Texas Disposal Systems Landfill, Inc. v. Waste Management Holdings, Inc. (f/K/A Waste Management, Inc.) and Waste Management of Texas, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00631-CV

Texas Disposal Systems Landfill, Inc., Appellant

v.

Waste Management Holdings, Inc. (f/k/a Waste Management, Inc.) and Waste
Management of Texas, Inc., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 97-12163, HONORABLE PAUL DAVIS, JUDGE PRESIDING

OPINION

Texas Disposal Systems Landfill, Inc. (Texas Disposal) appeals a take-nothing

judgment in three issues: (1) whether the district court erred when it failed to instruct the jury on

defamation per se and presumed damages; (2) whether the jury’s award of zero damages was against

the great weight and preponderance of the evidence; and (3) whether the district court improperly

dismissed its defamation, attempted monopoly, and tortious interference claims on summary

judgment. In a cross point, appellee Waste Management, Inc. (Waste Management) claims that

Texas Disposal’s surviving defamation claim must fail because Texas Disposal did not meet its

burden to prove by clear and convincing evidence that its initial claim for defamatory

communication was made with actual malice. We overrule Texas Disposal’s issues and Waste

Management’s cross point and affirm the district court’s judgment.
 BACKGROUND

Texas Disposal competes with Waste Management in the waste removal and landfill

services industry in the Austin and San Antonio markets. In May 1995, Texas Disposal and the City

of San Antonio started negotiating a contract that contemplated Texas Disposal assuming

responsibility for a waste transfer station and hauling waste to its landfill, starting in February 1997.

Contemporaneously, Texas Disposal responded to a City of Austin request for proposal to accept and

dispose of its municipal solid waste.

On January 30, 1997, a Waste Management consultant faxed an “Action Alert” memo

to environmental and community leaders in Austin that questioned the environmental integrity of

Texas Disposal’s landfill and requested that the memo recipients discourage San Antonio officials

from sending waste to that landfill. Texas Disposal concluded its negotiations with San Antonio in

January 1998 and was awarded the waste disposal services contract. Texas Disposal signed a

separate waste disposal contract with Austin in 1999.

Texas Disposal filed its initial defamation suit in October 1997, alleging that the

Action Alert was defamatory and caused damages related to the delay in securing both the San

Antonio and Austin waste disposal contracts. After this initial suit was filed, Waste Management

published a series of communications that we will collectively refer to as the “1998

Communications.” Waste Management sent a letter (Drenth Letter) to the San Antonio Public

Works Department on March 10, 1998, questioning zoning and other issues related to Texas

Disposal’s trash transfer facility. In May 1998, Waste Management sent a separate anonymous letter

(Unsigned Memo) to the TNRCC criticizing Texas Disposal. This memo was distributed to San

2
Antonio council members, in what Texas Disposal characterizes as an effort to persuade the council

to remove Texas Disposal’s right to operate its trash transfer facility in San Antonio. On July 14,

1998, Waste Management distributed a press release that Texas Disposal claims falsely accused it

of organizing a protest in an effort to discredit Waste Management before the Austin contract was

awarded. Another Waste Management document compared Texas Disposal’s landfill to an “unlined

trench,” implying Texas Disposal’s facility was not environmentally sound.

Texas Disposal also alleges that in 1993, agents of Waste Management encouraged

the publication of newspaper articles that criticized waste disposal at the Texas Disposal landfill, that

in 1995 and 1996, a consultant billed Waste Management for time spent on issues related to the

agreement between San Antonio and Texas Disposal, and that Waste Management hired a lobbyist

and offered him incentive compensation if the lobbyist could prevent Texas Disposal from obtaining

business from San Antonio. Waste Management admitted that its ultimate goal was to close the San

Antonio waste transfer facility. Texas Disposal implied that ceasing to operate the San Antonio

facility would result in crippling its ability to do business there.

