Complete Auto Sales, Inc. v. ADT Automotive, Inc. d/b/a Dallas Auto Auction, Inc., Auction Transport Inc. and ADT Automotive Holdings, Inc.--Appeal from 160th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

COMPLETE AUTO SALES, INC.,

Appellant,

v.

ADT AUTOMOTIVE, INC., d/b/a DALLAS AUTO AUCTION, INC., AUCTION TRANSPORT, INC., AND ADT AUTOMOTIVE HOLDINGS, INC.,

Appellees.

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No. 08-01-00399-CV

Appeal from

160th District Court

of Dallas County, Texas

(TC# DV99-09392-H)

O P I N I O N

Complete Auto Sales, Inc. appeals an adverse summary judgment. Appellant brings one issue, whether the trial court properly granted the multiple appellees= motions for summary judgment on appellant=s anti-trust claims. We will affirm.

Background

Appellant brought both contract and anti-trust actions against appellees, ADT Automotive, Inc. d/b/a Dallas Auto Auction, Inc., Auction Transport, Inc. and ADT Automotive Holdings, Inc. Appellees filed two partial motions for summary judgment, one on the contract claims and a second on the anti-trust claims. Both partial motions were brought under the no-evidence rule, Tex. R. Civ. P. 166a(i) and the senior summary judgment procedure under Tex. R. Civ. P. 166a(c). The trial court granted both motions, and entered a final judgment against appellant, denying all claims it asserted. Appellant only complains about the trial court=s summary judgment on its anti-trust claims. The anti-trust claims were for permanent injunction from preventing appellant from soliciting business on the premises of Dallas Auto Auction and damages. The anti-trust action was based upon an allegation of monopoly and a claim of combination or conspiracy in restraint of trade or unlawful tying under Tex. Bus. & Com. Code Ann. ' 15.05 (Vernon 2002) (prohibits monopolies or attempts to monopolize).

Dallas Auto Auction, owned and operated by the other appellees,[1] runs an automotive auction house in the Oak Cliff section of Dallas. According to the proof, there are four major auto auctions in the Dallas-Fort Worth area: (1) Manheim=s Fort Worth Auto Auction; (2) Adesa Auctions in Mesquite; (3) Manheim=s Dallas Auto Auction; and (4) Manheim=s Dealer=s Auto Auction in Grand Prairie. Dallas Auto Auction held exclusive rights in the area for the manufacturers= auction of General Motors and Daimler Chrysler vehicles. These manufacturer auctions are stated to generate the most profitable transportation fees because of the volume of sales to dealers and their willingness to pay more in order to guarantee timely delivery. Until appellee Dallas Auto Auction=s letter of November 8, 1999, appellant and others could solicit and compete for vehicle delivery services on the premises of Dallas Auto Auction. After the effective date, December 8, 1999, only Dallas Auto Auction=s sister company, Auction Transport, Inc. could solicit business on the auction house premises. The letter stated the reasons for the discontinuation of outside solicitors to be efficiency, security, and liability. The prohibition epistle went on to state Adealers will continue to have the unbridled ability to contract with you with respect to their transportation needs@ and Ayou will be permitted to deliver or pick-up vehicles at the auction . . . .@

Appellant argues that forbidding on-site solicitation substantially restricts its ability to garner vehicle transportation business, in violation of state anti-trust law.

Standard of Review

Appellees= summary judgment motions were argued variously under both the traditional and no-evidence standards. We treat them as hybrid motions.

In a no-evidence summary judgment, a party is entitled to summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard as in a directed verdict. Chapman v. King Ranch, Inc., 41 S.W.3d 693, 698 (Tex. App.--Corpus Christi 2001, pet. filed). A no-evidence summary judgment is proper if the respondent fails to bring forth more than a scintilla of probative evidence in support of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i); see also Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 905 (Tex. App.--El Paso 2001, pet. denied) ( party moving for no-evidence summary judgment must specifically state the elements as to which there is no evidence, then the burden shifts to the non movant to produce evidence raising a fact issue on the challenged elements).

_ traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A trial court properly grants summary judgment in favor of a defendant if the defendant conclusively establishes all elements of an affirmative defense, or conclusively negates at least one element of the plaintiff=s claim. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Randall=s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

Analysis

As aptly noted by appellant, to establish an illegal monopoly, a plaintiff must show (1) the defendant=s possession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident. Caller Times Pub. Co., Inc. v. Triad Communications, Inc., 826 S.W.2d 576, 580 (Tex. 1992). The more narrow issue presented to the trial court, and correspondingly to us, challenges the applicability of anti-trust prohibitions to a private property owner=s right to govern the use and occupancy of its own premises. See Clisbee v. Chicago, R.I. & G. Ry. Co., 230 S.W. 235, 237 (Tex. Civ. App.--Fort Worth 1921, writ ref=d). Appellant properly acknowledges a line of cases that hold the inapplicability of anti-trust laws based upon an exclusive right or privilege of use or access upon real property. See State v. Gulf Refining Co., 279 S.W. 526 (Tex. Civ. App.--Austin 1925, writ ref=d) (recognizing four exceptions to the rule that exclusive contracts are prohibited monopolies: (1) a contract of agency wherein an agent is prohibited from dealing for himself or representing others besides his principal; (2) a contract for the sale of a business in which the seller agrees for a limited time not to engage in a competing business within a limited territory; (3) a lease contract where the lessee agrees on the leased premises to sell only certain products; and (4) cases in which an exclusive right or privilege is granted only upon the property or premises of the grantor) (emphasis added); Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 572 (Tex. Civ. App.--Tyler 1974, writ ref=d n.r.e.) (airport is owned exclusively by the cities of Dallas and Fort Worth; therefore grant of exclusive contracts for ground transportation service would not be a prohibited monopoly); Redland Fruit Co. v. Sargent, 113 S.W. 330, 331 (Tex. Civ. App. 1908, no writ) (property owner has the right to say who shall or who shall not use his premises for any such purpose; right to give an exclusive contract for the purpose of any business is involved in every lease) (citing Ft. Worth & D. C. Ry. Co. et al. v. State, 99 Tex. 34, 87 S.W. 336, 70 L.R.A. 950 (Tex. 1905); Lewis v. Railway Co., 81 S.W. 111 (Tex. Civ. App. 1904, writ ref=d)) (privilege of selling goods upon the premises of another is not derived from the laws of the state, but from the consent of the owner).

Against this acknowledged authority, appellant cites but one case. See Texas & P. Coal Co. v. Lawson, 89 Tex. 394, 34 S.W. 919 (1896). Lawson is a fascinating, turn of the century before last, proceeding. There the coal company leased a saloon with exclusive rights to sell liquor to lessee, with a covenant to permit no other liquor sales on its property. The coal company also then issued checks to its employees, redeemable at the saloon. Id. at 920.

It is apparent from the face of the contract that the purpose of the parties in entering into the combination evidenced thereby was, as far as they might be able, (1) to restrain any other person from entering into the business of selling liquors to the people of Thurber during the lease; (2) to prevent the employ s [sic] of the company from purchasing liquors from any one other than Lawson; and (3) to influence such employ s to squander their earnings in the saloon, erected and maintained, under the terms of the contract, principally for the benefit of the employer. This is all apparent from the agreement not to permit any one else to sell liquors on the company=s lands, added to the very extraordinary agreement that the company should, during the term of the lease, which might have been 10 years, issue checks to its laborers, instead of paying money, and redeem weekly such of those checks as Lawson might take in for liquors sold at such saloon.

Id. This vertically integrated sales scheme was found by the court to prevent others from entering the business, to prevent employees from buying liquor elsewhere and the Aextraordinary@ issuance of checks in lieu of money, redeemable (only) at Lawson=s saloon. Id. Other than the restricted use of the premises, none of these other factors found by the Supreme Court are present in our scenario.

Closer in fact and law, is Clisbee. There the Fort Worth court held: A[T]he weight of authority supports the conclusion of the trial court maintaining the right of appellee to exclude appellants and other hackmen from intruding upon its grounds for the purpose of soliciting transportation for passengers.@ Clisbee, 230 S.W. at 236. Exactly as in Clisbee, appellant and other transporters similarly situated, were not prohibited from entering Dallas Auto Auction=s premises in order to preform their services. See id. The prohibition was solely solicitation upon the premises. Id. Specifically, the letter prohibiting appellant=s solicitation on the owner=s premises, allowed full access for the performance of contracts appellant and others had or could have, for the delivery of vehicles. That there was no anti-trust violation could have been and probably was decided as a question of law by the district court. Appellant does not present contrary legal authority or material facts precluding summary judgment. See Giddings Petroleum Corp. v. Peterson Food Mart, Inc., 859 S.W.2d 89, 94 (Tex. App.--Austin 1993, writ denied).

Accordingly, we hold, that under the proof presented, appellant has not shown material evidence of an illegal monopoly. Clisbee, 230 S.W. at 236; Bowen, 49 S.W.3d at 905. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

DON WITTIG, Justice

October 3, 2002

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1]Dallas Auto Auction is owned and operated by ADT Automotive, Inc., which in turn is a wholly owned subsidiary of ADT Automotive Holdings, Inc. The holding company also owns Auction Transport, Inc. whom we presume to be a direct competitor of appellant.