Jon Richard O'Kane v. Jeff Coleman, Individually and Enterprise Rent-A-Car Company of Texas, Inc.

• Court: Court of Appeals of Texas
• Decided: July 1, 2008
• Docket: 14-06-00657-CV
• Status: Published

Opinion

Affirmed in part, Reversed and Remanded in Part, and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00657-CV

JON RICHARD O=KANE, Appellant

V.

JEFF COLEMAN, INDIVIDUALLY, AND ENTERPRISE RENT-A-CAR COMPANY OF TEXAS, INC., Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 05-CV-1113

M E M O R A N D U M   O P I N I O N

In this case arising from sequential leases of the same commercial premises, the initial lessee, appellant Jon Richard O=Kane appeals from a take-nothing summary judgment in favor of the subsequent lessees, appellees Jeff Coleman, individually, and Enterprise Rent‑A‑Car Company of Texas, Inc.  We affirm the judgment in favor of appellees on all claims except O=Kane=s claim under the Texas Theft Liability Act.  We sever that claim from the remaining claims, reverse the summary judgment in favor of appellees on O=Kane=s Theft Liability Act claim, and remand to the trial court.

I.  Factual and Procedural Background

In July 2003, O=Kane personally signed a two-year lease for commercial property in Galveston, with the term to begin August 1, 2003.  Unless the landlord agreed otherwise in writing, use of the premises was limited to Aautomobile sales and related services to automobiles.@  The lease also required O=Kane to Acomply with all applicable laws or requirements of any governmental entity@ and prohibited O=Kane from allowing the premises Ato remain vacant for a period of thirty (30) days without Landlord=s prior written consent except in cases necessitated by repair, maintenance or alteration.@  Finally, the lease could not be Amodified or amended in any manner whatsoever@ except on O=Kane=s and the landlord=s written agreement.

O=Kane, however, was a convicted felon, and had not held a dealer=s license from the Texas Department of Transportation (ATexDOT@) to sell new or used cars after his license expired.  Instead, to sell cars, he needed to be employed by a dealership with the proper license; and, in late 2001, he had associated himself with Pamela Nicar, who subsequently obtained an independent motor vehicle dealer=s license.  The license, which expired on July 31, 2004, entitled Nicar, under the name ADiscount Wholesalers,@ to sell cars at a specific location in Kemah, Texas.

O=Kane understood the Galveston lease required him to comply with all applicable laws, including TexDOT regulations.  Motor vehicle dealer=s licenses are specific to a geographic location, and Nicar=s license permitted her to sell new or used cars only at the specified Kemah location.^[1]  Nicar did not apply for a dealer=s license specific to the Galveston premises until August 19, 2003, again under the ADiscount Wholesalers@ name.  TexDOT denied Discount Wholesalers= application in September 2003.

Shortly after O=Kane took possession of the premises, the City of Galveston notified him that a local ordinance placed a moratorium on his having a car dealership on the property.  The landlord sought an exception to the moratorium, but the city denied the request.  The city staff members recommending the denial did Anot anticipate the continuation of auto sales facilities as a permitted land use within [the zone].@  Discount Wholesalers, however, had begun selling cars from the premises in July 2003 and continued to do so until September 20 or 25, 2003, during which time it sold approximately one-hundred-fifty cars.

According to O=Kane, a TexDOT Enforcement Division attorney instructed the Galveston County Tax Office not to accept any car titles Discount Wholesalers presented for registration.  Without the registration, customers could not obtain proper title or license plates.  They soon complained to the authorities, and the Galveston County Auto Crimes Task Force (the ATask Force@) began an investigation.  After discovering O=Kane and other Discount Wholesalers employees were counterfeiting temporary red‑tag license plates to mollify angry customers, the Task Force sought an arrest warrant for O=Kane and Nicar on felony forgery charges.

