicts the written Batavia, Ill.App.3d 150 Education of specifi courts have date. The Illinois due (2 N.E.2d 946 501 Ill.Dec. 103 vary agreements cally prior held that oral Dist.1986). promise which of a The breach are not due date on a note ing the clear binding, how as regard not the law does rule. parol evidence under the enforceable application of ever, does not warrant Chica Thomas v. First National See estoppel. promissory the doctrine 8, 24-25, 192, 89 Ill.Dec. go, Ill.App.3d Co., F.2d v. Fluor Distribution Evans Dist.1985); (1 1014, 1030-31 N.E.2d v. Sulli Cir.1986); Sinclair (7th Lincoln, Ill.Dec. at Land 31 Ill.2d van Chevrolet Bank, Main 383; see also at N.E.2d Haines, (1964); Ozier N.E.2d at 99. Ill.Dec. (1952); 485, 487 160, 103 N.E.2d 411 Ill. Drive-in, v. Mc Inc. Libby-Broadway Nevertheless, contends Inc., System, incom- Donald’s was made on the note the due date (1 Ill.Dec. subsequent writ- by a inconsistent plete or unavailable Dist.1979) estoppel (promissory by Winsberg sent letter ten confirmation unenforcea on contracts recover based accepted Bank, allegedly tacitly frauds). the statute ble under letter states confirmation Bank. The
293
Specifically,
parties
where the
any
ment was without
indication of the
completed contract,
enter into a
the court
parties.
duration intended
the
Rather
apply
not
promissory estoppel to dis
grant
than
the Bank absolute discretion to
regard
plain provisions
of that contract.
will,
terminate the line of credit at
Wanous,
See Barker-Lubin
v.Co.
26 Ill.
implied
court
good
obligation
faith
on the
151,
App.2d
(4 Dist.1960).1
Academia’s Tort Claims Ravenswood, 1207, F.Supp. 663 By eighteenth point its of error the Bank (N.D.Ill.1987) (simply having 1225 a bank complains that rеcog- Illinois law does not ing relationship give duty does not rise to a duty good nize a dealing faith and fair good dealing independent faith and fair independent as an cause of action in tort. contract); Gordon v. Matthew By through its fourteenth points fifteenth Co., Bender & 1286, F.Supp. 562 1289 challenges of error the Bank legal Sears, (N.D.Ill.1983); Harrison v. Roebuck sufficiency factual of the evidence to show Co., & 980, 494, Ill.App.3d 189 137 Ill.Dec. unfairly that it dealt and in bad faith with 502, 248, (4 Dist.1989); 546 N.E.2d 256 appellees. Co., Martin v. Federal Insurance 109 Life A good covenant of faith and 596, Ill.App.3d 143, 150, 65 Ill.Dec. 440 dealing implied fair in every as contract 998, (1 Dist.1982). Therefore, 1005 law, a matter of express absent an disa obligation no implied should be which is vowal. Good faith contracting between inconsistent with the terms of the contract parties requires one vested with contractu Sears, v. Harrison Roebuck & itself. al discretion to exercise it reasonably and 980, 494, 502, 189 Ill.App.3d 137 Ill.Dec. arbitrarily, not capriciously, or in a manner 248, (4 Dist.1989). 546 N.E.2d 256 inconsistent expecta with the reasonable Ferguson, Bane v. F.Supp. 988 Doebert, parties. tions of Vincent v. (N.D.Ill.1989), explained court 1081, Ill.App.3d 132 Ill.Dec. understanding duty gоod of the Illinois 856, (2 Dist.1989); 539 N.E.2d Dayan dealing faith and following fair Corp., McDonald’s 972, Ill.App.3d terms: 156, 169-70, Ill.Dec. 466 N.E.2d 971-72 duty applies overarching not in an (1 Dist.1984); Enterprises, Foster Inc. v. fashion, covering every aspect par- Germania Savings Federal and Loan As sociation, relationship, ties’ but rather it limits one Ill.App.3d 22, gives discretion where a contract party’s 308-09, (3 421 N.E.2d 1380-81 Dist. party that discretion. ... The Illi- 1981). agreement In a line of credit duty nois courts do not use the to over- indefinite duration between bank and bor rower, instance, parties’ expectations, come the unlike imply the law will good prevent duty part parties faith doctrines which of the bank to entering contracts, maintain the line for a into non-mutual con- reasonable time. Delp, See Carrico v. unconscionable, tracts are (4 public policy. Ill.Dec. which violate Were this Dist.1986). present case, good employ Unlike how court to faith doctrine ever, in Carrico the line of agree- improperly, destroying credit the court risks By comparison, explicitly (Tex.App. Texas courts have Antonio S.W.2d — San promissory estoppel held that n.r.e.); Joseph Mahonеy Corp., will not circum writ ref’d parol (Tex.Civ.App. vent the evidence rule. Stavert Properties, S.W.2d — Austin Hills, n.r.e.). Republicbank Inc. v. Northern writ ref’d
294 legitimate expectations par- of the tionship parties imper- between the would
ties, as
substituting
judgment
well as
its
missibly
beyond
extend the covenant
mere
for those who are better able to assess
definition or
modification of
terms of
positions.
