Rtlc Ag Products v. Treatment Equipment Co.

• Decision Date: 27 June 2006
• Docket Number: No. 05-05-00872-CV.,05-05-00872-CV.
• Citation: 195 S.W.3d 824
• Parties: RTLC AG PRODUCTS, INC., d/b/a RTLC Piping Products, Appellant v. TREATMENT EQUIPMENT COMPANY and Municipal Valve & Equipment Company, Inc., Appellees.
• Court: Texas Court of Appeals

195 S.W.3d 824

RTLC AG PRODUCTS, INC., d/b/a RTLC Piping Products, Appellant v. TREATMENT EQUIPMENT COMPANY and Municipal Valve & Equipment Company, Inc., Appellees.

No. 05-05-00872-CV.

Court of Appeals of Texas, Dallas.

June 27, 2006.

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John E. Agnew, Burleson, Pate & Gibson, L.L.P., Dallas, for appellant.

Scott V. Siddons, Griffith & Nixon, P.C., Gary Kessler, Dallas, for appellee.

Before Justices WRIGHT, MOSELEY, and LANG.

OPINION

Opinion by Justice LANG.

Appellant, RTLC AG Products, Inc., d/b/a RTLC Piping Products sued Treatment Equipment Company and Municipal Valve & Equipment Company, Inc., appellees, for damages and injunctive relief for violations of the Texas Free Enterprise and Antitrust Act of 1983, intentional interference with prospective economic advantage, unfair competition, and conspiracy. In its sole issue on appeal, RTLC argues the trial court erred when it: (1) granted no-evidence summary judgments in favor of Treatment Equipment and Municipal Valve; and (2) denied its motion for reconsideration of the trial court's summary judgment in favor of Treatment Equipment. In cross points, both Treatment Equipment and Municipal Valve argue the trial court erred when it overruled their objections to the affidavits of Billy Terrell, the president of RTLC, which were attached to RTLC's responses to both Treatment Equipment's and Municipal Valve's motions for no-evidence summary judgment.

Considering all of the evidence presented by RTLC, including the affidavits of Terrell to which Treatment Equipment and Municipal Valve objected, we conclude the trial court did not err when it granted no-evidence summary judgments in favor of Treatment Equipment and Municipal Valve. Accordingly, we need not consider Treatment Equipment and Municipal Valve's cross points claiming the trial court erred when it overruled their objections to Terrell's affidavits. Further, RTLC's complaint that the trial court erred when it denied its motion for reconsideration is waived because RTLC does not cite to authority or address the issue in the argument portion of its brief. The trial court's summary judgments are affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dallas County, along with fifteen other counties, is a member of the North Texas Council of Governments, which has adopted uniform specifications for water and waste water treatment facilities, including specifications for fabricated steel and stainless steel pipe. The competing suppliers of the specified fabricated steel and stainless steel pipe do not offer it by brand name. RTLC is a supplier of the specified fabricated steel and stainless steel pipe. The North Texas Council of Governments has also adopted specifications requiring Leopold filters and K-Flow and M & H butterfly valves. In the North Texas area, Treatment Equipment is the representative of the Leopold filters and Municipal Valve is the representative of the K-Flow and M & H butterfly valves.

The City of Dallas sought bids on the Bachman Water Treatment Plant filter improvements project based on the plans and specifications it provided. Prior to bidding on the Bachman project, Treatment Equipment, Municipal Valve, and Piping Systems, Inc., agreed to submit a bid that packaged Treatment Equipment's Leopold filters and Municipal Valve's K-Flow and M & H butterfly valves with Piping Systems's fabricated steel and stainless steel pipe. The packaged bid in the amount of $8,383,390 was submitted to Cajun Constructors, Inc., and Archer-Western Contractors, Ltd., the general contractors bidding on the Bachman project. RTLC also submitted a bid, which offered to supply the fabricated steel and stainless steel pipe for $1,069,000, to Cajun Constructors. Cajun Constructors and Archer-Western accepted the packaged bid and included it in their overall bids to the City of Dallas. The City of Dallas accepted Cajun Constructors's bid.

RTLC sued Treatment Equipment, Municipal Valve, Piping Systems, Inc., Jack S. Dovenbarger d/b/a Manufactured Valve Products, and Valve & Equipment Corporation for damages and injunctive relief for violations of the Texas Free Enterprise and Antitrust Act of 1983, intentional interference with prospective economic advantage, unfair competition, and conspiracy. Treatment Equipment and Municipal Valve each filed general denials and asserted affirmative defenses.

