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

• Decision Date: 18 March 1993
• Docket Number: No. 13-88-328-CV,CALLER-TIMES,13-88-328-CV
• Parties: PUBLISHING COMPANY, INC., Appellant, v. TRIAD COMMUNICATIONS, INC., d/b/a Wheels & Keels, Appellee.
• Court: Texas Court of Appeals

Page 18

855 S.W.2d 18

CALLER-TIMES PUBLISHING COMPANY, INC., Appellant, v. TRIAD COMMUNICATIONS, INC., d/b/a Wheels & Keels, Appellee.

No. 13-88-328-CV.

Court of Appeals of Texas,

Corpus Christi.

March 18, 1993.

Opinion Granting Rehearing in Part

May 13, 1993.

Rehearing Overruled June 7, 1993.

Jorge C. Rangel, Rangel & Chriss, Corpus Christi, Mike A. Hatchell, Ramey & Flock, Tyler, for appellant.

E. Landers Vickery, Arnold Anderson Vickery, Vickery & Kilbride, Houston, for appellee.

Before FEDERICO G. HINOJOSA, Jr., SEERDEN, and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Justice.

On remand from the Texas Supreme Court, Caller-Times Publishing Co. v. Triad Communications, Inc., 826 S.W.2d 576 (Tex.1991), we address appellant's points of error which challenge the legal and factual sufficiency of the evidence supporting the jury's finding that appellant tortiously interfered with appellee's contractual and business relationships. ¹ We reverse and remand.

For a statement of the facts, see Caller-Times Publishing Co. v. Triad Communications, Inc., 791 S.W.2d 163, 165-66 (Tex.App.--Corpus Christi 1990), rev'd, 826 S.W.2d 576 (Tex.1991). In this appeal, the parties primarily contest whether Caller-Times' actions were privileged as legitimate competition.

To prove tortious interference with contract, the plaintiff must prove that the defendant willfully and intentionally interfered with a contract, thus proximately causing the plaintiff actual damages. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991); Juliette Fowler Homes v. Welch Assoc., 793 S.W.2d 660, 664 (Tex.1990). To prove tortious interference with prospective contracts or business relationships, the plaintiff must prove that the defendant willfully and intentionally acted to prevent a contractual relationship that the plaintiff had a reasonable probability of realizing, thus proximately causing the plaintiff actual damages. Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.--Corpus Christi 1991, writ denied). Texas law protects existing as well as prospective contracts from interference. A terminable-at-will contract is valid until a party terminates it, and third parties may not tortiously interfere with it. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex.1989).

Not every act which interferes with another's contract relations is tortious. A party is privileged to interfere with another's contractual or business relations if 1) he does so in a bona fide exercise of his own rights or 2) his right to the subject matter is equal to or superior to that of the other party. Victoria Bank & Trust, 811 S.W.2d at 939; Sterner, 767 S.W.2d at 691; Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex.1984). "One may be 'privileged' to assert a claim 'even though that claim may be doubtful, so long as it asserted a colorable legal right.' " Victoria Bank & Trust, 811 S.W.2d at 939; Sakowitz, Inc., 669 S.W.2d at 107; Hardin v. Majors, 246 S.W. 100, 102 (Tex.Civ.App.--Amarillo 1923, no writ). The defense of legal justification or excuse only protects good faith assertions of legal rights. Victoria Bank & Trust, 811 S.W.2d at 939; Sakowitz, Inc., 669 S.W.2d at 107, 109.

The law affords competitors for the same business some freedom to compete for business which is previously subject to nothing more than a contract terminable at will. See, e.g., Times Herald Printing v. A. H. Belo Corp., 820 S.W.2d 206, 215-16 (Tex.App.--Houston [14th Dist.] 1991, no writ); RESTATEMENT (SECOND) OF TORTS § 768 (1979). A party may cause a third party to terminate a terminable-at-will contract with the party's competitor and may obtain the future benefits for the party's own competitive advantage by offering better contract terms or a higher price. Times Herald Printing, 820 S.W.2d at 215 (citing RESTATEMENT (SECOND) OF TORTS § 768 comment i).

