Hightower v. Kidde-Fenwal, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11314
PATRICK H. HIGHTOWER, individually and d/b/a P&D Consulting and
Contracting Engineers,
Plaintiff-Appellant-Cross-
Appellee,
versus
KIDDE-FENWAL, INC., d/b/a Chemetron Fire Systems, Inc.,
Defendant-Appellee-Cross-
Appellant,
______________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 04-CV-153-A
______________________
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Alleging tortious interference with contract, Patrick
Hightower sued Chemetron in district court. The court granted
summary judgment to Chemetron. We affirm.
Hightower beat out Chemetron in bidding to design and provide
a fire protection system for Alcom. There were significant
problems with his performance - Hightower ran late and provided
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
inadequate drawings for the system on multiple occasions. Alcom’s
parent company, Alcan, hired Chemetron, with which it had had a
long relationship, to review Hightower’s work. Chemetron’s reviews
were critical of his work, but Hightower points to only one
statement as false.
The district court stated, and Hightower does not contest on
appeal (aside from making a conclusory, unconvincing argument about
a three-inch valve), that the only real dispute regarding the
accuracy of the reviews stemmed from Chemetron’s statement that an
electronic relay selected by Hightower was an older design which
Chemetron had stopped using. Hightower claimed that this statement
was false and put him in a bad light. Hightower does not contest
the district court’s conclusion that the evidence here is
ambiguous; more importantly, he does not contest the court’s
conclusion that the ambiguity is irrelevant because Hightower never
contested what really mattered - that he was planning to use the
older relay. Thus, we consider Chemetron’s reviews to be accurate,
even if highly critical of Hightower.
After more delays and inadequate performance, Alcan directed
Alcom to fire Hightower, which it did.
The district court granted summary judgment to Chemetron after
concluding that it was privileged and justified1 in its actions
1
Privilege and justification are affirmative defenses to
tortious interference with contract in Texas. David L. Aldridge
Co. v. Microsoft Corp., 995 F. Supp. 728, 742 (S.D. Tex. 1998).
2
because its reviews were done pursuant to a reasonable request for
advice and were not false. We review de novo.2
We agree with the district court that there is no genuine
issue of material fact and that Chemetron is entitled to judgment
as a matter of law. Hightower argues that privilege and
justification are negated by “sharp dealing,” but even if this were
so, he has not shown any sharp dealing. Although relations between
the parties were acrimonious, allegations that Chemetron behaved
“unfairly,” “bellyached,” or spewed negative information about
Hightower are insufficient where there is no evidence that
Chemetron lied in its reviews of Hightower’s work. Similarly,
Hightower has not shown that Chemetron’s position as reviewer was
inherently unfair and should, as a matter of law, void the
affirmative defense.
The only specific action by Chemetron alleged by Hightower
that is arguably at the margin of privilege or justification is
Chemetron’s alleged October 22, 2001 bid for Hightower’s ongoing
project. Even if that allegation was supported by competent
evidence - the bid appeared in the record as an unauthenticated e-
mail - Hightower has pointed to no authority holding such a bid to
be per se tortious. At the time of the bid, Hightower was almost
2
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292
(5th Cir. 1998).
3
two months late and had presented inadequate drawings.3
For these reasons, the district court’s grant of summary
judgment to Chemetron is AFFIRMED. We need not and do not reach
Chemetron’s attack on Hightower’s evidence.
AFFIRMED.
3
Jack v. State, 694 S.W.2d 391, 398-99 (Tex. App. - San
Antonio 1985, writ ref’d n.r.e.) (holding that once a party has
materially breached a contract, the non-breaching party is excused
from further performance); see C.E. Servs. Inc. v. Control Data
Corp., 759 F.2d 1241, 1248 (5th Cir. 1985) (holding that inducing
a party to cease contractual relations when it has a right to do so
cannot be tortious).
4