Texas Disposal filed an amended petition on July 25, 2000 that included claims based

on the 1998 Communications, characterizing the acts as an “ongoing pattern of conduct.” The

district court granted Waste Management’s motion for summary judgment and dismissed the claims

based on the 1998 Communications, holding that these claims were barred by the statute of

limitations. It also ruled, as a matter of law, that the Action Alert was defamatory. As a result of

the summary judgment, the Action Alert defamation claim was the only claim left for trial. Although

the jury found that the Action Alert was false, and that Waste Management knew that the statement

3
was false or acted with reckless disregard for the truth, nevertheless, the jury awarded Texas

Disposal zero dollars in damages. Texas Disposal brings this appeal.

DISCUSSION

Texas Disposal appeals this case in three issues: (1) whether the district court erred

in refusing to instruct the jury on presumed damages; (2) whether the jury’s finding of zero damages

is factually sufficient; and (3) whether the district court properly dismissed on summary judgment

its claims based on the 1998 Communications, and its attempted monopolization and tortious

interference claims. In a cross point, Waste Management challenges the factual sufficiency of the

jury’s finding that Waste Management published the Action Alert with actual malice and argues that

Texas Disposal did not meet its burden to show actual malice by clear and convincing evidence.

Jury Instruction

In its first issue, Texas Disposal asserts that the district court erred in refusing to

instruct the jury on defamation per se. We disagree.

Under Texas law, a statement is defamatory if it tends to injure a person’s reputation

and thereby expose the person to public hatred, contempt, ridicule, or financial injury, or to impeach

any person’s honesty, integrity, virtue, or reputation. See Tex. Civ. Prac. & Rem. Code Ann.

§ 73.001 (West 1997). A statement is defamation per se if the words are so obviously hurtful to the

person aggrieved that they require no proof of their injurious character to make them actionable.

Knox v. Taylor, 992 S.W.2d 40, 50 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The statement

must be unambiguously defamatory per se on its face, either (1) alleging criminal conduct, or (2)

4
injuring a person in his office, business, profession, or occupation. Knox, 992 S.W.2d at 50, Kelly

v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex. App.—Corpus Christi 1992, writ ref’d).

Deciding whether a statement is defamatory per se is the exclusive province of the

court, not of the jury. West Texas Utils. Co. v. Wills, 164 S.W.2d 405, 411 (Tex. Civ. App.—Austin

1942, no writ). It is strictly a question of law whether the words are defamatory per se, but it may

be a fact question for a jury to determine whether the statement was published or to resolve the

meaning of the statement. Id. at 411.

The distinction between defamation and defamation per se is critical when it comes

to the issue of damages. See Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1331 (5th Cir. 1993)

(applying Texas law). In a defamation action, plaintiffs must show damages by a preponderance of

the evidence; however, in a defamation per se claim, damages are presumed, and thus plaintiffs need

not present evidence of damages. See id.

The district court denied Texas Disposal’s motions for summary judgment and for

directed verdict, declining to find that the Action Alert was defamatory per se as a matter of law.

Because deciding whether a statement is defamatory per se is the exclusive province of the court,

and because Texas Disposal does not argue that there are fact issues related to defamation per se for

the jury to resolve, such as whether the statement had been published or whether the jury needed to

resolve the meaning of the statement, the district court properly declined to instruct the jury on

defamation per se and its associated presumed damages. See West Texas Utils. Co., 164 S.W.2d at

411.

Although Texas Disposal challenges the propriety of the omission of a presumed

damages jury instruction, in essence Texas Disposal’s challenge appears to collaterally attack the

5
district court’s defamation per se rulings. Texas Disposal does not appear to have preserved the

issue of whether the district court erred when it declined to find the Action Alert defamatory per se.

The appellant’s brief must state concisely all issues or points presented for review. Tex. R. App. P.

38.1(e). An issue presented in an appellant’s brief is sufficient if it directs the attention of the

appellate court to the error about which the complaint is made. Bankhead v. Maddox, 135 S.W.3d

162, 163 (Tex. App.—Tyler 2004, no pet.). In its review of a civil matter, an appellate court has no

discretion to consider an issue not raised in the appellant’s brief even if the ends of justice so require.