In mid-November 2003, O=Kane and Nicar fled to Mexico, where O=Kane stayed until September 1, 2004.  A Task Force sergeant observed that, as of October 21, 2003, A[t]here were no vehicles . . . for sale located on the premise[s].  The business was empty except for desks, computers, and filing cabinets.@

On January 23, 2004, Coleman and Enterprise Rent-A-Car signed a lease for the premises.  The lease provided in part:

Landlord represents and warrants to Tenant that all of the following are true as of the Lease Date and shall be true as of the Commencement Date:

(a) Landlord is the free owner of the Premises and has full right and lawful authority to execute this Lease and perform the obligations of Landlord herein contained without the consent or joinder of any other party . . . .

In July 2005, O=Kane sued the landlord alleging he Aentered [O=Kane=s] dealership, and removed thousands of dollars in value of [O=Kane=s] personal property, and thereby stole [O=Kane=s] Property.@  O=Kane claimed the landlord Akept in excess of $40,000 worth of his property locked inside his dealership,@ and Ain or about JanuaryBFebruary 2004@ the landlord Aassisted in the burglary of [O=Kane=s] business establishment in conjunction with Pamela Nicar, by permitting this person to pay a locksmith to make a key to the facility, enter, and remove property . . . .@

In August 2005, O=Kane sued Coleman and Enterprise Rent-A-Car.  In his first amended petition, he alleged civil conspiracy, aiding and abetting tortious interference with existing and future business relations and contracts, negligence, gross negligence, theft based on the illegal removal of O=Kane=s personal property from inside O=Kane=s locked business establishment, unlawful enrichment, unfair competition, trespass to real property, intrusion on seclusion, conversion, deliberate failure to act, and intentional infliction of emotional stress.  He also stated he was pleading under the doctrine of res ipsa loquitor.  In essence, O=Kane=s theories were (1) appellees Coleman and Enterprise Rent-A-Car had interfered with his business relationships by virtue of leasing the premises and conducting business there and (2) while O=Kane was in Mexico, appellees had stolen the remainder of O=Kane=s personal property not previously taken by Nicar and the landlord.

On February 17, 2006, appellees moved for summary judgment on each of O=Kane=s claims.  Appellees set the motion for submission on May 2, 2006.  On April 26, 2006, O=Kane filed his response to the motion; objections to, and a motion to strike, appellees=s summary judgment proof; a second amended petition; and a AMotion For The Court To Hold A Status Conference Hearing And Set A Docket Control Order And Outline The Discovery Timetable.@  Nothing in the record indicates O=Kane sought or received leave to file his second amended petition or his response and summary judgment proof.^[2]

The same day, O=Kane filed a motion for continuance, stating that he did Anot currently retain the Evidence [sic] to prove his case,@ and seeking an additional ninety days to conduct discovery.  In his motion and affidavit in support, O=Kane represented that, during the second burglary, appellees stole the records he needed to prove his case and failed to produce this evidence in discovery.  In addition to claiming that appellees stole these documents, O=Kane claimed appellees stole property Ain excess of $12,000 in value.@

On May 10, 2006, the district court entered written orders denying O=Kane=s (1) objections to, and motion to strike, appellees= summary judgment evidence, and (2) motion for continuance to conduct additional discovery.  The same day, the court also granted appellees= motion for summary judgment.  O=Kane then moved for a new trial.  Appellees responded and moved to strike O=Kane=s second amended petition.  The district court denied O=Kane=s motion for new trial on August 16, 2006, and O=Kane appealed.

Analysis of the Issues

Although O=Kane raises eight issues on appeal, they essentially reduce to the following four:  (1) whether the trial court erroneously granted summary judgment with prejudice on all his claims when, after appellees filed their motion for summary judgment, O=Kane filed an amended petition adding claims (issue one); (2) whether the trial court abused its discretion when it denied his first motion for continuance (issue two); (3) whether the trial court abused its discretion in overruling his objections to appellees= summary judgment proof (issue three); and (4) whether the trial court erroneously granted summary judgment against him on his claims for theft and tortious interference with contract (issues four through eight).  We address these issues below.^[3]

