Browning-Ferris, Inc. v. Reyna

• Decision Date: 26 August 1992
• Docket Number: BROWNING-FERRI,No. 04-90-00702-CV,INC,04-90-00702-CV
• Citation: 852 S.W.2d 540
• Parties: v. Louis REYNA and Stella Reyna d/b/a Condor Industries.
• Court: Texas Court of Appeals

Page 540

852 S.W.2d 540

BROWNING-FERRIS, INC. v. Louis REYNA and Stella Reyna d/b/a Condor Industries.

No. 04-90-00702-CV.

Court of Appeals of Texas San Antonio.

Aug. 26, 1992.

Rehearing Denied Nov. 24, 1992.

Sharon E. Callaway, Wallace B. Jefferson, Crofts, Callaway & Jefferson, Robert E. Valdez, Law Offices of Robert E. Valdez, San Antonio, for appellant.

Michael M. Fulton, Beckmann, Quirk & Fulton, San Antonio, for appellees.

Before CHAPA, BIERY and CARR, JJ.

OPINION

CARR, Justice.

This appeal is from a judgment in a tortious interference with a contract case involving appellant, Browning-Ferris, Inc. (BFI), and appellees, Louis Reyna and Stella Reyna d/b/a Condor Industries (Condor), both of which are in the street-cleaning business. Condor originally filed suit against BFI based on negligence arising from a rear-end collision on September 21, 1987, in which a BFI truck struck a Condor street-sweeping vehicle in San Antonio, Texas. Condor later added causes of action for tortious interference with a contract and conspiracy to tortiously interfere with a contract.

Regarding the causes of action involving the contracts, Condor specifically alleged the following: (1) BFI had tortiously interfered with Condor's San Antonio street-cleaning contracts with the Texas Department of Highways and Public Transportation (the Highway Department) by intentionally causing the rear-end collision; (2) BFI had tortiously interfered with Condor's Dallas street-cleaning contract with the Highway Department by vandalizing Condor's street-cleaning equipment during a break-in at Condor's Dallas equipment yard on August 29, 1988; (3) the intentional rear-end collision and the intentional destruction of Condor's Dallas equipment were part of a civil conspiracy by BFI which constituted a tortious interference with Condor's existing Dallas and San Antonio contracts with the Highway Department.

Condor further alleged that as a result of the intentional destruction of Condor's Dallas equipment, the following events occurred in consequential order: (1) Condor could not timely perform the Dallas contract; (2) Condor defaulted on the Dallas contract; (3) the Highway Department made a claim on Condor's performance bond; (4) Condor could not obtain additional performance bonds; (5) Condor could not bid on any other Highway Department street-cleaning contracts requiring bonding; and (6) Condor could not compete with BFI.

Prior to the submission of the case to the jury, the trial court granted BFI a directed verdict on Condor's civil conspiracy cause of action because the trial court found that no evidence of conspiracy existed. The trial court then submitted the case to the jury on the negligence and tortious interference with a contract causes of action.

The jury found that BFI's negligence proximately caused the rear-end collision. It awarded Condor $30,300 for repairs to the sweeper and $11,500 for the loss of the use of the sweeper. The jury further found that BFI, acting through its employees or agents in the course and scope of their employment, tortiously interfered with Condor's Dallas street-cleaning contract with the Highway Department. Based on this finding, the jury awarded Condor $238,000 in past lost profits and $559,000 in future lost profits. The trial court subsequently entered judgment in accordance with these findings. ¹

The issues this appeal presents are:

(1) Whether the trial court improperly allowed Reyna's expert witness, Mark Krivacka, to testify at trial on damages because he had not been properly designated as an expert witness due to a lack of verification on Reyna's discovery supplementation (point one);

(2) Whether there is sufficient evidence to support the jury's finding that BFI's agents or employees, acting in the course and scope of their employment, tortiously interfered in Reyna's performance of its Dallas contract with the Highway Department (points two through four); and

(3) Whether the damages awarded for tortious interference were (a) improper in view of the liability issue evidenced by the jury (point five); (b) established with reasonable certainty (point six); (c) supported by factually sufficient evidence (point seven); and (d) excessive (point eight).