Id. at 164. Because Texas Disposal does not directly challenge the district court’s rulings as a point

of error in its brief, we need not address whether the district court properly declined to find

defamation per se as a matter of law. See Tex. R. App. P. 38.1(e); Bankhead, 135 S.W.3d at 163-64.

We overrule Texas Disposal’s first issue.

Damages Award

In its second issue, Texas Disposal challenges the factual sufficiency of the jury’s

finding of zero damages and asserts that the verdict is contrary to the great weight and preponderance

of the evidence. Texas Disposal requests that we reverse the jury’s verdict on damages.

If a jury’s verdict is so against the great weight and preponderance of the evidence

as to be manifestly unjust, the appellate court will reverse the judgment. In re King’s Estate, 224

S.W.2d 660, 661 (Tex. 1951). A jury may not ignore undisputed facts and arbitrarily fix an amount

of damages that is unfair or unjust. Horton v. Denny’s, Inc., 128 S.W.3d 259, 260 (Tex.

App.—Tyler 2003, pet. denied). In reviewing a factual sufficiency point, the court of appeals must

consider all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

6
 The jury question at issue asked jurors to assign an amount of damages that would

compensate Texas Disposal for any injuries proximately caused by the publication of the Action

Alert. The jurors returned a finding of zero damages.

Texas Disposal presented evidence at trial that demonstrated that it was entitled to

approximately $1.8 million in damages, including lost profits, about $450,000 in consultant fees paid

to rebut and mitigate the alleged harm caused by the Action Alert, and about $305,000 in equipment

carrying costs incurred while Texas Disposal awaited the execution of the contracts. Although at

trial it attacked only a small category of the alleged damages, Waste Management presented evidence

that (1) showed the Action Alert did not proximately cause delays in executing the contracts; (2)

Texas Disposal was not entitled to recover damages related to mitigation; and (3) discredited a

portion of the damages testimony provided by Texas Disposal’s chief executive officer during cross-

examination. A jury could reasonably conclude that Texas Disposal had not satisfied its burden on

the proximate cause issue. Because the jury’s damages finding does not go against the great weight

and preponderance of the evidence, we hold that the evidence was factually sufficient to support the

jury’s finding of zero damages and overrule Texas Disposal’s second issue.

Summary Judgment

In its third issue, Texas Disposal asserts that the district court erred when it dismissed

its claims related to the 1998 Communications, antitrust violations, and tortious interference of

existing and prospective contractual relations on summary judgment. We examine each subissue

in turn.

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1998 Communications Claims

In its first subissue, Texas Disposal claims the district court erred in granting Waste

Management summary judgment on Texas Disposal’s 1998 Communications claims based on the

statute of limitations. Texas Disposal advances two arguments to support its position. First, it

argues that the 1998 Communications “relate back” to its original petition because they were part

of a pattern of continuing wrongful conduct that started with the improper actions alleged in the

original petition. Second, Texas Disposal argues that even if the claims do not relate back, the

claims are not barred by the statute of limitations because the claims arise from a continuing tort.

We address each argument in turn.

The court of appeals reviews a district court’s grant of summary judgment de novo.

McCarthy Bros. Co. v. Continental Lloyds Ins. Co., 7 S.W.3d 727, 728 (Tex. App.—Austin 1999,

no pet.). In a summary judgment case, the issue on appeal is whether the movant met its summary

judgment burden by establishing that no genuine issue of material fact exists and that the movant is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d

928, 929 (Tex. 1996). The burden of proof is on the movant, and all doubts about the existence of

a genuine issue of material fact are resolved against the movant. Friendswood Dev. Co. v. McDade

& Co., 926 S.W.2d 280, 282 (Tex. 1996); Great Am. Reserve Ins. Co. v. San Antonio Plumbing

Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Therefore, we must view the evidence and reasonable

inferences drawn therefrom in the light most favorable to the nonmovant. See Great Am. Reserve

Ins. Co., 391 S.W.2d at 47.