1.       Summary Judgment in Relation to O=Kane=s Second Amended Petition

In issue one, O=Kane contends:

[T]he trial court committed reversible and/or remand‑able [sic] error by abusing its discretion in dismissing Appellant=s new claims and entering a final appealable order when Appellant=s new claims were brought by Appellant filing an amended petition after Appellees filed their Motion for Summary Judgment but before the trial court entertained the motion, and ergo, the trial court incongruously dismissed Appellant=s new claims that were not encapsulated or addressed in the Appellees= Motion for Summary Judgment or by the Court and the Appellees never responded or answered to the new claims and the Appellant was unassailably prejudiced thereby.

The summary judgment was set for submission on May 2, 2006.  O=Kane filed his second amended petition on April 26, 2006, six days before the May 2 submission date.  There is nothing in the record from which this court can conclude O=Kane requested or received leave of the court to file his second amended petition.

Texas Rule of Civil Procedure 63 provides in part:

[A]any pleading . . . offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex. R. Civ. P. 63.  A summary judgment proceeding is a trial within the meaning of this rule.  Goswami v. Metro. Sav. and Loan, 751 S.W.2d 487, 490 (Tex. 1988).  Nevertheless, under the supreme court=s holding in Goswami, we must presume the trial court granted leave to file a late pleading even though the filer failed to request leave when:  (1) the record fails to show the trial court did not consider the amended pleading, and (2) there is not a sufficient showing of surprise or prejudice on the part of the opposing party.  Wilson v. Korthauer, 21 S.W.3d 573, 578 (Tex. App.CHouston [14th Dist.] 2000, pet. denied); see Goswami, 751 S.W.2d at 490.  Both of these negatively stated factors are present in the instant case.  For the reasons set forth in Goswami, we presume the trial court granted O=Kane leave to file his second amended petition.

A party may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding.  Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.CHouston [14th] Dist. 2003, pet. denied) (citing Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983)).  Thus, when a plaintiff, in his amended petition, asserts a new cause of action based on facts not alleged in the original petition, a court cannot say the defendant=s motion for summary judgment contemplated and embraced the additional claim in the amended petition. Id.  If, however, a motion for summary judgment is sufficiently broad to encompass later‑filed claims, the movant need not amend its motion.  Id.; see Wilson, 21 S.W.3d at 579.  For example, summary judgment is proper when a defendant has conclusively disproved an element central to all causes of action or an unaddressed cause of action derivative of the addressed causes of action.  See Dubose v. Worker=s Med., P.A., 117 S.W.3d 916, 922 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

O=Kane does not direct this court to newly alleged material facts in his second amended petition, and we have found none.  He contends only that he added Anew causes of action@ for AConcert of Action, Aiding and Abetting, liability under the Texas Theft Liability Act, and under the doctrine of Trespass ab Initio.@  We conclude appellees= summary judgment motion, addressed as it was to the causes of action alleged in O=Kane=s first amended petition, was sufficiently broad to encompass the additional allegations with the exception of the Theft Liability Act claim.

Concert of action.  It is questionable whether Texas law recognizes a concert of action theory of liability.  See Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996).  Moreover, as the Juhl court explained, concert of action Arequires at least a tacit agreement to participate in some tortious act, done in furtherance of a common goal or plan, and which causes injury. . . .  This has common elements with common law civil conspiracy, long a recognized tort in this state.@  Id. at 643B44.

O=Kane alleged civil conspiracy in his first amended petition.  In their summary judgment motion, appellees contended the summary judgment proof negated the causation and meeting-of-the-mind elements of civil conspiracy.  Assuming without deciding Texas recognizes concert of action, we conclude appellees= summary judgment motion was sufficiently broad to encompass that claim.

