Eads v. American Bank, N.A., 10-92-024-CV

• Decision Date: 25 November 1992
• Docket Number: No. 10-92-024-CV,10-92-024-CV
• Citation: 843 S.W.2d 208
• Parties: Sharon EADS, Appellant, v. AMERICAN BANK, N.A., et al., Appellees.
• Court: Texas Court of Appeals

Page 208

843 S.W.2d 208

Sharon EADS, Appellant, v. AMERICAN BANK, N.A., et al., Appellees.

No. 10-92-024-CV.

Court of Appeals of Texas Waco.

Nov. 25, 1992.

Jack N. Price, Austin, for appellant.

Damon L. Reed, Vance Dunnam, Dunnam & Dunnam, Waco, for appellees.

Before CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

Sharon Eads was employed by American National Bank of Waco in 1981 and was discharged in 1989. During the intervening years, she was promoted with commensurate increases in salary and American Bank merged with American National Bank to form American Bank, N.A. After being discharged, she sued the bank and M.N. Bostick and William C. Landiss, officers and directors of the bank, alleging a single cause of action for tortious interference with her employment relationship with the bank, actual damages, and exemplary damages. The bank asserted that the relationship was at-will and that it was entitled to discharge her at any time with or without cause. Bostick and Landiss asserted that they are not liable individually because each acted within the course and scope of his employment, that they enjoy a privilege as officers of the bank acting within the course and scope of their employment, and that their actions were taken in good faith on behalf of the bank and were therefore legally justified or excused. The defendants filed motions for summary judgment, attacking elements of Eads' cause of action and asserting that their affirmative defenses were established as a matter of law. Eads responded, but the defendants objected that her summary judgment proof contained hearsay and conclusions and that her deposition excerpts were not properly authenticated. The court granted a summary judgment in favor of all defendants.

Eads complains in a single point of error that the court erred in granting summary judgment because "legally cognizable fact issues of tortious interference with appellant's employment contract were raised by the summary judgment proof."

A defendant who moves for a summary judgment must show that no material issue of fact exists as to plaintiff's cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex.1983). A defendant who moves for a summary judgment without asserting an affirmative defense must disprove as a matter of law one or more of the elements essential to the plaintiff's cause of action. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). A defendant may establish an affirmative defense by proving all of the elements of the affirmative defense as a matter of law, demonstrating that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A summary judgment for a defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theory plead. Interstate Fire Ins. v. First Tape, Inc., 817 S.W.2d 142, 144 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

Eads' brief does not contend that her employment was not at-will nor that the bank had no right to terminate her employment. The brief recognizes that a corporate employee is privileged to interfere with his employer's contractual relationships with third parties as long as the interferer acts in good faith and believes that what he does is best for the corporation. See Maxey v. Citizens National Bank of Lubbock, 507 S.W.2d 722, 726 (Tex.1974). Thus, her argument is that a cause of action exists for tortious interference with an at-will employment contract; that officers of a corporation have a right to induce the corporation to violate a contractual obligation only if they act in good faith and with the belief that what they do is in the best interest of the corporation; and that the summary-judgment proof raises fact issues about Bostick's and Landiss' motives.

An at-will employment agreement can be the subject of a claim of tortious interference. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688 (Tex.1989). A cause of action for tortious interference with a contract is established upon a showing that (1) a contract existed between the plaintiff and a third party that was the subject of interference, (2) the defendant's act of interference was willful and intentional, (3) the intentional act of the defendant was a proximate cause of damage to the plaintiff, and (4) actual damage and loss to the plaintiff resulted. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991). However, one is privileged to interfere with a contract of another if it is done in the bona fide exercise of his own rights or if he has an equal or superior right in the subject matter to that of the plaintiff. Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex.1984). A claim of legal justification or excuse is an affirmative defense to a tortious-interference claim. Sterner, 767 S.W.2d at 690.

The bank could not tortiously interfere with its own contract. See Schoellkopf v. Pledger, 778 S.W.2d 897, 902 (Tex.App.--Dallas 1989, writ denied). Bostick and Landiss were officers and members of the board of directors--not strangers to the contract. See Gonzales v. Gutierrez, 694 S.W.2d 384, 388 (Tex.App.--San Antonio 1985, no writ). As such, they were privileged to interfere with the contract in the bona fide exercise of their own rights as directors and had an equal or superior right in the subject matter to Eads. See Sakowitz, Inc., 669 S.W.2d at 107.

Our only inquiry, then, is whether there is summary-judgment evidence that raises a fact issue about malice on the part of Bostick or Landiss.

The defendants objected to Eads' summary-judgment evidence on the grounds that it contained hearsay and conclusions and that her deposition excerpts were not properly authenticated. However, no order sustaining their objections appears in the record. We agree with the Dallas Court of Appeals that an order sustaining an objection to summary-judgment evidence must be reduced to writing, signed, and entered of record. Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 ...