Bonham v. Flach

• Decision Date: 27 January 1988
• Docket Number: No. 04-87-00363-CV,04-87-00363-CV
• Citation: 744 S.W.2d 690
• Parties: Sydney BONHAM and Ward Fairchild, Appellants, v. David C. FLACH, Appellee.
• Court: Texas Court of Appeals

Page 690

744 S.W.2d 690

Sydney BONHAM and Ward Fairchild, Appellants, v. David C. FLACH, Appellee.

No. 04-87-00363-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 27, 1988.

William Keaton Blackburn, Junction, for appellants.

Edwin H. White, Rocksprings, for appellee.

Before BUTTS, REEVES, and CHAPA, JJ.

CHAPA, Justice.

This suit arises out of the termination of employment of appellee, David C. Flach, from the Edwards County, Texas, road department.

Appellee brought suit against:

a) Neville G. Smart, Jr., individually and as County Judge of Edwards County, Texas;

b) Tony Villarreal, individually and as Commissioner of Precinct No. 1, Edwards County, Texas;

c) Gene Borchardt, individually and as Commissioner of Precinct No. 2, Edwards County, Texas d) Sidney Bonham, individually and as Commissioner of Precinct No. 3, Edwards County, Texas;

e) Bill Mitchell, individually and as Commissioner of Precinct No. 4, Edwards County, Texas;

f) Ward Fairchild, individually and as county road superintendent of Edwards County, Texas; and

g) Edwards County, Texas.

All of the defendants with the exception of Bonham, Fairchild, and Edwards County, Texas were dismissed prior to the case being submitted to the jury.

Although various causes of action are alleged in the pleadings, the basic cause of action is tortious interference with appellee's contract of employment with the county road department. The jury findings were favorable to appellee. The jury found actual damages in the amount of $3,300.00; that Fairchild acted maliciously and awarded $3,500.00 in exemplary damages against him; that Bonham acted maliciously and awarded $10,000.00 in exemplary damages against her; and granted appellee $8,600.00 in attorney's fees. However, the trial court granted Edwards County, Texas a non obstante veredicto judgment based upon the doctrine of sovereign immunity. After granting a motion to disregard the jury finding on attorney's fees, the court entered judgment against appellants Fairchild and Bonham, who have perfected this appeal.

The issues before this court are that:

1) the trial court erred in overruling the motion for instructed verdict and non obstante veredicto because there was no evidence that Fairchild and Bonham acted in their individual capacity;

2) the record contains no evidence or insufficient evidence to sustain the verdict against Fairchild and Bonham in their individual capacity;

3) the record contains no evidence or insufficient evidence to sustain the verdict against Fairchild and Bonham as to exemplary damages.

Appellee has cross-assigned error in connection with attorney's fees.

Appellants' initial complaint is that the court erred in not granting an instructed verdict or a non obstante veredicto judgment in favor of Fairchild and Bonham.

In an instructed case, our task is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Upon review, we must consider all of the evidence in its most favorable light in support of the plaintiff's position and discard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

Henderson v. Travelers Insurance Company, 544 S.W.2d 649, 650 (Tex.1976). A motion for judgment non obstante veredicto should be granted only when a directed verdict would have been proper. TEX.R.CIV.PROC. 301.

In acting on the motion, all evidence must be considered in a light most favorable to support the jury verdict, and 'every reasonable intendment deducible from the evidence' is to be indulged in favor of the verdict. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). Only the evidence and inferences therefrom that support the jury finding should be considered, with all contrary evidence and inferences being rejected. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

Dodd v. Texas Farm Products Company, 576 S.W.2d 812, 814 (Tex.1979).

In the motions for instructed verdict and judgment non obstante veredicto, appellants argued that they were acting in an official capacity when they discharged appellee, and they therefore enjoy official immunity. Bagg v. University of Texas Medical Branch at Galveston, 726 S.W.2d 582, 586 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Kelly v. Galveston County, 520 S.W.2d 507, 513 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ). However, official immunity only shields persons from suits complaining of official acts. Persons can still be sued in their individual capacities for wrongful unofficial acts. Bagg v. University of Texas Medical Branch of Galveston, 726 S.W.2d at 586. Therefore, the question before this court is whether there is evidence of probative force in the record that appellants committed acts in discharging appellee which could not have been within the scope of their official duties.

Kelly v. Galveston County, involved a summary judgment granted by the trial court in favor of the defendant public officials. In reversing, the court of appeals held that the summary judgment was not proper since plaintiff alleged a conspiracy on the part of the public officials to have plaintiff dismissed, actions which exceeded the legitimate bounds of their office, and the public officials did not sufficiently controvert the allegation in their summary judgment evidence.

The evidence in the record, considered in the light most favorable to the verdict, which tends to support a conspiracy between Fairchild and Bonham to cause appellee's dismissal is:

1) that Fairchild's immediate supervisor was Bonham;

2) that Fairchild and Bonham worked together and consulted often;

3) that Fairchild and Bonham disliked Flach;

4) that both Fairchild and Flach applied for the job of road superintendent;

5) that Bonham nominated Fairchild for the position and opposed Flach;

6) that before the Commissioners Court, Bonham failed to fully disclose all the facts pertaining to an incident involving Flach and his qualifications for road superintendent;

7) that Fairchild was appointed road superintendent on October 15, 1985;

8) that on October 29, 1985, Fairchild and Bonham, without authority to discharge Flach, prepared a letter purporting to terminate Flach's employment, citing reasons which did not constitute "just cause";

9) that on November 15, 1985, the Commissioners Court upheld the firing of Flach.

The point is overruled.

In the next point, appellants contend the record contains no evidence or insufficient evidence to sustain the verdict. Specifically, appellant argue that there is no evidence or insufficient evidence which establishes that they individually tortiously interfered with appellee's contract of employment.

To maintain a cause of action for tortious interference with a contract, it must be established that 1) there was a contract subject to interference, 2) the act of interference was willful and intentional, 3) such intentional act was a proximate cause of plaintiff's damages, and 4) actual damage or loss occurred. Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.--El Paso 1977, writ ref'd n.r.e.).

In determining a no evidence point, appellate courts consider only the evidence supporting the jury's finding in its most favorable aspect and give effect to all reasonable inferences which may be properly drawn therefrom. In determining factually insufficient evidence points such courts consider the evidence supporting the jury finding and determine whether its probative effect is of sufficient strength to support the finding. And further, in determining factual insufficiency all evidence will be considered by courts of appeals to determine whether the jury's finding is so contrary to the great weight and preponderance of the evidence as to be unjust. Dolenz v. Continental National Bank of Fort Worth, 620 S.W.2d 572, 576 (Tex.1981); Elliot v. Great National Life Insurance Co., 611 S.W.2d 620, 621 (Tex.1981);...