their
security agreement.
the note and
Ba
See
chmeier,
1225; Gordon,
F.Supp.
at
562
Bane,
F.Supp.
(emphasis
at 994-95
1289; Harrison,
F.Supp. at
137 Ill.Dec. at
added).
256; Martin,
fair
as we
discussed
Dist.1985).
(3
Article 9 of
regard
promissory estoppel
claims. See
the Code defines the Bank’s duties with
Harrison,
137 Ill.Dec. at
at
546 N.E.2d
respect
provides rem
to that collateral and
256;
Barker-Lubin,
By twenty-first twenty-fourth its unjustified dant’s intentional and induce error, contract; (4) points twenty-sixth and ment of a breach of the error, twenty-ninth points respectively, subsequent party breach the third challenges legal wrongful the Bank and factual caused the defendant’s con duct; (5) sufficiency damages resulting of the evidence it from the to show that willfully, intentionally, maliciously Muhlenfeld, inter- 191 Ill. Dangeles breach. 815, 821-22, App.3d fered with Academia’s school contracts or (2 Dist.1989). 51-52 offsetting reasoned that action a bank’s case, however, the school plaintiff’s both con- checking debt his ac- tacts prospective and the sale Sweet-Orr dishonoring count and certain of his checks were not valid and enforceable conduct, contracts. did not show the Bank’s that even intended, wrongful, if as its or had The school contacts merely were a list of purpose, plaintiff’s to interfere with busi- clients with whom Academia had done busi- relations, ness it was instead ness in past reasonably expected “purely resulting *14 incidental interference do business the All of the future. rele- pursuit from the of the defendant’s own testimony vant at trial revealed that nei- 167, ends.” Id. at 66 Ill.Dec. 442 N.E.2d at ther any Academia nor schools the were contractually purchase bound to sell or the question year. uniforms in year from to addition, Illinois courts have stated Winsberg Joe testified the that schools tortious prospective that interference with approve year would certain companies each requires business relations some conduct from purchase which their could students party through directed toward a third their kept uniforms. a list of purposely which defendants cause that approve those that schools continued to party third enter into a not to or continue uniforms and would the contact schools prospective relаtionship contractual with yearly continuing approval solicit their to plaintiff. Magna Systems, v. McIntosh year. for the next Inc., 1185, (N.D.Ill. 539 F.Supp. 1192-93 1982); Service, DP Inc. v. AM Interna sale, The Sweet-Orr evident as is from tional, 162, (N.D.Ill.1981); F.Supp. 508 167 Winsberg their into letter admitted evi- 602, Kessler, Ill.App.3d 134 89 Galinski offer, support purchase dence to the 433, 437-38, 1176, Ill.Dec. 480 N.E.2d negotiation still at stage and had been (1 Dist.1985); Crinkley 1180-81 v. Dow Jones put on hold Sweet-Orr until it had com- Co., 869, 573, 67 Ill.App.3d 24 Ill.Dec. pleted occupy- other business transactions 714, Dist.1978); 581, (1 moreover, 385 N.E.2d 722 ing jury, specifi- its time. The cally Parkway City Trust only “reasonably probable a Bank and Co. v. found 400, 234, Darien, Ill.App.3d 2 Ill.Dec. agreement,” agree- rather than actual an (2 ment, 211, Dist.1976). with Sweet-Orr. N.E.2d question This whether the raises inter The elements the tort of a third “conduct” itself must be directed at prospective ference with business relations intended, party, merely possibly or (1) are: the existence of a valid business indirect, conduct, making of that “effects” plaintiffs ex relationship or reasonable party” a “conduct directed toward third entering pectancy of into a business valid emphasizing that simply way another (2) knowledge of