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 The statute of limitations is an affirmative defense, and a defendant is entitled to

summary judgment on an affirmative defense if the defendant disproves at least one element of the

plaintiff’s claims as a matter of law, or conclusively proves all the elements of the affirmative

defense. Friendswood Dev. Co., 926 S.W.2d at 282; Akin v. Santa Clara Land Co., 34 S.W.3d 334,

340 (Tex. App.—San Antonio 2000, pet. denied). To obtain summary judgment based on an

affirmative defense, the defendant-movant must present summary judgment evidence that

conclusively establishes each element of the affirmative defense as a matter of law. Friendswood

Dev. Co., 926 S.W.2d at 282.

Texas Disposal first argues that the 1998 Communications relate back to its original

petition because they are part of a pattern of continuing wrongful conduct that commenced with the

actions that formed the basis of the original petition, not isolated acts. We disagree.

The statute of limitations is one year for defamation claims and two years for tortious

interference with business relations and business disparagement. Tex. Civ. Prac. & Rem. Code Ann.

§§ 16.002(a), 16.003 (West 1997). The claims based on the 1998 Communications, (the Drenth

Letter, sent on March 10, 1998, the Unsigned Memo, sent in May 1998, and a press release

distributed on July 14, 1998) would have accrued on March 10, 1998, in May 1998, and on July 14,

1998. Thus, the statute of limitations for the defamation claims based on each communication would

have expired on March 10, 1999, in May 1999, and on July 14, 1999, respectively; the statute of

limitations for the tortious interference claims would have expired on March 10, 2000, in May of

2000, and on July 14, 2000, respectively. See id. §§ 16.002(a), 16.003, 16.068. Texas Disposal did

not amend its petition until July 25, 2000, after the statute of limitations for all of the alleged actions

expired.

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 Under the relation-back doctrine, an original pleading tolls the statute of limitations

for claims asserted in subsequent, amended pleadings as long as the amendments are not based on

new, distinct, or different transactions or occurrences. Id. § 16.068. A“transaction” means that set

of facts that gives rise to the cause of action premised thereon. Id.; See Hill v. Heritage Res., Inc.,

964 S.W.2d 89, 121 (Tex. App.—El Paso 1997, pet. denied). Texas law treats each alleged

defamatory publication as a single transaction with an independent injury. See Akin, 34 S.W.3d at

340.

The relation-back test focuses on new, distinct, and different claims, not on whether

the transactions alleged in the original and amended petitions are related or are otherwise part of the

same general course or pattern of conduct. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (West

1997); Leonard v. Texaco, Inc., 422 S.W.2d 160, 163 (Tex. 1967); Waddill v. Phi Gamma Delta

Fraternity, 114 S.W.3d 136, 144 (Tex. App.—Austin 2003, no pet.). Under this test, the claims

based on the 1998 Communications were “new” because they occurred after the original petition had

been filed and were “distinct or different” because each communication was addressed to a different

audience about different specific issues and was issued months apart from the other communications.

Furthermore, under Texas defamation law, we treat each of the 1998 Communications as a separate

transaction with an independent injury. See Akin, 34 S.W.2d at 340. Texas Disposal’s contention

that the acts are part of a pattern of wrongful conduct is not the focus of an inquiry under a relation-

back analysis. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (West 1997); Leonard, 422 S.W.2d

at 163.

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 In its second argument, Texas Disposal asserts that the actions it maintains in its July

25, 2000, amended petition are not time-barred because the 1998 Communications were part of a

continuing tort that had not yet accrued. Generally, a cause of action accrues when a wrongful act

causes an injury. Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App.—Dallas 1994, writ

denied). However, a continuing tort is an ongoing wrong causing a continuing injury that does not

accrue until the tortious act ceases. Upjohn, 885 S.W.2d at 543 (taking pill daily that caused

continuing injury is continuing tort); Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 156 (Tex. Civ.

App.—Dallas 1980, no writ) (although each day of false imprisonment is itself separate cause of

action, court viewed involuntary detention without access to counsel in mental hospital as one

continuing tort). A plaintiff can bring a single suit for the period of time it sustains injuries from a

defendant’s conduct. Upjohn, 885 S.W.2d at 543; Adler, 594 S.W.2d at 156. The concept of a

continuous tort originated in trespass-to-land and nuisance cases and has been expanded to include

false-imprisonment cases. Upjohn, 885 S.W.2d at 542. Treating regularly-occurring torts, such as

false imprisonment, as a continuing tort avoids a multiplicity of suits and does not force an aggrieved

plaintiff to choose between filing successive suits or face denial of the privilege of the full limitation

period in filing suit for each day of the false imprisonment. Id.; Adler, 594 S.W.2d at 156.

