Victoria Joint Venture and Thomas A. Anderson, III v. Helen R. Walker and Victoria County Public Facilities Corporation--Appeal from 345th District Court of Travis County

walker TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00487-CV
Victoria Joint Venture and Thomas A. Anderson, III, Appellants
v.
Helen R. Walker and Victoria County Public Facilities Corporation, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 93-09229-A, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

This is an appeal of a summary judgment granted in favor of appellees Helen R. Walker and the Victoria County Public Facilities Corporation (the "Public Facilities Corporation"). Appellants Thomas A. Anderson, III and Victoria Joint Venture (collectively the "Joint Venture") sued appellees and three other defendants, John Pouland and Norman Donelson, both of the Texas General Services Commission (the "GSC"), and James Wayne, on multiple causes of action arising out of the award of a state leasehold to Wayne without competitive bidding. Only one cause of action raised by the Joint Venture is relevant to appellees. The Joint Venture alleged that appellees participated with the other defendants in a civil conspiracy to tortiously interfere with a prospective contract and to induce GSC officials to violate the competitive bidding statute. See Tex. Rev. Civ. Stat. Ann. art. 601b, 6.05(c) (West Supp. 1995) (the "competitive bidding statute"). The trial court granted appellees' motion for summary judgment and severed the Joint Venture's claims against appellees into a separate cause number. (1) The Joint Venture appeals the trial court's judgment in four points of error. We will affirm the judgment of the trial court.

 
BACKGROUND

In 1980, the GSC invited the Joint Venture to submit a bid under the competitive bidding statute to provide a leasehold for the offices of the Texas Department of Human Services (the "TDHS") in Victoria, Texas. After the Joint Venture successfully bid to provide an office building for the TDHS, it obtained financing, acquired a site, and constructed a building to be used for the TDHS leasehold. The primary term of the Joint Venture lease expired on August 31, 1993 (the "1980 Joint Venture lease").

Before the expiration of the 1980 Joint Venture lease, the Joint Venture and the TDHS discussed an increase in the size of the leasehold. Because economic reasons made it impractical to add to the existing space at the prevailing rental rate, it was decided that the expansion would be accomplished through a new competitive bid for a leasehold to meet the larger space requirements. By letter dated November 23, 1992, the TDHS advised the Joint Venture that it would be afforded an opportunity to bid. However, the GSC never issued an invitation for a bid. Instead, the Joint Venture learned in April 1993 of a plan to relocate the TDHS leasehold without competitive bidding to the Town Plaza Mall, which defendant Wayne owned.

When the Joint Venture learned of this proposal, Anderson contacted the GSC and was told that the appropriate GSC representative, Donelson, could not meet with him until April 22, 1993. Anderson scheduled a meeting with Donelson for that date and was assured by Amy Finley, a GSC lease planner, that no action on the lease would be taken before that time. Despite this assurance, the TDHS entered into a "new lease" with Wayne on April 21, 1993 without competitive bidding. (2) This lease term began to run on September 1, 1993, after the expiration of the Joint Venture lease.

The Joint Venture sued appellees, claiming they participated in a civil conspiracy to tortiously interfere with a prospective contract and to induce GSC officials to violate the competitive bidding statute. Appellees filed a motion for summary judgment, asserting the affirmative defense of official immunity and claiming that, as a matter of law, the Joint Venture had no cause of action against them for civil conspiracy or tortious interference. The trial court granted their motion for summary judgment.

 
DISCUSSION

In four points of error, the Joint Venture complains that the trial court erred in granting appellees' motion for summary judgment. The standards for reviewing a motion for summary judgment are well established:

 

(1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

 

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

 

(3) Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

 

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

The question on appeal is not whether the summary-judgment proof raises a fact issue, but whether the summary-judgment proof establishes as a matter of law that no genuine issue of material fact exists as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). When the order does not give a specific reason for the granting of the judgment, the nonmovant, on appeal, must show why each ground asserted in the motion is insufficient to support the order. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