relationship; dеfendant’s “purposely” interfere (3) the conduct must expectancy; relationship this or inten contact. court in party with the third inducing tional interference defendant that, though the suggests DP Service even relationship prevent or termination of was, or could have into defendant’s motive ing expectancy ripening from been, (4) damage party third business relationship; to interfere with valid business relations, plaintiff if has not act plaintiff result of shown as a the interference. third Muhlenfeld, Ill.App.3d directed toward the Dangeles v. defendant in- N.E.2d lie for party, 138 Ill.Dec. no action will intentional (2 Dist.1989). rela- prospective business terference with Id. at 168. tions. prospec interference with Tortious Furthermore, noted the court Galinski described as a tive business relations is with DP that it was accord Service’s tort. “purposely” committed con- requirement that interpretation of the Corp. Computer Network Continental party, and toward a third duct be directed Trust Bank and Illinois National suggestion that rejected appellant’s Ill.App.3d 442 N.E.2d 66 Ill.Dec. purpose instance, merely focuses on the (1 Dist.1982), requirement for the court Galinski, intеrference, of the defendant’s rather than re- misconduct. tortious seek of, to, 89 Ill.Dec. at N.E.2d 1180. covery trespass at for conversion Moreover, assets, also Galinski court noted non-collateral and under the Illinois require- provisions distinction between the Code Uniform Commercial disposition ments for tortious pro- wrongful interference with foreclosure and col- spective may business and those While the Bank’s relations lateral. actions business, tortious interference injury contractual have caused to Academia’s relationship, may may injury what- be shown con- Academia not cast merely preventing duct directed at attrac- ever form of action seem most plaintiff being position tive, per- regard in a without true nature Id., form the contract. 89 Ill.Dec. at the Bank’s conduct and the redress allowed 1181; see also Scholwin v. under Illinois law. Johnson, (1986). Other Claims Since *15 torts,
both
“purposely”
are
committed
the
of
Bank
By
point
its thirtieth
error the
by
distinction made
can
no
Galinski
have
Winsbergs
complains that the
stand-
lacked
requires
effect unless it
that the conduct
ing
By
to sue for emotional distress.
its
party
itself be directed at a
support
third
to
points
thirty-second through thirty-fourth
a cause of action for tortious interference
challenges
the
legal
of error
the
with prospective business relations.
the
sufficiency
factual
of
evidence to show
intentionally
that it
caused emotional dis-
case,
present
In the
although we
Winsbergs
negligent
the
or
tress to
was
can infer from the
that
evidence
the Bank
them,
dealings
any
its
with
or that
such
of
prospective
was aware Academia’s
busi
proximately
negligence
caused emotional
ness
with
relations
the schools and with
Winsbergs.
distress
Sweet-Orr, and that its actions
indi
would
destroy
relations,
rectly jeopardize or
those
by
corporation
injured
If a
only
the Bank’s conduct was directed
conduct,
party’s
corporation
prop
the
is the
against Academia and its business assets.
suit,
party
bring
er
to
shareholders
with,
There was no direct contact
or inter
by
corporation injured
the
virtue
the
involving,
par
ference
the relevant third
their
not
diminution
value of
shares
secondarily
ties. All of the Bank’s actions
losses,
directly
recover
for their
but are
pаrty
affected the third
business relations
if
compensated indirectly
corporation
the
only
they prevented
to the extent
that
replenished.
are
recovers because its assets
its
continuing
Academia from
business and
v.