However, if each of the defendant’s separate behaviors caused a distinct injury, the continuing tort

rule does not apply. Upjohn Co., 885 S.W.2d at 543.

Each of the 1998 Communications was a discrete transaction: each was addressed

to a different audience, each concerned a different issue, each was issued months apart from the other

communications, and each caused an independent injury. The 1998 Communications do not suggest

11
the type of constant, continuous pattern of tortious conduct that courts have found constitutes a

continuing tort, such as each day of a false imprisonment or the daily consumption of a harmful

medication. See Upjohn, 885 S.W.2d at 543; Adler, 594 S.W.2d at 156. Furthermore, Texas

Disposal has not offered any authority nor have we found any that has broadened the continuing tort

doctrine to include defamation or tortious interference actions, or a tort such as the intermittent and

irregular nature of the complained of actions.

We hold that all of Texas Disposal’s claims based on the 1998 Communications are

time-barred because (1) Texas Disposal asserted them after the statute of limitations expired; (2) the

claims do not relate back to its 1997 petition; and (3) the claims do not constitute a continuing tort.

We overrule Texas Disposal’s first subissue.1

Antitrust Claims

Texas Disposal complains in its second subissue that the district court improperly

dismissed its anti-competitive claims under section 15.05(b) of the business and commerce code

because the summary judgment record contained evidence of anticompetitive or predatory behavior

and of a dangerous probability that Waste Management would achieve monopoly power in the San

Antonio and Austin markets. See Tex. Bus. & Com. Code Ann. § 15.05(b) (West 2002). Waste

Management asserts the Noerr-Pennington doctrine as an affirmative defense, urging that the

1
Because we hold that any alleged defamation resulting from the publication of the 1998
Communication would be barred by limitations, we need not reach the Texas Disposal’s issue of
whether the Drenth Letter or Unsigned Memo, two of the 1998 Communications, are privileged
under the “public interest” or “right to petition the government” exceptions to defamation.

12
doctrine immunizes Waste Management’s actions.2 See Video Int’l Prod., Inc. v. Warner-Amex

Cable Communications, Inc., 858 F.2d 1075, 1082 (5th Cir. 1988).

It is unlawful for any person to attempt to monopolize any part of trade or commerce.

Id. A cause of action for attempted monopolization requires a showing that the defendant: (1)

engaged in predatory or anticompetitive conduct; (2) with a specific intent to monopolize; and (3)

had a dangerous probability of achieving monopoly power. Spectrum Sports, Inc. v. McQuillan, 506

U.S. 477, 456 (1993). A party moving for summary judgment must conclusively prove all elements

of its cause of action or defense as a matter of law. Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v.

Steel, 997 S.W.2d 217, 223 (Tex. 1999).

Texas Disposal complains that the district judge erred when he found as a matter of

law that Waste Management’s conduct did not constitute predatory or anticompetitive conduct and

that Waste Management’s conduct did not create a dangerous probability that Waste Management

would achieve monopoly power in the San Antonio and Austin markets.3 Texas Disposal does not

appear to challenge the district court’s finding that Waste Management lacked the necessary intent

to monopolize and does not argue that we should infer the necessary intent from the Waste

2
Under the Noerr-Pennington doctrine, parties who petition the government for
governmental action favorable to them cannot be held liable under antitrust laws, even if their
petitions are motivated by anticompetitive intent. Video Int’l Prod., Inc. v. Warner-Amex Cable
Communications, Inc., 858 F.2d 1075, 1082 (5th Cir. 1988). It confers immunity on any concerted
effort to sway public officials regardless of the private citizen’s intent. Bayou Flett, Inc. v.
Alexander, 234 F.3d 852, 859 (5th Cir. 2000). The doctrine is a principle of constitutional law and
applies to state law claims. RRR Farms, Ltd. v. American Horse Prot. Ass’n, 957 S.W.2d 121, 127-
29 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).
3
The district judge granted a no-evidence summary judgment in favor of Waste Management
on the grounds that Texas Disposal presented no evidence that Waste Management created a
dangerous probability of achieving monopoly power in the relevant markets.

