Schoellkopf v. Pledger

• Decision Date: 25 August 1989
• Docket Number: No. 05-86-00283-CV,05-86-00283-CV
• Parties: Hugo W. SCHOELLKOPF, Jr., and Caroline Rose Hunt, Appellants, v. L.R. PLEDGER, Appellee.
• Court: Texas Court of Appeals

Page 897

778 S.W.2d 897

Hugo W. SCHOELLKOPF, Jr., and Caroline Rose Hunt, Appellants, v. L.R. PLEDGER, Appellee.

No. 05-86-00283-CV.

Court of Appeals of Texas Dallas.

Aug. 25, 1989.

Rehearing Denied Oct. 13, 1989.

Ernest R. Higginbotham, P. Michael Jung, John H. McDowell, Dallas, for appellants.

Mark S. Werbner, Dallas, for appellee.

Before WHITHAM, ROWE and WHITTINGTON, JJ.

ON REMAND FROM THE SUPREME COURT

WHITTINGTON, Justice.

This cause is before us on remand from the Supreme Court of Texas. L.R. Pledger ¹ cross-claimed for damages against Caroline Rose Hunt and Hugo Schoellkopf ² which he alleged were caused by their tortious conduct against Midway Air, Inc., of which he was a shareholder. In our original opinion, we held that Pledger may not recover for torts committed against Midway. Schoellkopf v. Pledger, 739 S.W.2d 914 (Tex.App.--Dallas 1987). The Supreme Court reversed our opinion, and remanded the cause to us for considerations of the points we had not addressed. Pledger v. Schoellkopf, 762 S.W.2d 145 (1988). We again reverse the judgment of the trial court and render a take nothing judgment.

This case involves the tenants and their leases at an airplane hangar in Addison, Texas. ³ The tenants were Midway Aircraft Sales, Inc., Flight Electronics, Inc., and C & C Aircraft Services, Inc. We begin our recitation of facts in September 1980. At that time the hangar was owned by Cree Ventures, Inc.; Midway was owned by L.R. Pledger, Conald Cox, and Wayne Williams; and C & C was owned by Cox. Midway pursuant to its lease with Cree Ventures, had the exclusive right to sell airplanes from the hangar. Then, in chronological order, the following occurred:

March 13, 1981: The Schoellkopfs buy C & C from Cox.

Mar 15, 1981: The Schoellkopfs apply for a Cessna dealership with the apparent intent to sell airplanes from C & C's space in a hangar owned by Cree Ventures.

June or July 1981: The Schoellkopfs buy Cox's stock in Midway.

October 28, 1981: Schoellkopfs buy hangar groundlease from Cree Ventures thus becoming landlord to Midway, C & C, and Flight Electronics.

December 1981: Hugo Schoellkopf instructs Mercantile National Bank to cancel his personal guaranty insofar as further loans to Midway were concerned.

Undetermined date: Schoellkopfs assign hangar groundlease to Pumpkin Air, which is wholly owned by Schoellkopfs.

June 1982: Midway declares bankruptcy.

Pledger alleges that the Schoellkopfs schemed to drive Midway out of business so that C & C could sell airplanes from the hangar unhindered by the lease provision giving Midway exclusive mercantile rights. Pledger alleges that the Schoellkopfs induced Midway's partners to consolidate their loans at Mercantile National Bank and then precipitously withdrew their personal guaranties. Further, Pledger alleges the Schoellkopfs threatened to segregate space and generally disrupt the use of the hangar by Midway, and caused Midway's insurance to be terminated. The jury awarded to Pledger actual and exemplary damages after finding that the Schoellkopfs conspired to eliminate Midway from their hangar, tortiously interfered with Midway's contractual rights, and engaged in unfair competition against Midway. In our original opinion, we reversed the judgment in favor of Pledger holding that he could not recover for alleged injury to Midway. Schoellkopf, 739 S.W.2d at 918-20. The Supreme Court reversed this Court's judgment, holding that Pledger's inability to recover for torts against Midway was an issue of capacity which should have been raised by verified denial. Pledger, 762 S.W.2d at 145. 32 Tex.Sup.Ct.J. at 103. It remanded the case to this Court for consideration of points of error not addressed in our original decision. On remand, we conclude as follows: (1) Pledger adequately pleaded the cause of action of tortious interference with a contract; (2) there is no independent liability for civil conspiracy; (3) there is no evidence that the Schoellkopfs tortiously interfered with the contract between Midway and Cree Ventures; (4) as a matter of law, the Schoellkopfs could not interfere with other contractual rights asserted by Pledger; and (5) as a matter of law, the Schoellkopfs did not unfairly compete with Midway, as that tort was pleaded by Pledger. Based on the above conclusions, we reverse the judgment of the trial court and render a take nothing judgment.

