THREE RIVERS GYPSUM, INC., ANDFROM A DISTRICT COURT DONALD R. COFFEY, APPELLANTS, v. TEXAS COMMERCE BANK-DALLAS, AND JAMES KELLEY, APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01108-CV
THREE RIVERS GYPSUM, INC., ANDFROM A DISTRICT COURT
DONALD R. COFFEY,
 
        APPELLANTS,
 
v.
 
TEXAS COMMERCE BANK-DALLAS, AND
JAMES KELLEY,
 
        APPELLEES. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH, AND JUSTICES STEWART, AND BURNETT
OPINION BY JUSTICE BURNETT
JUNE 14, 1989
        Appellants, Three Rivers Gypsum, Inc., and Donald R. Coffey, sued appellees, Texas Commerce Bank-Dallas and James Kelley, for damages allegedly caused by appellees' forcing appellants to sell their assets at a depressed price. The trial court granted the appellees' motion for summary judgment. Appellants assert five points of error. We affirm the summary judgment of the trial court.
        Donald R. Coffey is the sole shareholder and chief executive and operating officer of Three Rivers Gypsum, Inc. (Three Rivers). Although Coffey is listed as an appellant in this case, Texas Commerce Bank-Dallas (Texas Commerce) and James Kelley assert that on May 29, 1985, the trial court granted summary judgment against Coffey individually, that Coffey has not complained of that order, and that, therefore, the summary judgment against Coffey individually stands. We agree.
        On January 31, 1979, Three Rivers purchased a gypsum plant and quarry for $2,842,000. On the same date, Texas Commerce lent Three Rivers $2,842,000 pursuant to the January 31, 1979, Loan Agreement, which Texas Commerce secured by a mortgage and deed of trust against the gypsum plant and equipment. The Farmers Home Administration (FHA) guaranteed ninety percent of the loan.
        For the fiscal year ending February 29, 1980, Three Rivers reported a taxable income of $1,576,970; however, Three Rivers recorded losses of $1,221,171 in the fiscal year ending in 1981 and $975,873 in the fiscal year ending in 1982. As a result of these losses, Three Rivers was not able to maintain a stated amount of consolidated working capital, consolidated current assets to liabilities ratios, and consolidated liabilities to consolidated tangible net worth ratios, as required in paragraphs 4 (a) (9), (10), and (11) of the Loan Agreement.
        Coffey said that at the September 25, 1981, meeting with Texas Commerce and the FHA, a representative of Texas Commerce, Terry Wilson, who was then the president of Texas Commerce, said that the bank was going to act and was going to act very quickly. Coffey said that he understood that meant Texas Commerce was going to foreclose on the note very quickly. Other than the above remark, Coffey said that he did not remember any other remarks that he considered threatening. Coffey further said that after the September 25, 1981, meeting, Wilson did not pressure him. Coffey admitted that on September 25, 1981, Three Rivers was "insolvent on its financial."
        Three Rivers alleges that on July 29, 1981, James Kelley, a Texas Commerce vice president who had taken over Three Rivers's account after the original loan officer left the bank, accepted a job with Heritage National Bank (Heritage) and that Homer J. Rader, Jr., controlled Heritage. Kelley left Texas Commerce on September 30, 1981. Three Rivers asserts that Kelley requested an appraisal of Three Rivers's assets and that the appraisal showed a value of $9,894,870. Three Rivers also alleges that Kelley learned of the existence of oil, gas, and other mineral deposits in the land pledged to Texas Commerce. Three Rivers alleges that Rader's interest in Three Rivers arose about the time Kelley received the appraisal. Three Rivers contends that Coffey rejected Rader's offer to purchase Three Rivers, that Rader then went to Kelley at Texas Commerce to discuss his interest in purchasing Three Rivers, and that thereafter Texas Commerce took a "hard line position" with Three Rivers by refusing to lend it $3,000,000 it needed in order to modernize its plants, by refusing to release any of its collateral to allow another bank to lend the $3,000,000, and by expressing the intent to foreclose on the Loan Agreement, thereby forcing Three Rivers to sell its assets at a distressed circumstances price.
        On November 15, 1981, Three Rivers closed the gypsum plant. On December 4, 1981, Rader purchased the gypsum plant and quarry. Rader assumed Three Rivers's Loan Agreement, in the amount of $2,346,625.78, and paid Three Rivers $1,000,000 in cash.
        Three Rivers asserts that its assets had a May 26, 1981, fair market value of $9,894,870 and a May 26, 1981, forced liquidation value of $5,471,900. Three Rivers alleges that the conduct of Texas Commerce and Kelley injured Three Rivers by forcing it to sell its assets at a price approximately $6,300,000 below its fair market value.