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Management actions of which Texas Disposal complains. Thus, because Texas Disposal does not

challenge the district court’s finding that at least one element of the claim was not met, we hold that

the trial court properly dismissed Texas Disposal’s attempted monopoly claim and overrule Texas

Disposal’s second subissue. See Tex. R. Civ. P. 166a(c). We do not reach the issue of whether the

Noerr-Pennington doctrine applies to immunize Waste Management’s actions.

Tortious Interference with an Existing Contract

Texas Disposal complains in its third subissue that it was error for the trial court to

dismiss its claims for tortious interference with existing and prospective contractual relations. Texas

Disposal asserts that it had a viable contract with San Antonio in May 1995 and that due to Waste

Management’s interference, the execution of the San Antonio contract was unduly delayed and as

a result, Texas Disposal suffered economic damages. We disagree.

The cause of action for tortious interference with an existing contract is based on the

principle that a contract is a property right subject to protection from unwarranted interference. See

Raymond v. Yarrington, 73 S.W. 800, 803 (Tex. 1903). Although a business is not protected from

most forms of competition, it may have a superior right, by contract or otherwise, to be so protected

in certain circumstances. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 717 (Tex. 2001).

A cause of action for tortious interference will not lie in the absence of a contract. S & A Marinas,

Inc. v. Leonard Marine Corp., 875 S.W.2d 766, 768 (Tex. App.—Austin 1994, writ denied).

Binding and enforceable contracts are formed when an offer is made and accepted,

when there is a meeting of the minds, and when the terms are sufficiently certain to define the

parties’ obligations. See Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App.—San Antonio 1999,

14
pet. denied). The determination of a meeting of the minds, and thus offer and acceptance, is based

on the objective standard of what the parties said and how they acted, not on their subjective state

of mind. Id. If a trial court can determine conclusively that no contract existed, summary judgment

is appropriate. S & A Marinas, Inc., 875 S.W.2d at 768.

Texas Disposal asserts that the grant of summary judgment was error because Texas

Disposal produced more than a scintilla of evidence that a contractual relationship existed between

Texas Disposal and San Antonio when Waste Management interfered. Furthermore, Texas Disposal

asserts that even absent a formal contract, Texas Disposal’s and San Antonio’s relationship had

matured to a point where Waste Management had a legal duty not to interfere.

To prove that it had a contract with the City of San Antonio, Texas Disposal relies

on an ordinance passed by the city council in May 1995 extending its disposal services contract. On

December 5, 1996, the city council issued an ordinance that directed the city manager to execute an

agreement with Texas Disposal, subject to the addition and modification of material terms. The

contract was finally memorialized in writing on January 7, 1998.

The May 1995 ordinance authorized the city manager or his representative to execute

a contract with Texas Disposal for waste disposal services for a term not to exceed thirty years and

authorized payment for the services. The ordinance did not discuss the Starcrest facility, an essential

part of the final agreement. The terms of the ordinance indicate that the city manager was authorized

to engage in negotiations to execute a contract that would be similar to the previous Texas Disposal

contract and would conform to San Antonio’s waste disposal services request for proposal

guidelines. The authorization to negotiate and execute a contract is not tantamount to expressing an

15
intent to be bound. S & A Marinas, Inc., 875 S.W.2d at 768. Texas Disposal admits in its brief,

“summary judgment evidence showed that by May 31, 1995, San Antonio had determined that Texas

Disposal’s proposal for private operation and use of Starcrest was the most competitive bid

submitted. The City obligated itself to negotiate further only with Texas Disposal . . . to reach an

agreement on privatizing Starcrest.” (Emphasis added.) Accordingly, the May 1995 ordinance did

not create a contract between Texas Disposal and San Antonio.