Deca
Kennedy
First National Bank of
remaining
position
in a
to maintain those
236, 239,
tur,
Ill.App.3d
85 Ill.Dec.
129
relations. We hold that the evidence was
(4 Dist.1985);
also
473 N.E.2d
see
legally
factually
insufficient to show
Kush v. American States Insurance
any
Bank,
direct interference
the
(7th Cir.1988); Twohy
853 F.2d
was, therefore,
that
no
there
evidence un
Chicago,
National
First
Bank of
tort,
concept
support
der Illinois’
of that
to
(7th Cir.1985);
F.2d
Continen
or
findings
intentionally,
the Bank
National Bank & Trust Co. v.
tal Illinois
“purposely,” interfered with Academia’s
(N.D.Ill.
F.Supp.
Stanley,
schools
business relations
or with
1984). Specifically, in Kush the sharehold
twenty-
Sweet-Orr. We sustain the Bank’s
brought suit
corporation
er of an insured
first, twenty-fourth, twenty-sixth and twen
of emotional distress
infliction
ty-ninth points of error.
coverage to the
when it denied
the insurer
validity of
Thus,
rejecting
support
corporation.
find no
to
we
evidence
share
claim the
upon the
distress
judgment
Academia’s
on the theories
emotional
holder,
policyholder nor
case
was neither
which the
was tried. Academia
who
beneficiary,
appellate court
noted
sought to cast the
actions
terms
Bank’s
disregard the line
contract,
to
between
of the cove-
reluctance
breach of
breach
di
corporation
where
dealing,
faith
shareholder
good
nant of
and fair
rect duty
corporation
was owed
conditions alone are
The
not actionable.
allegedly
alone and the
tortious acts
only
were
law intervenes
when the distress in
only
Kush,
corporation.
directed
at the
so
flicted is
severe that no
man
reasonable
OPINION ON MOTION FOR the error where specifically appellant’s REHEARING addressed brief is inextricably so entwined with error another complains Academia on motion for re- one that cannot be mentioned without auto hearing this Court pre- that erred in its other, matically directing attention the to sumption trial applied that the court Illinois sufficiently the brief directs the court’s at to law the tort causes of In sup- action. Engineer tеntion to both. Consolidated port complaint, of this Academia also ing Co. Southern Steel 699 S.W.2d moves file a supplemental for leave to tran- (Tex.1985). case, the script showing the trial court’s order that complaints the raised the Bank’s brief applied Texas law be the tort causes of support that there no evidence was response action. The Bank admits tort causes action under Illinois law that the appli- trial court found Texas law inextricably entwined its com were However, cable to the tort actions. our that plaint the tort causes of action were presumption by no dispositive was means subject to Texas Illinois law rather than appeal of our application Illi- law. points. nois law to the Bank’s no evidence Although has first time Academia for the applied Whether trial court correct brought a trial this Court’s attention not, points law or Bank’s no evidence ruling part court which was not correctly argued applicability of Illinois record at of our the time October action, upon law to tort causes of relied opinion, ruling our such would not аffect complained Illinois cases Academia’s applicable decision Illinois law failure causes to establish various points determining Bank’s of error. law. action under Illinois Therefore, motion we overrule Academia’s deny file the rehearing leave to complains now supplemental transcript. the first not raise time that Bank did attacking the tri point specifically error KEYS, J., participating. not apply al court’s decision to Texas law the However, tort causes of action. we will
indulge of the brief a liberal construction
ing sufficiency rules in favor of
brief, we, give effect thereto if from an *18 under each
examination of the statement degree of
point, can determine with some
certainty complaint the nature of the raised point. Delta Rio Land Co. John LUCEY, Appellant, Charles son, (Tex.Civ.App.— S.W.2d n.r.e.); Corpus Christi writ ref’d Tex. TEXAS SOUTHEAST EMERGENCY R.App.P. clearly The Bank did raise its 74. ASSOCIATES, PHYSICIANS complaint law, Illinois rather than Tex Appellee. law, action applied to the tort causes of as concerning arguments by its extensive No. 08-90-00075-CV. applica Illinois and the applicability of law Texas, Appeals of Court of to the tion of Illinois law cases El Paso. action. Academia de tort causes of [Even com nature the Bank’s 1990. termined the Nov. joined appellate
plaint, its own brief as Jan. Rehearing Overruled argument Bank’s choice of law issue response Illinois law and cited sufficiency of challenges
Bank’s support the causes ac
evidence to tort
tion.]