David Moore and Lisa Moore v. Lisa Bushman and Integrity Land Services & Investments, LLC

Affirmed in Part; Reversed and Remanded in Part; Majority and Dissenting
Opinions filed August 30, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00986-CV
DAVID MOORE AND LISA MOORE, Appellants
V.
LISA BUSHMAN AND INTEGRITY LAND SERVICES & INVESTMENTS,
LLC, Appellees
On Appeal from the County Court
Waller County, Texas
Trial Court Cause No. C16-003
DISSENTING OPINION
I join the resolution and analysis of the Moores’ invasion of privacy and abuse
of process causes of action contained in the majority opinion but respectfully dissent
as to the resolution and analysis of their tortious interference and conspiracy causes
of action. Because the record on appeal does not contain more than a scintilla of
evidence supporting the Moores’ tortious interference and conspiracy causes of
action, I would affirm the trial court’s no-evidence summary judgment in its entirety.
Tortious Interference
The majority correctly sets forth both the standards of review for no-evidence
summary judgments and the law on tortious interference. It is the majority’s
application of these standards and law to the facts of this case with which I disagree.
As stated in the majority, the elements of a tortious interference with a contract
claim are (1) the existence of a contract subject to interference, (2) the occurrence of
an act of interference that was willful and intentional, (3) that the act was a proximate
cause of the plaintiff’s damage, and (4) that actual damage or loss occurred.
Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). Actionable interference
includes any act which retards, makes more difficult, or prevents performance.
Seelbach v. Clubb, 7 S.W.3d 749, 757 (Tex. App.—Texarkana 1999, pet. denied);
Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 573 (Tex. App.—
Houston [14th Dist.] 1983), aff’d in part, rev’d in part on other grounds, 704 S.W.2d
742 (Tex. 1986).
As the majority sets forth, the Moores rely on Lisa’s affidavit as well as an
affidavit from State Farm adjuster Ronald Lopez to support their tortious
interference claim. As to the first element, whether a valid contract existed, the
Moores offer no evidence of an insurance contract or its named insureds, effective
dates or coverages other than a statement in Lisa’s affidavit, “Ms. Bushman knew
we had a contract with State Farm Lloyd’s,” and a statement in Lopez’s affidavit, “I
served as the adjuster for the insurance claim [the Moores] submitted to State Farm
Lloyds.”
As to the third element, that Bushman’s interference was a proximate cause
of the Moores’ damages, Lopez’s affidavit and attached notes detail several
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communications Lopez had with Bushman and McCarty, but he does not say
anything about the impact, if any, these communications had on the handling of the
Moores’ claim. He simply notes that the communications occurred. In her affidavit,
Lisa complains that Bushman contacted State Farm Lloyd’s, and she then states:
“These were calls that my husband and I had [to] answer for to our agent, explaining
how we weren’t what she claimed us to be. Because of these calls we had to hire
legal counsel in order to get the claim we deserved.” These two sentences are the
entirety of the Moores’ offered proof on causation and damages.
Lisa fails to explain why it was supposedly necessary to hire an attorney. Did
Bushman’s phone calls to Lopez cause State Farm to initially deny the claim? Lisa
does not say. She simply asserts it is because I say it is. See, e.g., LMB, Ltd. v.
Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (concluding that an assertion that “the
conduct of [defendant] substantially caused [plaintiffs’] injuries and death” failed to
present underlying facts on which conclusion was based and was therefore no
evidence of causation); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.
2005) (explaining that proximate cause “cannot be established by mere conjecture,
guess, or speculation”).
Nothing in Lopez’s affidavit or notes suggests that the Moores’ claim was
denied, delayed, or otherwise made more difficult due to Bushman and McCarty’s
statements, much less that the Moores needed to hire counsel in order to obtain
payment on their claim. See Seelbach, 7 S.W.3d at 757; Bellefonte Underwriters,
663 S.W.2d at 573.
Proximate cause requires proof of both cause-in-fact and foreseeability. Doe
v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The test
for cause-in-fact is whether the tortious conduct was a substantial factor in bringing
about the alleged injury, i.e., a factor without which the injury would not have
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occurred. See id. Bushman’s conduct was not a substantial factor if it did no more
than furnish a condition that made the plaintiff’s injury possible. See Immobiliere
Jeuness Establissement v. Amegy Bank Nat’l Ass’n, 525 S.W.3d 875, 880 (Tex.
App.—Houston [14th Dist.] 2017, no pet.).
As to the fourth element, that actual damages were incurred, the Moores failed
to produce an affidavit, fee statement, or contract from an attorney, or any
correspondence or other documentation demonstrating that an attorney was actually
hired to assist with the claims process or, more importantly, that any payment has
been made to an attorney.
Instead, all the Moore’s provided were the two conclusory sentences in Lisa’s
affidavit. Conclusory affidavits are not probative. Starwood Mgmt., LLC v. Swaim,
530 S.W.3d 673, 679 (Tex. 2017). A conclusory statement is one that expresses a
factual inference without providing underlying facts to support such inference.
Padilla v. Metro. Transit Auth. of Harris Cty., 497 S.W.3d 78, 85–86 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). To avoid being conclusory, an affidavit must
contain specific factual bases, admissible in evidence, from which any inferences or
conclusions are drawn. See id. Affidavits containing conclusory statements that fail
to provide the underlying facts supporting those conclusions are not proper summary
judgment evidence. Id.; see also 5500 Griggs v. Famcor Oil, Inc., No. 14-15-00151-
CV, 2016 WL 3574649, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2016, no
pet.) (mem. op.) (“Conclusory statements in an affidavit unsupported by facts are
insufficient to support or defeat summary judgment.”).
At most, the Moores’ evidence did no more than create a mere surmise or
suspicion that Bushman and McCarty’s statements proximately caused damages;
accordingly, the trial court properly granted no-evidence summary judgment on the
Moore’s tortious interference cause of action. See Forbes Inc. v. Granada
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Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); see also Van Der Linden v.
Khan, 535 S.W.3d 179, 194–95 (Tex. App.—Fort Worth 2017, pet. filed) (holding
that once impermissible speculation was removed from the evidence, there was no
evidence that alleged acts of interference proximately caused the claimed damages).
I would therefore overrule the Moores’ second issue.
Conspiracy
As the majority correctly points out, conspiracy is a derivative tort, meaning
it depends upon proof of independent, underlying tortious conduct. See Tilton v.
Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Accordingly, we need not analyze the
grant of summary judgment against the civil conspiracy cause of action separately
from the underlying alleged torts of invasion of privacy, tortious interference of
contract, and abuse of process. See id. Because the trial court properly granted
summary judgment on each of those torts, it also properly granted summary
judgment on the civil conspiracy claim. I would therefore overrule the Moores’
fourth issue.
Because the record on appeal does not contain more than a scintilla of
evidence supporting any of the Moores’ causes of action, I would affirm the trial
court’s no-evidence summary judgment in its entirety.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Jamison, Busby, and Donovan (Donovan, J., majority).
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