Aiding and abetting.  In addition to alleging civil conspiracy in his first amended petition, O=Kane also alleged aiding and abetting tortious interference with existing and future business relations and contracts.  O=Kane does not cite any Texas law recognizing aiding and abetting as a cause of action separate from conspiracy or separate from the underlying wrongful act, and we have found none.  See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 n.7 (Tex. 2001) (because of disposition of case, not considering whether Texas law recognizes cause of action for Aaiding and abetting@ fraud separate and apart from a conspiracy claim).  In their summary judgment motion, appellees contended that the summary judgment proof conclusively (1) negated the causation and meeting-of-the-mind elements of civil conspiracy, (2) negated the causation and interference elements of tortious interference with contract, and (3) established the affirmative defense of privilege to the tortious interference claim.  We conclude appellees= summary judgment motion was sufficiently broad to encompass O=Kane=s theory of aiding and abetting.

Trespass ab initio.  In his first amended petition, O=Kane alleged trespass to real property.  Trespass ab initio merely refers to the doctrine that a person who enters on real property lawfully pursuant to conditional or restricted consent, but remains after his right to possession terminates and demand is made for his removal, becomes a trespasser from the beginning; the law then operates retrospectively to defeat all acts he did under color of lawful authority.  Williams v. Garnett, 608 S.W.2d 794, 797 (Tex. Civ. App.CWaco 1980, no writ).  In their summary judgment motion, appellees contended the summary judgment proof conclusively negated the elements of (1) causation and (2) O=Kane=s lawful right to possess the premises at the time appellees entered the property.  They also argued the summary judgment proof established their justification to enter based on the landlord=s consent.  We conclude appellees= summary judgment motion was sufficiently broad to encompass O=Kane=s theory of trespass ab initio.

 Liability under the Texas Theft Liability Act.   In his first amended petition, O=Kane alleged conversion.  In their summary judgment motion, appellees argued the summary judgment proof conclusively negated the causation element in relation to conversion, but the proof on which appellees relied related to the business failure of Discount Wholesalers, not to O=Kane=s alleged loss of his personal property.

In his first amended petition, O=Kane also claimed theft based on the alleged illegal removal of his personal property from inside his locked business establishment.  The appellees responded to this allegation solely on the ground that O=Kane was apparently anchoring his claim to Civil Practice and Remedies Code section 33.001 to 33.003, and these sections do not create an independent cause of action.  See Tex. Civ. Prac. & Rem. Code '' 33.001B003 (setting forth rules governing proportionate responsibility).  The appellees did not otherwise address O=Kane=s theft allegation.

Under the Texas Theft Liability Act, A>Theft= means unlawfully appropriating property . . . as described by Section 31.03 . . . Penal Code.@  Tex. Civ. Prac. & Rem. Code  ' 134.002(2).  Under Penal Code section 31.03, a person commits theft Aif he unlawfully appropriates property with intent to deprive the owner of property. . . .  Appropriation of property is unlawful if (1) it is without the owner=s effective consent; [or] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another . . . .@  Tex. Penal Code ' 31.03(a)B(b).  Appellees= summary judgment argument and proof did not address any of these elements or establish any defense to O=Kane=s Theft Liability Act claim.  We conclude appellees= summary judgment motion did not encompass O=Kane=s Theft Liability Act claim.

To summarize, we conclude appellees= summary judgment motion was sufficiently broad to encompass O=Kane=s claims or theories of concert of action, aiding and abetting, and trespass ab initio.  We therefore overrule his first issue relative to those claims or theories.  But, we conclude appellees= summary judgment motion was not sufficiently broad to encompass O=Kane=s claim under the Texas Theft Liability Act.  We therefore sustain his first issue solely as it relates to that claim.

2.       Denial of O=Kane=s Motion for Continuance

In issue two, O=Kane contends:

[T]he trial court committed reversible and/or remand‑able [sic] error by abusing its discretion in denying [O=Kane=s] First Motion for Continuance because [O=Kane] meet [sic] all the necessary prongs in his First Motion for Continuance to entitle him to a continuance and [O=Kane=s] sworn facts mandating a continuance were uncontroverted the trial court did not retain discretion to reject [O=Kane=s] sworn facts and deny the Motion for Continuance and [O=Kane] was undeniably prejudiced thereby.

