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Brannan v. Ford Motor Co.

Court of Appeals of Texas, Fourteenth District

February 27, 2018

KIRK L. BRANNAN, Appellant
v.
FORD MOTOR COMPANY, Appellee

         On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 30601

          Panel consists of Justices Jamison, Busby, and Donovan.

          MEMORANDUM OPINION

          John Donovan Justice

         This suit began in October 2002 when Mark Wiggins Ford-Mercury, Inc. and Mark Wiggins, Individually, (collectively "Wiggins") filed a complaint with the Texas Department of Transportation Motor Vehicle Board (the "Board") against Ford Motor Company for rejecting its application for approval of an asset purchase agreement (the "Contract") with Brazoria County Ford, L.P. (the "Dealership"), Kirk L. Brannan, and Bobby Fielden, Jr., all of whom subsequently intervened (collectively, the "Intervenors").

         On January 15, 2004, the Board entered a Final Order. The parties subsequently entered into an agreement ("the Agreement") relating to the Dealership. After disagreements arose in relation to the Agreement and administrative remedies were exhausted, Intervenors filed suit. In their Fifth Amended Original Petition, Intervenors made the following claims solely against Ford: (1) breach of the Agreement; (2) tortious interference with the Contract; (3) deceptive trade practices; and (4) breach of duty of good faith and fair dealing. Ford counterclaimed alleging (1) statutory theft of property; (2) conversion; (3) negligence; and (4) tortious interference.[1] Prior to trial, the trial court granted Ford's motion for partial summary judgment on Intervenors' claims under the Texas DTPA and on breach of the duty of good faith and fair dealing.

         Following a jury trial, the trial court rendered judgment in accordance with the verdict that Intervenors take nothing on all claims pled in their suit against Ford and that Ford take nothing on its counterclaims against Intervenors. Further, the parties were ordered to bear their own costs. From that judgment, only the Dealership and Brannan filed a notice of appeal but the Dealership's appeal was dismissed by order of this court. Ford timely filed a cross-notice of appeal.

         On appeal, Brannan raises four issues. The first two issues claim error in the jury charge. The latter two issues complain the trial court erred in granting Ford's motion for partial summary judgment. Ford challenges the trial court's failure to award costs under Rule 131. See Tex. R. Civ. P. 131.

         Charge Error

         In issues one and two, Brannan claims the trial court abused its discretion by requesting the jury to determine whether or not Ford intentionally interfered with the Contract. Further, Brannan claims the trial court erred by refusing to instruct the jury that Ford tortiously interfered with the Contract. The basis of these complaints is that the trial court had "adopted into the record"[2] the administrative law judge's ("ALJ") Proposal for Decision and the Board's Final Order which, according to Brannan, established as a matter of law that Ford tortiously interfered with the Contract. Brannan contends the Proposal for Decision and the Final Order "clearly express that all four elements of tortious interference were met." We disagree.

         The elements of tortious interference with a contract are: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a proximate cause of the claimant's damage; and (4) actual damage or loss occurred. Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 856-57 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). Brannan relies solely upon the conclusion in the Proposal for Decision - adopted by the Board in its entirety in the Final Order - that Ford's approval of the proposed transfer was unreasonably withheld. See Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 5, 2001 Tex. Gen. Laws 4927, 4940 (codified at Tex. Occ. Code § 2301.359(e)). Brannan claims this conclusion satisfied the second element of tortious interference - willful and intentional.

         Subsection (e) provided, in pertinent part, "It is unreasonable for a manufacturer or distributer to reject a prospective transferee . . . who meets the written, reasonable, and uniformly applied standards or qualifications . . .." Id. The ALJ's sole basis for his conclusion that Ford's approval was unreasonably withheld was that its criteria was unwritten.[3]

         Assuming, without deciding, that the conclusion Ford's approval was unreasonably withheld establishes the willful and intentional requirement for tortious interference, it does not establish, as a matter of law, that act was a proximate cause of intervenor's damages, if any. Accordingly, the trial court did not abuse its discretion in refusing to instruct the jury that Ford tortiously interfered with the Contract. For these reasons, issues one and two are overruled.

         Duty of Good Faith and Fair Dealing

         Brannan claims the trial court abused its discretion when it granted Ford's motion for partial summary judgment on Intervenors' claims under the Texas DTPA and on breach of the duty of good faith and fair dealing. The only citations to authority are two cases defining an abuse of discretion. There are no citations to the four-volume clerk's record. We are not directed to the motion for summary judgment, any response to that motion, or any evidence that counters it. Despite liberal interpretation of the Rules of Appellate Procedure, the party asserting error on appeal still must put forth some specific argument and analysis showing that the record supports its claims. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Because these issues have not been properly briefed, they are waived. See Tex.R.App.P. 38.1(i) ("The brief must contain a clear and concise ...


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