Levine v. First Nat. Bank of Eagle Pass

• Decision Date: 05 March 1986
• Docket Number: No. 04-85-00154-CV,04-85-00154-CV
• Citation: 706 S.W.2d 749
• Parties: Mrs. Ben LEVINE, Appellant, v. FIRST NATIONAL BANK OF EAGLE PASS, Appellee.
• Court: Texas Court of Appeals

Page 749

706 S.W.2d 749

Mrs. Ben LEVINE, Appellant, v. FIRST NATIONAL BANK OF EAGLE PASS, Appellee.

No. 04-85-00154-CV.

Court of Appeals of Texas,

San Antonio.

March 5, 1986.

Rehearing Denied April 8, 1986.

Arnold L. Levey, David L. Willis, San Antonio, for appellant.

John W. Claybrook, Eagle Pass, for appellee.

Before ESQUIVEL, CANTU and DIAL, JJ.

CANTU, Justice.

OPINION

This is an appeal from an order of dismissal entered by the trial court on February 12, 1985, dismissing an action filed by Mrs. Ben Levine, the appellant and plaintiff below, after sustaining a plea of limitations raised by the appellee, the First National Bank of Eagle Pass (Bank).

Levine applied for a Small Business Association loan in August 1979, but was denied the loan when the Bank issued a negative credit report. Levine reapplied for the loan, omitting the Bank as a reference, and subsequently received the loan. Levine filed suit against the Bank and alleged in her original petition that she was informed by the Small Business Association (SBA) that the Bank gave a negative credit reference even though Levine had a good credit history. Levine further alleged that her husband had had a dispute in 1978 with one of the Bank's officers, which was unrelated to Levine's loan application or any bank business.

The petition alleged that the Bank's actions were "willful and malicious and intentionally done to harm and injure [Levine's] credit standing." Levine maintains that this language states a cause of action for tortious and wrongful interference with business relations. Levine sought damages resulting from the delay in the approval of the SBA loan, and exemplary damages because of the allegedly willful and malicious nature of the Bank's actions. Levine's petition was filed on January 25, 1983.

The Bank answered, asserting that the facts alleged by Levine showed a cause of action, if any, which arose more than two years prior to filing of the suit. Thus, the Bank pled the statute of limitations as a bar to Levine's actions.

In its pre-trial brief to the trial court, the Bank argued that the Federal Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., concerning the issuance of credit reports, provided the only basis upon which Levine could bring suit. This statute prescribes a two year limitation period commencing after a misrepresentation is discovered.

Levine, however, argued that the action was for tortious interference with business relations, which she alleged to have a four year statute of limitations. The trial court dismissed Levine's suit with prejudice, finding that:

Such cause of action, if any, as Plaintiff may have had against Defendant by reason of the facts alleged in Plaintiff's pleadings accrued more than two (2) years before this case was filed on January 25, 1983, and had become barred by the applicable statute of limitations prior to the filing of said cause ...

The sole point of error raised by Levine on this appeal is alleged error by the trial court in dismissing the cause of action based upon TEX.REV.CIV.STAT.ANN. art. 5526, the two year statute of limitation. Levine argues that article 5529, or alternatively article 5527, both of which are four year limitation statutes, control in an action for wrongful interference with business relations.

To establish a cause of action for tortious interference with business or prospective contractual relations, the plaintiff must show:

1. A reasonable probability that the parties would enter into a contractual relationship;

2. that the defendant acted maliciously by intentionally preventing the relationship from occurring with the purpose of harming the plaintiff;

3. the defendant was not privileged or justified; and

4. actual harm or damage occurred as a result of the interference.

Verkin v. Melroy, 699 F.2d 729 (5th Cir.1983); see also Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952 (5th Cir.1975); CF & I Steel Corp. v. Pete Sublett & Co., 623 S.W.2d 709 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.).

Levine's original petition alleged each of these elements necessary to support a cause of action for tortious interference. That Levine may also have alleged the elements required in an action under the Fair Credit Reporting Act, which would be barred under that statute's two year limitation period, does not preempt an action for tortious interference. As Levine alleged the elements necessary to raise a claim of tortious interference, the question before us concerns the limitation period applicable to the cause asserted.

TEX.REV.CIV.STAT.ANN. art. 5529 (Vernon 1958) ¹ provides in pertinent part:

Every action ... for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring same shall have accrued and not afterward.

Article 5529, then, applies in those situations not subject to limitation periods prescribed in other statutes. Therefore, we must examine those statutes which may be relevant to an action for tortious interference, to determine if they apply to Levine's suit.

Article 5524 establishes a one year limitation period for actions involving malicious prosecution or for injuries to one's character or reputation by libel or slander. Levine did not allege that the negative credit report issued by the Bank harmed either her personal reputation or her business' reputation, nor did she seek damages for such injury. Rather, Levine is seeking to recover for business losses resulting from the Bank's actions. Thus, the primary gravamen of Levine's cause is not libel or slander. Therefore, the one year limitation period of article 5524 is inapplicable. Brown v. American Freehold Land...