The trial court=s denial of the motion for continuance is subject to a clear-abuse-of-discretion standard of review.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Id.  A nonexclusive list of factors we consider in deciding whether a court has abused its discretion in denying a motion for continuance to conduct further discovery includes (1) the length of time the case has been on file, (2) the materiality and purpose of the discovery sought, and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.  Id.

When O=Kane filed his motion for continuance, the case had been on file for over eight months, and appellees= summary judgment motion had been on file for over two months.  Additionally, O=Kane received thirty-nine days= notice of the summary judgment hearing.  When a party has received the twenty-one days= notice required by Texas Rule of Civil Procedure 166a(c) for a traditional motion for summary judgment, the trial court generally does not abuse its discretion in denying a motion for continuance.  Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

In his supporting affidavit, O=Kane set forth a list of fifteen assertions he believed the evidence he sought would establish.  He did not, however, describe the evidence itself or further explain its materiality.  See id. (AA party seeking more time to oppose a summary judgment must file an affidavit describing the evidence sought, explaining its materiality, and showing the due diligence used to obtain the evidence.@); Lee v. Haynes & Boone, L.L.P., 129 S.W.3d 192, 198 (Tex. App.CDallas 2004, pet. denied) (observing party requesting continuance had not provided any specifics about what documents she anticipated).

Finally, O=Kane merely represented that he had been diligent in his discovery requests and appellees wrongfully objected to, and denied, those requests.^[4]  O=Kane did not specify when he had requested discovery, what he had requested, or what he had been denied.  He did not aver he had filed a motion to compel discovery.  See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800B01 (Tex. 2002) (holding no abuse of discretion in denial of motion to continue special appearance hearing when, among other matters, record did not reveal party had ever filed a motion to compel or otherwise attempted to obtain any discovery not provided).

We conclude the trial court did not clearly abuse its discretion when it denied O=Kane=s motion for continuance.^[5]  We therefore overrule O=Kane=s second issue.

3.       Denial of O=Kane=s Objections to Appellees= Summary Judgment Proof

In issue three, O=Kane contends:

[T]he trial court committed reversible and/or remand‑able [sic] error by abusing its discretion in overruling [O=Kane=s] Objections to Appellee=s summary judgment evidence and thereby denying [O=Kane=s] Motion to Strike and Granting Appellee=s Motion for Summary Judgment based on incompetent summary judgment evidence when it is conspicuously apparent that [O=Kane] was prejudiced thereby.

An appellate court applies an abuse-of-discretion standard to review a trial court=s decision to admit or exclude summary judgment proof.  See Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.CDallas 2007, no pet.); Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex. App.CAustin 1998, pet. denied).  To obtain reversal, O=Kane bears the burden of establishing that any error in admitting the summary‑judgment evidence of which he complains was reasonably calculated to, and probably did, cause rendition of an improper judgment.  See Sanders, 970 S.W.2d at 727B28 (holding appellant failed to meet burden).  O=Kane specifically complains about admission of (1) segments of O=Kane=s own deposition testimony, (2) TexDOT Motor Vehicle Board=s original petition in its proceeding against O=Kane and Nicar, and (3) Coleman=s affidavit.

O=Kane=s deposition.  O=Kane argues his deposition testimony was inadmissible under Texas Rule of Civil Procedure 193.4(c), which provides, AA party may not useCat any hearing or trialCmaterial or information withheld from discovery under a claim of privilege, including a claim sustained by the court, without timely amending or supplementing the party=s response to that discovery.@  Tex. R. Civ. P. 193.4(c).  He also relies on the following provision: AA party need not request a ruling on that party=s own objection or assertion of privilege to preserve the objection or privilege.@  Tex. R. Civ. P. 193.4(b).  He then reasons that answers to deposition questions to which he objected were inadmissible.  Rule 193.4, however, on its face does not apply to appellees= use of O=Kane=s deposition testimony because appellees never claimed a privilege in relation to that testimony and there is no indication they withheld it from discovery.  The trial court did not abuse its discretion in overruling his objection to this summary judgment proof.