RESTATEMENT (SECOND) OF TORTS § 768, "Competition as Proper or Improper Interference," provides:

1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other's relation if

a) the relation concerns a matter involved in the competition between the actor and the other and

b) the actor does not employ wrongful means and

c) his action does not create or continue an unlawful restraint of trade and

d) his purpose is at least in part to advance his interest in competing with the other.

2) The fact that one is a competitor of another for the business of a third person does not prevent his causing a breach of an existing contract with the other from being an improper interference if the contract is not terminable at will.

The "wrongful means" of § 768(1)(b) include physical violence, fraud, civil suits, and criminal prosecutions, but do not include persuasion or limited economic pressure. RESTATEMENT (SECOND) OF TORTS § 768 comment e. A party may refuse to deal with third persons in the business in which the parties compete because the third persons deal with the competitor; however, a party may not do so in order to establish or maintain an illegal monopoly. Id. One who refuses to deal with another in order to establish or maintain an illegal monopoly or for the same purposes intentionally causes third persons not to deal with the other is subject to liability to the other. RESTATEMENT (SECOND) OF TORTS § 768 comment f. Furthermore, the competitive means used must not run afoul of applicable state or federal antitrust legislation. Id. Therefore, when a party alleges tortious interference with prospective business relations which are the subject of competition, the party must show he suffered 1) actual damages 2) caused by 3) defendant's intentional acts 4) which interfered with 5) a reasonably probable business relationship and 6) which violated antitrust laws or caused third persons to refuse to deal with the party.

When we review the legal sufficiency of the evidence or a "no evidence" point, we consider only the evidence and reasonable inferences that tend to support the jury findings, and we disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). We overrule the point and uphold the finding if we find any evidence to support the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

When we review the factual sufficiency of the evidence, we consider and weigh all the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The jury, instructed that excuse or just cause may exist if the party sought to fairly compete in the marketplace, found that Caller-Times, exerting monopoly power over the relevant market, maliciously interfered with Triad's contractual or business relationships and that Caller-Times targeted Triad's customers and potential customers for special deals. The jury further found such interference to be a proximate cause of injury to Triad's business or property and found actual damages of $365,416.00.

The evidence supports the jury's finding that Caller-Times targeted Triad's customers for special deals. ² The evidence shows that Triad distributed its advertising circular, "Wheels and Keels," on Thursdays and that Caller-Times offered "Wheels and Keels" advertisers half-price rates for ads on Thursdays in the Caller-Times. Caller-Times presented testimony that the Thursday half-price rate was available to all automobile dealers who advertised with Caller-Times. However, Triad presented evidence that one automobile dealer in the Corpus Christi market, who did not advertise in "Wheels and Keels" but who spent $5,000 to $10,000 monthly advertising with Caller-Times, did not learn of the special offer directly from Caller-Times. Instead, that dealer's advertising agent learned of the deal from other sources and had to place a telephone call to the Caller-Times to obtain the half-price rate for his client. Triad also presented evidence that there was only one other dealer who did not do business with Triad who received the special Thursday rate. All other dealers who did not do business with Triad "chose" to pay the full rate for Thursday advertisements in Caller-Times. Triad also presented evidence that Caller-Times' advertising salespersons collected commissions on the number of lines of advertising they sold, suggesting that Caller-Times' salespersons would reasonably be expected to publish discounts to all potential customers in order to increase their commissions.

The jury may believe or disbelieve any or all of the testimony of any witness. Hipp v. J.D. Lowrie Well Service, Inc., 800 S.W.2d 668, 672 (Tex.App.--Corpus Christi 1990, writ denied). The jury could choose to disbelieve the testimony that Caller-Times offered the half-price deal to all of its customers, especially in light of the fact that a non-Triad customer had to learn of the special rate from an independent source and had to request it and that Caller-Times claimed that all but one other non-Triad customer "chose" to pay higher prices for the same services. After reviewing the record, we are unable to state that the jury's finding that Caller-Times targeted Triad's customers for special deals is so against the great weight and preponderance of the evidence that it is manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Triad produced evidence that one customer, Pagan-Lewis, had contracted to place ads in "Wheels and Keels" for six months. Nevertheless, Triad admitted...