In their motion for summary judgment, appellees asserted: "Pursuant to a reading of Plaintiff's Original Petition on file with this Honorable Court, Defendants argue that Plaintiffs have not established a cause of action for civil conspiracy." The Joint Venture asserts in its third point of error that the trial court erred in granting summary judgment on this ground. We must thus determine whether appellees proved that no genuine issue of material fact exists as to one or more essential elements of the Joint Venture's cause of action for civil conspiracy, thereby entitling them to judgment as a matter of law. (3)

There are five essential elements of a cause of action for civil conspiracy: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); see also Triplex Communications, Inc. v. Riley, 38 Tex. Sup. Ct. J. 765, 767 (June 8, 1995). The Joint Venture alleged that (1) all five defendants, including appellees; (2) intentionally conspired to keep the Joint Venture from obtaining a new lease; (3) corresponded or met collectively or in small groups to agree on a course of action to prevent Joint Venture from obtaining a new lease; (4) took actions to insure that Wayne would be awarded the lease without complying with the competitive bidding statute and conspired to induce GSC officials to violate the competitive bidding statute; and (5) that these actions resulted in damages. Appellees claim that the uncontroverted summary-judgment proof conclusively established the absence of the fourth essential element of a civil conspiracy claim--one or more unlawful, overt acts.

The Joint Venture alleged that the following events gave rise to the conspiracy between appellees and Pouland, Donelson, and Wayne. In June 1992, the Victoria County voters had rejected a general obligation bond issue to finance the acquisition of facilities for the County Health Department. One of the facilities the County considered acquiring with these bonds was the Town Plaza Mall. Though the bond issue was rejected, Walker, County Judge of Victoria County, met with Wayne in October of 1992 to discuss acquisition of Town Plaza Mall by Victoria County for use in part by the County Health Department. She also discussed with Wayne her intention to meet with GSC representatives to request relocation of the TDHS leasehold to Town Plaza Mall. According to the Joint Venture, Walker's plan was to get other state agencies to relocate at the Town Plaza Mall, thereby generating sufficient rental income from the State of Texas for Victoria County to issue revenue bonds to purchase the mall. The Joint Venture contends that Walker later met with Pouland and Donelson of the GSC to persuade them to approve the award of the TDHS leasehold to Wayne without a competitive bid. On the same day as this meeting, Pouland and Donelson directed Finley, one of their staff members, to contact the TDHS and induce it to abandon its request for the competitive bid and agree to move the TDHS office into the Town Plaza Mall. The TDHS leasehold was subsequently awarded to Wayne without competitive bidding. Walker thereafter moved forward with her plan to acquire the Town Plaza Mall and talked to potential investors about the revenue bonds. She obtained authority from the Victoria County Commissioner's Court to issue revenue bonds for the purchase of the Town Plaza Mall and to retain financial advisors and bond counsel to prepare the bond issue. The Public Facilities Corporation was formed as a nonprofit corporation for the express purpose of issuing revenue bonds and purchasing the Town Mall Plaza from Wayne, thus receiving the benefits of the conspiracy and facilitating the transfer of a part of those benefits to Wayne. The Public Facilities Corporation entered into a contract with Wayne to purchase the Town Plaza Mall on July 1, 1993.

According to appellees, the summary-judgment evidence conclusively established that there was no violation of the competitive bidding statute and, therefore, no unlawful, overt act. Appellees' summary-judgment evidence established the following facts. (4) On December 2, 1992, the State of Texas entered into a lease agreement with Wayne for space in the Town Plaza Mall (the "1992 Wayne lease"). Section 5(a) of the lease (the "add-on provision") permitted the State to lease additional space: "Lessor further agrees that should the Lessee request additional space during the term of this lease, (5) Lessor may furnish such as is requested by the Lessee, if available, adjacent to space covered by this lease . . . ." Section 5(l) empowered the State to assign any State agency to occupy all or part of the leased space.