The TexDOT Motor Vehicle Board=s original petition in In re License(s) of Pamela Dawn Nicar, and Jon O=Kane, general manager jointly and severally, d/b/a/ Discount Wholesalers.  As he did in the trial court, O=Kane lists five objections to this document:  (1) lack of notarization and certification, (2) presence of excisions, (3) allegation the petition had been dismissed,  (4) lack of TexDOT=s authority to proceed against him, and (5) improper purpose on the part of appellees.  O=Kane represented to the trial court and to this Court that the dismissal order was attached as an exhibit to his objection, but the citation he provides is for the petition, not the dismissal order, and the dismissal order is not part of the record before this court.  O=Kane cites no law in support of exclusion of this document other than Pretzer v. Motor Vehicle Board, in which the court held that the Texas Motor Vehicle Board has no statutory authority to sanction persons who neither hold, nor are required to hold, a license from the Board, for engaging in conduct prohibited only to license holders and applicants.  138 S.W.3d 908, 909 (Tex. 2004) (per curiam).  O=Kane waived error in relation to this objection. See Tex. R. App. P. 38.1(h) (requiring appellant=s brief to contain clear and concise argument for contentions made, with appropriate citations to authorities and record); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).

Coleman=s affidavit.  As he did in the trial court, O=Kane objects to the following portions of Jeff Coleman=s affidavit:

Enterprise executed its lease for the Leased Premises on January 23, 2004.  Prior to that time, I was not aware of any dispute or litigation between the owners of the Leased Premises and Jon O=Kane.

I have never had any knowledge about Jon O=Kane=s present or planned business dealings or contractual relationships with third parties.

The owners of the Leased Premises never discussed or mentioned that their intent was to unlawfully lease the Leased Premises to Enterprise and thereby harm Jon O=Kane. I made no such agreement on behalf of Enterprise to participate in such a plan.

By leasing the Leased Premises, Enterprise intended to operate a rental car business, not invade Jon O=Kane=s privacy.

O=Kane correctly contends Colman=s statements are those of an interested witness.  A court may base summary judgment on testimonial evidence of an interested witness only if the evidence is (1) uncontroverted, (2) clear, positive and direct, (3) otherwise credible and free from contradictions and inconsistencies, and (4) capable of being readily controverted.  See Tex. R. Civ. P. 166a(c).

Here, however, Coleman=s affidavit was only one of ten exhibits supporting appellees= summary judgment motion.  With the exception of the Theft Liability Act claim, appellees challenged each of O=Kane=s claims by arguing that the summary judgment proof conclusively disproved the necessary element of causation.  Appellees did not rely in any way on Coleman=s affidavit to disprove causation.  In response to O=Kane=s claim of tortious interference with contract, appellees argued that the summary judgment proof conclusively (1) negated the existence of a valid contract, (2) negated causation of damages, and (3) established privilege in relation to any interference.  In response to O=Kane=s claim of tortious interference with prospective contracts, appellees argued that the summary judgment proof conclusively disproved (1) a reasonable probability of business relationships with third persons, and (2) commission of an independent tort.  Appellees did not rely in any way on Coleman=s affidavit to support these arguments.^[6]

The trial court did not state the basis on which it granted summary judgment in favor of appellees on each of O=Kane=s claims.^[7]  To the extent the trial court granted summary judgment based on a meritorious ground that did not depend on Coleman=s affidavit, the trial court=s denial of O=Kane=s objections to Coleman=s affidavitCeven if an abuse of discretionCwas not reasonably calculated to, and did not probably, cause rendition of an improper judgment.  See Sanders, 970 S.W.2d at 727.

The trial court=s denial of O=Kane=s objections and motion to strike appellees= summary judgment proof did not result in reversible error.  We therefore overrule O=Kane=s third issue.