I--PLEADING

In point thirty-five, ⁴ the Schoellkopfs assert that Pledger cannot recover under the theory of tortious interference with a contract because that cause of action was not adequately pleaded. Pleadings are sufficient if they fairly notify the other party of the basis of the pleader's claims. Jackson v. Julian, 694 S.W.2d 434, 436 (Tex.App.--Dallas 1985, no writ); TEX.R.CIV.P. 45, 47. Fair notice requires that the pleader allege every element of his cause of action so that the opposing party is able to prepare his defense. Rodriquez v. Yenawine, 556 S.W.2d 410, 414 (Tex.Civ.App.--Austin 1977, no writ). To sufficiently allege the elements of a cause of action, the court must be able to identify each element in the pleadings. Fairdale, Ltd. v. Sellers, 651 S.W.2d 725 (Tex.1982). However, whether each element is identifiable in the pleadings may be determined only after the pleadings are liberally construed. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977). Further, the court must consider the intention of the pleader and treat all reasonable inferences from the facts alleged as having been sufficiently stated in the pleadings. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); Gulf, Colorado & Santa Fe v. Bliss, 368 S.W.2d 594, 599 (Tex.1963).

A case of wrongful interference with a contract is established by findings that: (1) a contract existed that was subject to interference; (2) the act of interference was willful and intentional; (3) such intentional act was a proximate cause of the plaintiff's damages; and (4) actual damage or loss occurred. Futerfas v. Park Towers, 707 S.W.2d 149, 161 (Tex.App.--Dallas 1986, writ ref'd n.r.e.). Reference to Pledger's pleadings reveals the following allegations:

Pledger would show that at or about the time the Schoellkopfs, Pumpkin Air, Inc., and/or C & C acquired the Cessna distributorship, Schoellkopf set about and designed a scheme whereby they could eliminate Flite, Pledger, Williams and Midway from the Hangar.

Pursuant to the aforementioned conspiracy and unlawful design and scheme to unfairly compete, tortiously injure the business and property of Pledger, Flite, Williams, and Midway, Defendant Schoellkopf induced Pledger and Williams to allow Cox to sell his one third ownership in Midway to them.

Schoellkopf engaged in a deliberate, sometimes covert and sometimes overt, pattern and practice of disrupting and interfering with Flite, Pledger, Midway, and William's use of the hangar.

[D]amages include, but are not limited to, all those sums of money claimed by Mercantile against Pledger in the above, styled and numbered cause of action, and the lost value of Pledger's shares in Midway Aircraft Sales, Inc.

The above pleadings, when liberally construed, are sufficient to give fair notice of the cause of action. Moreover, the Schoellkopfs acknowledged that they were aware of the cause of action. During a discussion with the court, their counsel stated as follows:

Remember, he has to go by some theory that he has claimed. He [Pledger] has only claimed two: civil conspiracy and tortuous [sic] interference.

We hold that tortious interference with a contract claim was before the court. Point thirty-five is overruled.

II--CONSPIRACY

In point twenty-six, the Schoellkopfs assert that the court erred in rendering judgment for conspiracy, because as a matter of law the Schoellkopfs engaged in no specific unlawful conduct. The gist of a cause of action for conspiracy is damage from the commission of a wrong which injures another and not the conspiracy itself. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 808 (Tex.1979). Therefore, an actionable conspiracy must consist of wrongs that would have been actionable against the conspirators individually. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex.1963). Generally, if an act by one person cannot give rise to a cause of action, then the same act cannot give rise to a cause of action if done pursuant to an agreement between several persons. Gulf & Atlantic Life Ins. Co. v. Hurlbut, 696 S.W.2d 83, 102 (Tex.App.--Dallas 1985), rev'd on other grounds, 749 S.W.2d 762 (Tex.1987).

Therefore, the jury's findings on conspiracy are relevant only if we find in Pledger's favor on one of the other tort theories pleaded, that is, interference with contract or unfair competition. Because we find that Pledger failed to establish any other substantive tort, we hold there is no independent liability for conspiracy. Point of error twenty-six is sustained. ⁵

III--TORTIOUS INTERFERENCE

We next consider the tortious interference with a contract claim. The contractual rights of Midway involved in the case were its rights under its hangar sublease and its rights relating to its loans with Mercantile National Bank. The Schoellkopfs assert that the evidence was legally and factually insufficient to support jury findings in favor of the tortious interference claim. The Schoellkopfs further assert that they were legally privileged in their dealings regarding the hangar sublease and legally justified in their dealings with Mercantile due to their interest as guarantors.

We first address the cause of action as it relates to the hangar sublease, the contractual right at issue being Midway's right to exclusive sale of airplanes from the hangar. Midway's contract was with the following landlords: (1) Cree Ventures, (2) the Schoellkopfs as individuals, and (3) Pumpkin Air, a corporation owned by the Schoellkopfs. The claim requires a different analysis with regard to each...