        Three Rivers asserts causes of action for (1) breach of duty of good faith and fair dealing, (2) breach of fiduciary duty by Texas Commerce and Kelley, (3) conspiracy between Texas Commerce, Kelley, and Rader to injure the business of Three Rivers, (4) economic duress and/or business compulsion, and (5) tortious interference by Texas Commerce, Kelley, and Rader with Three Rivers's business. The trial court granted Texas Commerce and Kelley's motion for summary judgment against these claims.
        Summary judgment is proper only where the movant has shown that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam); TEX. R. CIV. P. 166-A (c). The Court will take the evidence favorable to the nonmovant as true, will indulge every reasonable inference in favor of the nonmovant, and will resolve all doubts in favor of the nonmovant. MMP, Ltd., 710 S.W.2d at 60.
        In point of error one, Three Rivers argues that the trial court erred in granting summary judgment against its claim for breach of duty of good faith and fair dealing. Arnold v. Nat'l County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987); Plaza Nat'l Bank v. Walker, No. 09-88-028-CV (Tex. App.--Beaumont, Mar. 16, 1989, writ pending); TEX. BUS. & COM. CODE ANN. § 1.203 (Tex. UCC) (Vernon 1968). The Texas Supreme Court has declined to impose an implied covenant of good faith and fair dealing in every contract. Arnold, 725 S.W.2d at 167; Exxon Corp. v. Atlantic Richfield Co., 678 S.W.2d 944, 947 (Tex. 1984); English v. Fischer, 660 S.W.2d 521, 522 (Tex. 1983). Plaza National Bank is distinguishable because its facts involved a bank and a depositor. Between a bank and a borrower, as in the instant case, we hold that there is no implied duty of good faith and fair dealing. See Cluck v. Frost Nat'l Bank of San Antonio, 714 S.W.2d 408, 409-10 (Tex. App. - San Antonio 1986, writ ref'd n.r.e.). Therefore, Texas Commerce and Kelley have shown that they are entitled to judgment as a matter of law. TEX. R. CIV. P. 166-A (c). Three Rivers's first point of error is overruled.
        In point of error two, Three Rivers argues that the trial court erred in entering summary judgment against its claim for breach of fiduciary duty based on the nature of the relationship between Three Rivers and Texas Commerce that arose out of the unequal bargaining position of the parties and by reason that due to the agreements between the parties, Texas Commerce had the power to control Three Rivers's business. For the reasons given below, we disagree.
        Three Rivers appears to argue that after Texas Commerce indicated that it intended to foreclose on the Loan Agreement that Three Rivers was then in an unequal bargaining position and that at that point Texas Commerce was in control of its business; therefore, Texas Commerce owed it a fiduciary duty of good faith and fair dealing. Three Rivers relies upon Justice Spears's concurring opinion in English, 660 S.W.2d at 524-25. Where the contract does not provide for the duty of good faith and fair dealing and where the contract is not governed by the Texas Uniform Commercial Code, Justice Spears wrote that the duty of good faith and fair dealing must arise from the relationship between the parties and not from the contract. English, 660 S.W.2d at 525. The relationship between a mortgagor and mortgagee is not of a fiduciary character. Lovell v. Western Nat'l Life Ins. Co., 754 S.W.2d 298, 303 (Tex. App.--Amarillo 1988, writ denied). Accordingly, there is nothing in the relationship between Three Rivers and Texas Commerce that suggests a fiduciary character. Three Rivers does not argue the Loan Agreement itself reflects unequal bargaining power. The unequal bargaining power resulted from Three Rivers's violation of paragraphs 4(a) (9), (10), and (11) of the Loan Agreement that placed it in technical default and, therefore, gave Texas Commerce the option to foreclose on the loan. This sort of unequal bargaining power results from a contract, which Justice Spears wrote does not, in itself, create the duty of good faith and fair dealing. English, 660 S.W.2d at 525.
        Justice Spears also wrote that an implied covenant of good faith and fair dealing does not override the express terms of the contract. English, 660 S.W.2d at 524. The Loan Agreement specifically provides: "[Three Rivers] hereby expressly acknowledges that no term or condition hereof, or any of the loan papers, shall be construed so as to render the relationship between [Three Rivers], [FHA] and [Texas Commerce] other than that of a borrower, guarantor and lender [respectively] ...." Loan Agreement Paragraph 6(c). This provision overrides any implied covenant of good faith and fair dealing.
        Justice Spears wrote that where a case involves a fairly negotiated contract between parties and both parties are represented by attorneys, the parties are "certainly capable of stating their agreement in its entirety". English, 660 S.W.2d at 525. Texas Commerce asserts that it is undisputed that both parties were represented by counsel throughout the negotiations leading up to and at the actual execution of the Loan Agreement. Three Rivers does not contradict Texas Commerce's allegations. We overrule Three Rivers's second point of error.