4.       Summary Judgment on Tortious Interference with Contract

In issue four, O=Kane challenges the summary judgment against him to the extent judgment was granted because appellees conclusively disproved that they caused O=Kane=s damages in relation to his theft and tortious-interference-with-contract claims.^[8]  In issues five through eight, O=Kane challenges summary judgment against him on his tortious-interference-with-contract claim to the extent judgment was granted on the grounds that appellees had conclusively disproved the elements of existence of a valid contract (issues five and six), and (2) willful and intentional interference (issue seven), and had conclusively proved their affirmative defense of privilege (issue eight).^[9]  As discussed below, we hold that appellees conclusively proved their defense of privilege.  Accordingly, we overrule O=Kane=s eighth issue and need not address his remaining issues.

Summary judgment standards and standard of review.  A trial court may render summary judgment only if the record shows an absence of a genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).  A defendant is entitled to summary judgment only if he (1) negates at least one element of each of the plaintiff=s causes of action, or (2) conclusively establishes each element of an affirmative defense to each claim.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  An element is conclusively proved if ordinary minds could not differ as to the conclusion to be drawn from the evidence.  Triton Oil & Gas Corp. v. Marine Contractors & Supply Inc., 644 S.W.2d 443, 446 (Tex. 1982).

In deciding whether a disputed issue of material fact exists precluding summary judgment, we take as true evidence favorable to the non‑movant.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985).  We must indulge every reasonable inference in favor of the non‑movant and resolve any doubt in his favor.  Id. at 549.  A summary judgment must stand or fall on the grounds expressly presented in the motion.  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339B41 (Tex. 1993).  When, as in this case, the trial court=s order does not specify the grounds on which it granted the motion for summary judgment, we will affirm the summary judgment if any of the theories advanced in the motion is meritorious.   Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).  Thus, for O=Kane to obtain reversal of the summary judgment on his tortious-interference-with-contract claim, he must show each independent ground alleged in appellees= motion was insufficient to support the judgment.  See Granada Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 224 (Tex. App.CAmarillo 1997, pet. denied).

Summary judgment proof conclusively establishing appellees= defense of privilege.  The elements of tortious interference with 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, 856B57 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (citing Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998)).  Even if the plaintiff establishes all the elements of a claim for tortious interference with a contract, the defendant may avoid liability if it establishes the elements of the defense of justification.  Id. at 857 (citing Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77B78 (Tex. 2000)).  A[T]he justification defense can be based on the exercise of either (1) one=s own legal rights or (2) a good‑faith claim to a colorable legal right, even though that claim ultimately proves to be mistaken.@  Fin. Review Servs., 29 S.W.3d at 80.  If a trial court finds as a matter of law the defendant had a legal right to interfere with a contract, the defendant has conclusively established the justification defense, and the motive is irrelevant.  Id.

The gravamen of O=Kane=s toritious-interference-with-contract claim is that appellees usurped O=Kane=s Alegal business premises to which he retained a legal valid contract@ (1) by wrongfully and illegally obtaining the rights to O=Kane=s dealership facility, which he had legally leased from the landlord, and (2) by causing O=Kane to be unable to use his dealership facility and earn profits from its use.  Thus, appellees= act of which O=Kane complains is their occupancy of the premises.

To support their defense of privilege, appellees attached their sixty-month lease for the premises, dated January 23, 2004.  The lease contained the following representation:   ALandlord is the free owner of the Premises and has full right and lawful authority to execute this Lease and perform the obligations of Landlord herein contained without the consent or joinder of any other party. . . .@^[10]  The lease further provided, ALandlord agrees that, so long as Tenant is paying the Rent and performing its other obligations under this Lease, Tenant will peaceably and quietly have, hold and enjoy the Premises throughout the term.@  O=Kane does not argue that the contract failed unambiguously to grant appellees the right to occupy the property.  See Landry=s Seafood Rests., Inc. v. Waterfront Cafe, Inc., 49 S.W.3d 544, 549 (Tex. App.CAustin 2001, pet. dism=d) (agreeing any contractual right to interfere must exist as a matter of law pursuant to an unambiguous contract).  Appellees= alleged interference was therefore based on their own contractual right to occupy the premises.

