Holdampf, Frank J., Dba Patriot Oil Company v. West Texas State Bank, Odessa Formerly Kermit State Bank ( 2004 )

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

FRANK J. HOLDAMPF d/b/a

)

PATRIOT OIL COMPANY,

) No. 08-02-00190-CV )

Appellant,

) Appeal from )

v.

) 109th District Court )

WEST TEXAS STATE BANK, ODESSA,

) of Winkler County, Texas

FORMERLY KERMIT STATE BANK,

) ) (TC# 14,219)

Appellee.

)

MEMORANDUM OPINION  

Frank J. Holdampf d/b/a Patriot Oil Company (Holdampf) appeals from summary judgment entered in favor of West Texas State Bank, Odessa, formerly Kermit State Bank (WTSB). We affirm.

FACTUAL SUMMARY

Holdampf operated Patriot Oil Company, a full service gas station, in Midland, Texas. He purchased fuel from B&D Oil Company (B&D) in Kermit, Texas, but eventually fell behind on his payments. Holdampf alleges that he and the owner of B&D had an agreement that would have allowed him to continue to purchase fuel and slowly pay off his debt, but WTSB instructed B&D to stop selling him fuel or the bank would "call her loan." B&D subsequently filed a suit on sworn account against Holdampf in Midland County. Holdampf, in turn, filed claims against various third-party defendants, including a claim against WTSB for tortious interference with a contract. Following a jury trial, B&D obtained a judgment against Holdampf for $78,895.89 plus interest and attorney's fees. The trial court subsequently severed Holdampf's cause of action against WTSB into a new cause number and transferred venue to Winkler County. WTSB then filed a motion for both traditional and no-evidence summary judgment. The trial court granted summary judgment in favor of WTSB.

SUMMARY JUDGMENT

In his first issue, Holdampf challenges the summary judgment granted in favor of WTSB. In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Duran, 921 S.W.2d at 784. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Duran, 921 S.W.2d at 784.

To recover for tortious interference with a contract, one must prove: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference by the defendant; (3) that the defendant's act was the proximate cause of the plaintiff's damage; and (4) that actual damage or loss to the plaintiff occurred. See Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996); Abraham v. Ryland Mortgage Co., 995 S.W.2d 890, 895 n.12 (Tex.App.--El Paso 1999, no pet.).

WTSB filed its motion for summary judgment on December 28, 2001. Its summary judgment evidence consisted of an affidavit by Mark W. Sparks, president of the Kermit branch of the bank. From mid-1996 until December of 2001, Sparks had served as vice president of the bank. B&D's loan with WTSB is secured by the company's tangible and intangible property, including accounts receivable. Sparks is the sole loan officer at the bank and is the only person at the bank who communicates with B&D regarding its loans. Sparks had no knowledge of a contract or agreement between Holdampf and B&D and he never discussed the Holdampf account receivable with anyone at B&D.

Holdampf did not file a response but instead, on January 17, 2002, filed a document entitled, "Notice of Automatic Stay To West Texas State Bank, Odessa, Et Al" which advised that an automatic bankruptcy stay had been in effect since March 22, 2001, and therefore, the summary judgment motion was "moot." Counsel for WTSB notified Holdampf that the bankruptcy stay had been lifted on August 31, 2001, and it intended to present the summary judgment motion on the scheduled hearing date, February 20, 2002. Holdampf filed a response to the motion for summary judgment on January 24, 2002. That response included Holdampf's own affidavit, a portion of which stated as follows:

In June of 1998, I traveled from Midland to Kermit to Anell's ⁽¹⁾ home office to discuss our mutual bad situation. I owed payments for at least 7 shipments of fuel, which I was unable to pay all at once. Over the phone, she told me her bank was pressuring her to reduce her loan which was about $276,000.00, and about 1/5 of the loan was equal to Patriot's balance to B&D Oil.

My friend Anell agreed to sell fuel on a certified check basis, which was to be given to her transport driver along with a second check of approximately $400.00 towards the old balance. This we both agreed to in her office in the yard of B&D Oil Company in Kermit, Texas.

We both felt that the new payment plan would succeed solving both of our problems during what had become very predatory times that had already destroyed so may [sic] full service stations across Texas. We parted friends hoping the best from our mutual beneficial contract of survival. I felt relieved as I drove back to Midland from Kermit. I felt relieved and happy and ready to continue working 16 hours a day, 7 days a week to make our agreement work.

The very next week, I received a call from Anell. She was very upset. Kermit State Bank had called her and told her to cut Patriot off! They told her that a check from an old shipment had not cleared the bank and they told her to cut me off or her whole $276,000.00 loan would be called. Kermit State Bank did not even let our certified check payment plan get off the ground. They intentionally interfered with the contract between B&D Oil and Patriot. Anell was very upset.

A few days latter [sic], I called Anell to see if the bank had a change of heart because we needed a load of fuel. She said that Kermit State Bank was adamant that she could not ship no fuel to Patriot, even for cash in the form of a certified check.

I made a second trip to Kermit from Midland only to hear a repeat of what I was told on the phone. They had told her again that if she shipped me any fuel, even for cash that they would call her loan. I left Kermit, angry with the Kermit State Bank because the Bank's action hurt both Anell's business and my business.

Hoping that the Kermit State Bank would come to their senses and stop interfering with my contract with Anell, I made a third trip to Kermit. I was met by open hostility from Anell. She had totally adopted the Bank's attitude.

WTSB argues, as it did in the trial court, that Holdampf's affidavit is incompetent summary judgment evidence because it contains hearsay statements attributed to Anell Crudup. Under the Rules of Civil Procedure, supporting and opposing summary judgment affidavits must be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Tex.R.Civ.P. 166a(f); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Conclusions of the affiant that have no factual support are insufficient to raise an issue of fact, and hearsay statements contained in affidavits are not competent to serve as summary judgment evidence. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex. 1962).

Even considering Holdampf's hearsay-on-hearsay statements, however, his affidavit does not raise a fact issue as to each element of the tortious interference claim. Crudup told Holdampf that WTSB instructed her to cut off fuel shipments to Holdampf because his check for a previous shipment had not cleared. She later told Holdampf that WTSB told her not to ship fuel to him even on a cash basis. These statements do not show that WTSB had knowledge of the contract allegedly existing between Holdampf and B&D. Simply because WTSB instructed B&D not to sell fuel to Holdampf on a cash basis does not mean that Crudup informed the bank that she had a contract with Holdampf to sell him fuel for cash or that she and Holdampf had reached an agreement for payment on his debt. For the same reason, the affidavit does not show or raise a fact issue that WTSB intentionally interfered with the alleged agreement. Because Holdampf failed to raise a fact issue as to at least one element of his cause of action, the trial court did not err in granting summary judgment in favor of WTSB. Issue One is overruled.

JURISDICTION

In his second issue, Holdampf alleges that the amount of damages involved in this case is beyond the jurisdictional limits of the district court. Holdampf included this issue in the "Issues Presented" portion of his brief but he has not provided any argument or citation of authority to support it. Therefore, it is waived. Tex.R.App.P. 38.1(h); Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 276 (Tex.App.--El Paso 2001, pet. denied); City of Midland v. Sullivan, 33 S.W.3d 1, 17 (Tex.App.--El Paso 2000, pet. dism'd w.o.j.). Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court.

June 3, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

1. Anell Crudup is the president of B&D.