Appellees argue that the State of Texas and Wayne did not enter into a new lease, which would require compliance with the competitive bidding statute, but instead amended the 1992 Wayne lease to add space for use by the TDHS as expressly authorized by sections 5(a) and 5(l) of the lease. The competitive bidding statute requires competitive bidding when the State leases space from a private source. (6) The statute, however, does not apply when the State amends an existing lease. Appellees argue that there was no violation of the competitive bidding statute and, therefore, no unlawful, overt act.

Appellees further contend that the acts of adding space to the Wayne lease and assigning that space to the TDHS were taken pursuant to a legislative mandate to streamline health and human services by co-locating state health and human services agencies. See Tex. Rev. Civ. Stat. Ann. art. 4413(505), 3.08 (West Supp. 1995). Co-location is required by statute if "client access would be enhanced, the cost of co-location is not greater than the combined operating costs of the separate offices or facilities of those agencies, and the co-location would improve the efficiency of the delivery of services." Id. 3.08(b). Before the lease amendment at issue in the instant cause, the State had increased its rental space at the Town Plaza Mall for use by the Commission for the Blind and the Department of Protective and Regulatory Services, which are both health and human services agencies. See id. 3.08(c)(4), (11). Appellees' summary-judgment proof established that the TDHS viewed the lease amendment co-locating the TDHS at the Town Plaza Mall as a means of complying with the co-location statute, thereby enhancing service to TDHS clients.

We hold that appellees conclusively established that no genuine issue of material fact exists as to an essential element of the Joint Venture's cause of action for civil conspiracy. Texas courts have long held that the interpretation of an unambiguous contract is a question of law that is proper for summary judgment. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex. 1962). If a contract is so worded that it can be given a certain and definite meaning or interpretation, it is not ambiguous. Alba Tool & Supply Co. v. Industrial Contractors, Inc., 585 S.W.2d 662, 664 (Tex. 1979). The 1992 Wayne lease is an unambiguous contract that can be given a definite interpretation: the add-on provision permitted the State to amend the Wayne lease to include additional space for the TDHS.

In a letter to Joe Langston of the TDHS, Wayne wrote that the additional space was provided "as an add on to the existing lease . . . to be constructed for [the TDHS], adjacent to the existing lease under the same terms and conditions as the existing lease." This addition clearly falls within the scope of sections 5(a) and 5(l) of the 1992 Wayne lease. The Joint Venture asserted at oral argument that because the additional space consists of new construction in the Town Plaza Mall, it falls outside the scope of the add-on provision. We disagree because such a restriction appears nowhere in the lease.

The co-location statute provides additional support for appellees' argument that their actions were not illegal but were in fact pursuant to legislative mandate. However, appellees' argument is not dependent upon the co-location statute. Even assuming no such statute existed, appellees' actions were lawful because the 1992 Wayne lease provisions clearly enabled the State to amend the lease to provide additional space to house the TDHS without competitive bidding.

The Joint Venture alleged that appellees committed an unlawful, overt act when they induced GSC officials to break the law by violating the competitive bidding statute. The Joint Venture made no other allegations of unlawful actions on the part of appellees. Because there was no violation of the competitive bidding statute, the Joint Venture failed to establish an essential element of its cause of action for civil conspiracy--an unlawful, overt act. Thus, appellees were entitled to summary judgment as a matter of law. We overrule the Joint Venture's third point of error.

In its fourth point of error, the Joint Venture complains that the trial court erred in granting summary judgment relevant to the issues of tortious interference and business disparagement. Appellees alleged in their motion for summary judgment that the Joint Venture failed to establish a cause of action for tortious interference with a potential contract and for business disparagement. The Joint Venture concedes that the cause of action for tortious interference was raised against Wayne, Pouland, and Donelson, not against appellees. However, the Joint Venture argues that once civil conspiracy was established, appellees were liable for the other defendants' actions in tortiously interfering with a prospective contract in furtherance of the conspiracy. See Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983), cert. denied, 466 U.S. 938 (1984). Because the Joint Venture failed to establish an essential element of its cause of action for civil conspiracy, the Joint Venture cannot prove appellees' liability for tortious interference. In addition, the Joint Venture concedes that no cause of action for business disparagement was asserted against appellees. Because the Joint Venture had no viable cause of action against appellees, appellees were entitled to summary judgment as a matter of law. We accordingly overrule the Joint Venture's fourth point of error.