O=Kane, however, argues that appellees did not act in good faith because they knew of O=Kane=s lease.^[11]  AThe issue of the defendant=s good faith is pertinent only if the court determines the defendant had a colorable right, but not a privilege, to engage in the conduct claimed to have interfered with a contract.@  Fin. Review Servs., 29 S.W.3d at 80.

We conclude that appellees= theory of privilege merited summary judgment in their favor on O=Kane=s claim for tortious interference with contract.  We therefore overrule O=Kane=s eighth issue.  Given our disposition of this issue, we need not address O=Kane=s issues four through seven.  See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).

Conclusion

Having concluded that appellees= summary judgment motion was not sufficiently broad to cover O=Kane=s Texas Theft Liability Act claim, we reverse the trial court=s summary judgment in favor of appellees on that claim, sever that portion of the court=s judgment, and remand the case to the trial court for further proceedings as to the Texas Theft Liability Act claim. We affirm the remainder of the judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

---

^[1]  See Tex. Occ. Code ' 2301.257(c) (AA franchised dealer must apply for a separate license under this section for each separate and distinct dealership as determined by the board. Before changing a location, a dealer must obtain a new license for that location.@).

^[2]  See Tex. R. Civ. P. 166a(c) (AExcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.@).  On May 4, 2006, O=Kane filed another ASecond Amended Petition,@ identical to the one filed April 26, 2006.

^[3]  O=Kane does not present an issue under Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).  He does not challenge the merits of the summary judgment against him on any claims other than theft and tortious interference with contract.

^[4]  O=Kane also averred Coleman had stolen the documents he needed.

^[5]  O=Kane argues he was entitled to a continuance because he met all the mandatory Aprongs@ and his supporting affidavit was uncontroverted.  We disagree.  See Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, 858 (1952) (AThere is nothing in the rules on continuance requiring the granting of a first motion merely because it is in statutory form and is not controverted by affidavit of the opposite party.@).

^[6]  Appellees did use Coleman=s affidavit to support the additional argument they had no knowledge of O=Kane=s lease to defeat the intent element of both tortious interference with contract and tortious interference with prospective contracts.

^[7]  When a trial court=s order granting summary judgment does not specify the ground or grounds on which it relied for its ruling, we will affirm the summary judgment on appeal if any of the theories advanced are meritorious.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

^[8]  As discussed above, in response to O=Kane=s first issue, we have concluded that appellees= summary judgment motion was not sufficiently broad to encompass the Texas Theft Liability Act claim raised in O=Kane=s second amended petition.  We therefore reversed judgment in favor of appellees on this claim and remanded it to the trial court.  Because of our disposition O=Kane=s first issue, we need not address his fourth issue in relation to the Theft Liability Act claim.

^[9]  Although, on appeal, O=Kane refers generally to his Atortious interference claim,@ he does not address appellees= summary judgment arguments or proof in relation to his claim of tortious interference with future business  relationships.  The elements of that claim are (1) a reasonable probability that the parties would have entered into a contractual relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant's interference.  Le Meridien Hotels & Resorts v. LaSalle Hotel Operating P=ship, I, L.P., 141 S.W.3d 870, 879 n.4 (Tex. App.CDallas 2004, no pet.).

^[10]  To support their argument that they conclusively disproved the element of the existence of a valid contract, appellees attached O=Kane=s lease, the Task Force=s application for an arrest warrant, and O=Kane=s deposition, which established, that by January 2004, O=Kane had breached his lease by permitting the premises to remain vacant for a period of thirty days without the landlord=s prior written consent.

^[11]  In his argument on privilege, O=Kane also asserts, without development or record support, AThe Appellant=s dealership was filled with tens of thousands of dollar [sic] in value of the Appellant=s personal property to [sic] which the Appellee burglarized and stole same.@