On January 11, 2005, Treatment Equipment filed a motion for no-evidence summary judgment on RTLC's claims. RTLC responded to Treatment Equipment's motion for no-evidence summary judgment and produced Terrell's affidavit, which it claimed raised an issue of material fact. Treatment Equipment objected to the affidavit. On March 11, 2005, the trial court overruled Treatment Equipment's objections, but granted its motion for no-evidence summary judgment. Meanwhile, Piping Systems was dismissed from RTLC's lawsuit.

On March 23, 2005, Municipal Valve filed a motion for no-evidence summary judgment. RTLC responded to Municipal Valve's motion for no-evidence summary judgment and attached a second affidavit by Terrell, portions of the deposition testimony of Treatment Equipment's president, Bruce S. Smith, Municipal Valve's principal owner and president, David Lee Goodwin, and Cajun Constructors's senior estimator, Jimmy Dale Smith. Municipal Valve objected to Terrell's affidavit. Also, RTLC filed a motion for reconsideration of the no-evidence summary judgment in favor of Treatment Equipment. On May 23, 2005, the trial court granted Municipal Valve's motion for no-evidence summary judgment and denied RTLC's motion for reconsideration of the no-evidence summary judgment in favor of Treatment Equipment. After the trial court entered the no-evidence summary judgments, RTLC nonsuited Manufactured Valve Products and Valve & Equipment Corporation.

II. NO-EVIDENCE SUMMARY JUDGMENT

RTLC argues the trial court erred when it granted no-evidence summary judgments in favor of Treatment Equipment and Municipal Valve because RTLC raised more than a scintilla of evidence to prove: (1) Treatment Equipment and Municipal Valve's packaging of generic pipe with their sole source filters and valves to general contractors bidding on water and waste water treatment projects in the North Texas market had a substantial adverse competitive impact on other pipe suppliers' attempts to offer to sell the same generic pipe to the same general contractors; and (2) Treatment Equipment and Municipal Valve's packaging of generic pipe with their sole source filters and valves to general contractors bidding on waste water treatment projects in the North Texas market caused RTLC to suffer damages. Treatment Equipment and Municipal Valve respond that RTLC failed to come forward with evidence of an antitrust injury or its other causes of action.

A. Standard of Review

The same legal sufficiency standard of review that is applied when reviewing a directed verdict is also applied when reviewing a no-evidence summary judgment. See Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). When reviewing a no-evidence summary judgment, an appellate court must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833. An appellate court reviews a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See Wal-Mart, Stores Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)). A reviewing court views all of the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregards all contrary evidence and inferences. See Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex.1997); see also Gen. Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See Gen. Mills, 12 S.W.3d at 833. More than a scintilla of evidence exits when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." See Merrell Dow, 953 S.W.2d at 711.

B. Applicable Law

After an adequate time for discovery, a party may move for summary judgment under Texas Rule of Civil Procedure 166a(i) on the ground that no evidence exists to support: (1) one or more essential elements of a claim; or (2) a defense which an adverse party has the burden to prove at trial. TEX.R. CIV. P. 166a(i); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). In a no-evidence summary judgment, the movant does not bear the burden of establishing each element of his claim or defense. Gen. Mills, 12 S.W.3d at 833. Rather, the nonmovant assumes the burden to present enough evidence to raise a genuine issue of material fact showing that he is entitled to a trial. See id. The trial court must grant the motion for no-evidence summary judgment unless the nonmovant produces more than a scintilla of evidence that raises a genuine issue of material fact on the challenged elements. TEX.R. CIV. P. 166a(i); see Gen. Mills, 12 S.W.3d at 832-33.

The Texas Free Enterprise and Antitrust Act states that its purpose is to maintain and promote economic competition in trade and commerce, and to provide the benefits of that competition to Texas consumers. See TEX. BUS. & COM.CODE ANN. § 15.04 (Vernon 2002). Antitrust laws protect competition, not competitors, and ultimately, the consumer is the beneficiary. See Atlantic Richfield Co. v. USA Petrol. Co., 495 U.S. 328, 338, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990); Roy B. Taylor Sales, Inc. v. Hollymatic Corp., 28 F.3d 1379, 1382 (5th Cir.1994). The provisions of the Texas Free Enterprise and Antitrust Act are...