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T-Miller Wrecking Services, Inc. v. Ricky's Towing of Amarillo, LLC

Court of Appeals of Texas, Seventh District, Amarillo

April 21, 2017

T-MILLER WRECKING SERVICES, INC., APPELLANT
v.
RICKY'S TOWING OF AMARILLO, LLC AND CANTU TOWING, LLC, APPELLEES

         On Appeal from the County Court at Law Number 1 Potter County, Texas Trial Court No. 102, 464-1; Honorable W.R. "Corky" Roberts, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice.

         Appellant, T-Miller Wrecking Services, Inc., appeals from a take-nothing judgment entered by the trial court in favor of Appellees, Ricky's Towing of Amarillo, LLC and Cantu Towing, LLC.[1] In a single issue, T-Miller contends the trial court erred by granting a directed verdict as to each of its three causes of action: (1) tortious interference with an existing contract between T-Miller and Potter County, (2) tortious interference with prospective business relations, and (3) breach of contract. Raising a sub-issue as to each cause of action, T-Miller contends the trial court erred in its determination that T-Miller failed to present sufficient evidence to raise a fact issue essential to each cause of action. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         Background

         Prior to 2014, Ricky Cantu filed a lawsuit against Randy French, David Ferrill, and Michelle Elliot for libel and defamation. T-Miller intervened in that lawsuit, asserting independent claims against Ricky's Towing and Cantu Towing allegedly arising out of contractual relationships established between Potter County and various local towing companies (including T-Miller, Ricky's Towing, and Cantu Towing) which, among other things, established the requirements necessary to be placed on Potter County's rotation list for towing services. According to its established policy, whenever Potter County required towing services, it would select the provider from an approved list of towing companies on an equal rotation basis. Under this policy, no single company or individual could obtain multiple contracts by using different business names, thereby occupying more than one slot on the rotation list.

         T-Miller asserts Ricky's Towing and Cantu Towing violated this policy by operating as two separate businesses when in fact they were one. As a result, T-Miller asserts the owners of Ricky's Towing and Cantu Towing improperly profited, to the detriment of T-Miller, by obtaining more towing jobs per rotation than they were entitled to under Potter County's rotation policy.

         In 2014, per an agreement of the parties, the trial court severed T-Miller's claims into a separate cause of action, and in 2015, a one-day jury trial was held. At the conclusion of T-Miller's case-in-chief, Ricky's Towing and Cantu Towing moved for directed verdicts asserting (1) T-Miller failed to introduce any evidence of a contract with Potter County that was interfered with, (2) T-Miller's contract with Potter County prevented T-Miller from asserting an action for tortious interference with prospective business relations, and (3) T-Miller was not a third-party beneficiary to their contracts with Potter County. The trial court granted a directed verdict as to each cause of action and this appeal followed.

         Standard of Review

         A directed verdict is proper when the evidence offered is insufficient to raise an issue of fact as to one or more of the essential elements of a cause of action, or the plaintiff admits, or the evidence conclusively establishes a defense to the plaintiff's cause of action. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Double Ace, Inc. v. Pope, 190 S.W.3d 18, 26 (Tex. App.-Amarillo 2005, no pet.). When reviewing a directed verdict based upon insufficiency of evidence, we must determine whether there is any evidence of probative force that raises a fact issue on the material issues presented. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). In doing so, we follow the standard of review for assessing legal insufficiency of the evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

         Legal insufficiency must be sustained (1) when there is a complete absence of a vital fact, (2) when rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact, (3) when the evidence offered to prove a vital fact is no more than a scintilla, or (4) when the evidence conclusively establishes the opposite of a vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists when the evidence, as a whole, enables reasonable minds to differ in their conclusions. See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). Evidence that only creates a mere surmise or suspicion is no more than a scintilla and, thus no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). In our review of the record, we must consider all the evidence in the light most favorable to the party against whom the verdict was directed disregarding all contrary evidence and inferences and giving the losing party the benefit of all reasonable inferences created by the evidence. City of Keller, 168 S.W.3d at 823.

         Sub-issue One-Tortious Interference with an Existing Contract

         T-Miller contends the trial court erred in granting a directed verdict as to its tortious interference with an existing contract claim because the evidence presented sufficiently raised a fact issue as to each element of that cause of action. For the purposes of our analysis, the elements of a claim for tortious interference with an existing contract are (1) the existence of a contract subject to interference, (2) a willful and intentional act of interference with that contract, (3) that proximately causes injury to the plaintiff, and (4) results in actual damage or loss. Prudential Ins. Co. of Am., 29 S.W.3d at 77. See Serafine v. Blunt, 466 S.W.3d 352, 361 (Tex. App.-Austin 2015, no. pet.). In support of their motions for directed verdicts, Ricky's Towing and Cantu Towing asserted T-Miller failed to satisfy the first element (existence of a contract) by failing to offer evidence of a contract subject to interference. We disagree.

         David Ferrill, an experienced tow truck operator for T-Miller, testified that T-Miller had a towing contract with Potter County during the period in question. He testified that, after a comparison of T-Miller's contract and the contracts signed by Ricky's Towing and Cantu Towing, the terms of T-Miller's contract were identical to the other contracts- with the exception of the name of the particular towing company in the preamble, that company's principal operator, address, phone number, and email address in the notice section, and the signatures of the owner/operator. The contracts for Ricky's Towing and Cantu Towing were admitted into ...


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