        In point of error three, Three Rivers contends that the trial court erred in rendering summary judgment against its claim that Texas Commerce and Rader conspired to injure Three Rivers's business. The essential elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
        The record is devoid of any unlawful, overt acts. Because Three Rivers was in default of provisions 4(a)(9), (10), and (11) of the Loan Agreement, Texas Commerce had the option of lawfully foreclosing on the property. Three Rivers argues that Texas Commerce encouraged Radar to purchase the plant and quarry from Three Rivers. Assuming this is true, we fail to see how this is unlawful. Texas Commerce did not owe Three Rivers a fiduciary duty, as discussed earlier. Taking all of Three Rivers allegations as true, as a matter of law, Texas Commerce and Kelley were entitled to summary judgment. Three Rivers's third point of error is overruled.
        In point of error four, Three Rivers asserts that the trial court erred in rendering summary judgment against its claim for damages resulting from economic duress and/or business compulsion. Economic duress exists where: (1) there is a threat to do something that a party threatening has no legal right to do; (2) there is some illegal exaction or some fraud or deception; and (3) the restraint is imminent and such as to destroy free agency without present means to protection. Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 109 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). Additionally, economic duress may be claimed only when the party against whom it is claimed was responsible for the claimant's financial distress. Id. Texas Commerce had the legal right to foreclose because Three Rivers was in default of the Loan Agreement; therefore, Three Rivers has failed to meet the above test. Furthermore, Texas Commerce was not responsible for Three Rivers's financial distress; the true financial distress was caused by the gypsum plant's enormous losses in 1981 and 1982, which forced Three Rivers into default of provisions 4(a)(9),(10), and (11) of the Loan Agreement. As a matter of law, Texas Commerce and Kelley were entitled to judgment. Three Rivers's fourth point of error is overruled.
        In point of error five, Three Rivers contends that the trial court erred in entering summary judgment against its claim for damages resulting from Texas Commerce's, Kelley's, and Rader's tortious interference with Three Rivers's business. Three Rivers's brief under this point of error is strictly in terms of a tortious interference with contractual relations. To establish a claim of wrongful interference with a contract, a plaintiff must show that the defendant willfully and intentionally committed acts calculated to cause damage to the plaintiff's lawful business when the acts were done with the unlawful purpose of causing damage and loss, without right or justifiable excuse on the part of the defendant, which resulted in actual damage and loss to the plaintiff. C.F. & I Steel Corp. v. Pete Sublett Co., 623 S.W.2d 709, 713 (Tex. Civ. App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.) The Loan Agreement is between Three Rivers and Texas Commerce. Parties to a contract cannot tortiously interfere with their own contract; only a third party can interfere with a contract. Baker v. Welch, 735 S.W.2d 548, 549 (Tex. App.--Houston [1st Dist.] 1987, writ dism'd w.o.j.). Therefore, as a matter of law, Three Rivers cannot recover against Texas Commerce under this theory of recovery.         Regarding Kelley's alleged tortious interference with Three Rivers's contractual relations, Three Rivers does not direct us to any portion of the record where anyone alleges Kelley did anything detrimental to Three Rivers's contractual relations with Texas Commerce. Three Rivers asserts that Kelley accepted a job with Heritage, which was controlled by Rader, that Rader expressed interest in purchasing Three Rivers, and that Texas Commerce became uncomfortable with Three Rivers's Loan Agreement all at approximately the same time and, therefore, Kelley may have influenced Texas Commerce to exert pressure on Three Rivers as a favor to Rader. Assuming everything Three Rivers alleges is true, Kelley is still entitled to summary judgment. To maintain a claim for tortious interference with contractual relations, Three Rivers has to show that Kelley's interference proximately caused the termination of Three Rivers's and Texas Commerce's contract. C. F. & I. Steel Corp., 623 S.W.2d at 713. The Loan Agreement never terminated; Rader assumed it; therefore, Kelley could not have proximately caused its termination. Three Rivers's fifth point of error is overruled.
        The summary judgment of the trial court is affirmed.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01108.F
 
 
 
File Date[01-02-89]
File Name[881108]