In the first point of error, BFI contends that the trial court erred in allowing Condor's expert witness, Mark Krivacka, to testify at trial on damages. According to BFI, Krivacka had not been properly designated as an expert witness because Condor did not verify the discovery supplementation.

The record reflects that thirty-one days prior to trial, Condor supplemented its previous answers to BFI's interrogatories regarding experts Condor anticipated to call at trial. Condor noticed BFI via unsworn letter that it expected to call Mark Krivacka. Condor also provided BFI with the other information regarding Krivacka that is required to be given under Tex.R.Civ.P. 166b(6). When Condor called Krivacka to testify at trial, BFI objected on the basis that Krivacka had never been properly designated as an expert witness because Condor's supplementation letter had not been verified. The trial court overruled BFI's objection and allowed Krivacka to testify. BFI contends the trial court erred. We disagree.

A verification of a written and timely supplementation of answers to interrogatories is neither necessary nor required by Tex.R.Civ.P. 166b(6). Jones v. Kinder, 807 S.W.2d 868, 872 (Tex.App.--Amarillo 1991, no writ). In addition, the general rule is that any error in the admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); City of San Antonio v. Vela, 762 S.W.2d 314, 317-18 (Tex.App.--San Antonio 1988, writ denied).

The record reflects that Condor offered its Exhibit 38 as follows:

Mr. Fulton: All right, your Honor, I'll offer Plaintiff's Exhibit No. 38 as a summary of his [Krivacka's] testimony.

(Emphasis added.) To the above statement, BFI's counsel replied: "No objection, Judge." This exhibit is a chart completely summarizing Krivacka's testimony. In effect, the exhibit was a reoffer of Krivacka's testimony. It includes a summary, year by year, of the history of Condor's gross revenues and net operating profits from 1983 through 1989 and a projection of the total lost profits. The exhibit also contains a graph of Condor's net operating profit showing the rapid growth rate prior to 1988 and the profit crash in 1988, after the default on the Dallas contract. In addition, BFI offered Exhibits 4, 5, 6, and 7, which are the Reynas' tax returns and financial statements for 1987 and 1988. These exhibits demonstrate the Reynas' prior earning power. The introduction of this evidence by BFI as well as BFI's statement of "no objection" to Plaintiff's Exhibit 38 makes any error regarding the admission of Krivacka's testimony harmless.

BFI's first point is overruled.

In BFI's points two, three, and four we are asked to decide whether any evidence exists to support the jury's finding that an employee and/or agent of BFI, acting within the course and scope of his employment or authority, committed an act of tortious interference with Condor's Dallas contract (point two); whether any evidence exists that an employee and/or agent of BFI "intentionally and willfully" interfered with Condor's Dallas contract (point three); and whether the evidence is legally and factually sufficient to support a judgment based upon tortious interference with a contract.

In addressing a "no evidence" (legal sufficiency) point, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). When reviewing an insufficient evidence (factual sufficiency) point, however, we consider and weigh all the evidence; we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). In addition, we may not simply substitute our conclusions for that of the trier of fact. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Texas law protects existing and prospective contracts from interference. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 665 (Tex.1990). The elements of a cause of action for tortious interference with an existing contract are: (1) a contract subject to interference; (2) a willful and intentional act of interference; and (3) the occurrence of actual damages or loss proximately caused by the intentional act. Id.; Champion v. Wright, 740 S.W.2d 848, 853 (Tex.App.--San Antonio 1987, writ denied).

In the instant case, the following issue was submitted to the jury without objection as Question Number 4:

Did Browning-Ferris, Inc. acting through its employees and/or agents in the course and scope of their employment tortiously interfere in Louis Reyna and Stella Reyna, d/b/a Condor Industries' performance of its contract with the Texas Department of Highways and Public Transportation in Dallas?

The record reflects that the jury answered the question affirmatively. Because no objection was made regarding this jury submission, we will accept it as a proper statement under the facts of the case. See Texas & New Orleans R.R. Co. v. Barnhouse, 293 S.W.2d 261, 264 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e.) (court accepted definition in charge that was not criticized in any point of error); Casas v. Knorbin, 218 S.W.2d 289, 291 (Tex.Civ.App.--Galveston 1949, no writ) (no objection made to definition in charge). We will therefore review the evidence in light of the issue given.

Our review of the entire record reflects that Condor attempted to...