Boyce Producing Corp v. Fulton

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 2002
• Docket: 01-41505
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-41505 Summary Calendar

BOYCE PRODUCING CORP., a Corporation,

Plaintiff-Counter Defendant-Appellant,

UNION STAFF PROPERTIES, LLC,

Plaintiff-Appellant,

VERSUS

WILLIAM CLAYTON FULTON, an Individual; APACHE CORPORATION,

Defendants-Counter Claimants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas (4:00-CV-429)

June 24, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Boyce Producing Corporation(Boyce) appeals from the

dismissal of its claims against defendants William Clayton Fulton

and Apache Corporation on motions for summary judgment. The

Report and Recommendation of the magistrate judge, which was

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. adopted by the district court, found numerous alternative bases

for the failure of Boyce’s claims of tortious interference with

contract, tortious interference with contract relationships, and

tortious interference with prospective business advantages. We

affirm for the following reasons.

As an initial matter, like the magistrate, we recognize that

the claims of tortious interference with contract and tortious

interference with contract relationships are identical. See

Juliette Fowler Homes, Inc. V. Welch Associates, Inc., 793 S.W.2d

660, 664(Tex. 1990) and Holloway v. Skinner, 898 S.W.2d 793, 795-

96(Tex. 1995). Two additional decisions by the Texas Supreme

Court foreclose Boyce’s claims. First, in order to establish

liability for interference with a prospective contractual or

business relationship, the plaintiff must prove that it was

harmed by the defendant’s conduct that was either independently

tortious or unlawful. Independently tortious conduct is that

which would violate some independent tort duty. Wal-Mart Stores,

Inc. v. Sturges, 52 S.W.3d 711, 713(Tex. 2001). Boyce alleges no

independent tort committed by Apache or Fulton. Competing

legally for a single business opportunity is not by itself a

tort. Id.

Second, Boyce’s claim for tortious interference with a

contract must fail because the contract Boyce alleges was

interfered with, an oil and gas mineral lease, is not enforceable

as it does not satisfy the statute of frauds. Under Texas law, a

2 lease of real estate for a term longer than one year is not

enforceable unless the promise or agreement, or a memorandum of

it, is in writing and signed by the person to be charged with the

promise or agreement. Tex. Bus. & Com. § 26.01(Vernon’s 2002).

This provision is applicable to oil and gas mineral leases.

Mellette v. Hudstan Oil Corp., 243 S.W.2d 438(Tex. Civ. Appl.

1951), writ ref. n.r.e. According to Boyce, the basis for the

alleged oil and gas lease was a standard “Producer’s 88" form

amended by an Addendum A which had been negotiated between Boyce

and Fulton. However, it is undisputed that the form lease was

never exchanged between Boyce and Fulton. Our review of the

record reveals no writing in which Fulton agreed to the

Producer’s 88 form as the basis for the lease. Even if such

evidence exists, reference to a Producer’s 88 form lease is “as

incapable of definite application as if the term ‘oil and gas

lease form’ had been used instead.” Fagg v. Texas Co., 57 S.W.2d

87, 89(Tex. 1933). The lease form signed by Fulton with Apache

is labeled as a Producer’s 88 form and it is clearly not

identical to the form proposed by Boyce.

According to Trammel Crow Company No. 60 v. Harkinson, 944

S.W.2d 631(Tex. 1997), a claim to recover for tortious

interference with a contract deemed unenforceable by the Texas

legislature cannot stand. In Trammel Crow, the Texas Supreme

Court rendered a take nothing judgment against a broker claiming

tortious interference with an alleged contract for real estate

3 commissions. The statute at issue in that case, Tex. Rev. Stat.

Ann. art.6573(a), like § 26.01, requires that such agreements be

in writing and signed by the party to be charged in order to be

enforceable. As the mineral lease alleged by Boyce as the

contract allegedly interfered with does not satisfy the statutory

requirements established by the Texas legislature in the Texas

statute of frauds, it is unenforceable both directly and by means

of a claim of tortious interference.

Finding no error, we AFFIRM.