 
CONCLUSION

We hold that appellees' summary-judgment proof established as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the Joint Venture's causes of action for civil conspiracy and tortious interference with a prospective contract. It is therefore unnecessary to address the Joint Venture's first and second points of error relating to appellees' affirmative defense of official immunity. (7) Having overruled the Joint Venture's third and fourth points of error, we affirm the judgment of the trial court.

 

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: August 30, 1995

Do Not Publish

1. The trial court also granted Pouland and Donelson's and Wayne's motions for summary judgment, from which Joint Venture appeals. That appeal, which was assigned Cause No. 03-94-00716-CV, was consolidated with the instant appeal for purposes of oral argument.

2. The Joint Venture characterizes the agreement between Wayne and the TDHS as a new lease while appellees contend that it was in fact a lease amendment to an existing lease. This issue, which lies at the heart of the dispute, will be addressed in our discussion.

3. The Joint Venture claims that appellees sought summary judgment based on a pleadings defect and that we therefore need not review their summary-judgment evidence to determine if they proved the nonexistence of a material fact issue as a matter of law. The appropriate standard of review of a summary judgment based on a pleadings defect is de novo, with the reviewing court taking all allegations, facts, and inferences in the pleadings as true and reviewing them in the light most favorable to the pleader. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The Joint Venture accordingly argues that the only proof that this Court may consider is their unsworn petition and that we must accept as true all allegations stated therein.

 

The standard cited by the Joint Venture applies only when a motion for summary judgment is based solely upon the plaintiff's petition. Abbott v. City of Kaufmann, 717 S.W.2d 927, 929 (Tex. App.--Tyler 1986, writ dism'd). When the defendant-movant's motion is supported by summary-judgment proof, summary judgment is appropriate if the uncontroverted summary-judgment proof conclusively negates one of the essential elements of the plaintiff's cause of action. Natividad supports this distinction. As in the instant cause, the defendants in Natividad did not base their motion for summary judgment solely upon the plaintiff's petition. Their motion for summary judgment was also supported by summary-judgment proof. The court held that it was unnecessary to reach the question of whether the defendants' summary-judgment proof entitled them to summary judgment because the plaintiff's pleadings failed to state a viable cause of action. Natividad, 875 S.W.2d at 700.

4. The Joint Venture challenges the sufficiency of appellees' summary-judgment proof, arguing that appellees' motion for summary judgment failed to make specific references to the evidence supporting their motion. Rule 166a(c) provides that "judgment sought shall be rendered forthwith if (i) the deposition transcripts . . . and other discovery responses referenced in the motion or response, and (ii) the pleadings, admissions, affidavits . . . on file at the time of the hearing, or filed thereafter" show that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Wilson v. Burford, 38 Tex. Sup. Ct. J. 680 (May 25, 1995). The rule contains no requirement that the evidence be referenced more specifically than being incorporated into the motion, and we refuse to hold that a motion for summary judgment is defective if it fails to set out the exact evidence on which it relies.

5. The primary term of the Wayne lease expires in February 2000.

6. Section 6.05 is entitled "Leasing Space From Other Sources." Tex. Rev. Civ. Stat. Ann. art. 601b, 6.05.

7. When a defendant-movant moves for summary judgment on the basis of an affirmative defense, the movant must expressly present and conclusively prove each essential element of the affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Unless the movant conclusively establishes the affirmative defense, the nonmovant plaintiff has no burden in response to the motion. Gonzales v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christ 1991, writ denied). Governmental employees can assert the affirmative defense of official immunity from suit only if they establish three elements: (1) that the suit arises from the performance of discretionary duties; (2) that they acted within the scope of their authority; and (3) that they acted in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Our review of the evidence indicated the possible existence of fact issues with regard to the elements of appellees' affirmative defense of official immunity. Because we resolved the appeal on other grounds, it was unnecessary to further examine appellees' official immunity defense.