In the alternative, Texas Disposal argues that a contract existed when the city council

issued its December 1996 ordinance authorizing the city manager to execute an agreement with

Texas Disposal pursuant to the “Proposed Agreement with Texas Disposal to Operate Transfer

Station” subject to the addition or modification of some material provisions. The ordinance required

the city manager to further negotiate and refine the terms of the agreement to give San Antonio the

first right of use of and access to the transfer facility, to acquire the power to limit services available

to third parties, to acquire the power to change the composition of the oversight panel, to make the

new contract independent of the old contract with Texas Disposal with respect to termination, and

to add a term that would permit San Antonio to terminate the transfer station agreement for cause

on account of a material breach. The ordinance also authorized the city council to veto any contract

term that were materially different from the contract modifications listed in the ordinance.

The December 1996 ordinance is not evidence of a contract between San Antonio and

Texas Disposal. On the contrary, the ordinance’s language requiring the addition or modification

of material terms affecting termination of the contract and San Antonio’s use of the facility, and the

clause that requires city council approval for contract terms that significantly differ from the

16
requirements set forth in the ordinance show at most San Antonio’s continued interest in pursuing

and negotiating a waste disposal contract with Texas Disposal.

To hold that the brief and cursory language of the ordinances was sufficient to form

a contract would contravene public policy allowing governmental agencies to reconsider actions

taken with respect to a contract not yet finalized. See S & A Marinas, Inc., 875 S.W.2d at 768.

We hold as a matter of law that the May 1995 and December 1996 ordinance did not

demonstrate that a contract existed between San Antonio and Texas Disposal, and thus, the district

court did not err in dismissing Texas Disposal’s action for tortious interference with an existing

contract. We overrule Texas Disposal’s third subissue.

Tortious Interference with Prospective Contractual Relationship

Although Texas Disposal was eventually awarded both the San Antonio and Austin

contracts it sought, Texas Disposal claims in its fourth subissue that it is also entitled to damages

related to alleged delays in obtaining the contracts caused by Waste Management’s actions, under

a tortious interference with prospective contractual relations theory. See Baty v. Protech Ins. Agency,

63 S.W.3d 841, 859 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Ash v. Hack Branch

Distrib. Co., 54 S.W.3d 401, 414-15 (Tex. App.—Waco 2001, pet. denied). Texas Disposal asserts

that it was error for the district court to dismiss this claim on summary judgment. We disagree.

Although the supreme court has never enumerated the elements of a cause of action

for tortious interference with prospective contractual relations, the elements of the tort seem to

include: (1) there was a reasonable probability that the parties would have entered into a business

relationship; (2) an independently tortious or unlawful act by the defendant that prevented the

17
relationship from occurring; (3) the defendant acted 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 its conduct; and (4) the plaintiff suffered actual harm or damages as a result of the

defendant’s interference. See Baty, 63 S.W.3d at 860; Ash, 54 S.W.3d at 414-15 (emphasis added).

Conduct that is merely “sharp” or unfair is not actionable. See Baty, 63 S.W.3d at 860; Ash, 54

S.W.3d at 414-15.

Because Texas Disposal was awarded both contracts it sought, Texas Disposal cannot

prove its third element, that Waste Management’s actions prevented the contracts from forming.

Thus, the trial court properly dismissed the claim on summary judgment. See Tex. R. Civ. P.

166a(c); Rhone-Poulenc, 997 S.W.2d at 223.

Implicit in Texas Disposal’s claim is an invitation to expand the doctrine of tortious

interference with prospective business relationships to make actionable conduct that results in

delaying the execution of a contract, even though the formation of a contract was not prevented.

Delays caused by competitor conduct are inherent in the course of doing business, and enlarging the

scope of tortious inference for prospective relationships to include delays would run afoul of the

policy encouraging competition in the market. See Ash, 54 S.W.3d at 414 (citing Wal-Mart Stores,

Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001))(“Conduct that is merely ‘sharp’ or unfair is

not actionable and cannot be the basis for an action for tortious interference with prospective

relations . . . .”). We decline to expand the scope of tortious interference with prospective business

relationships to include conduct that results only in a delay of the execution of a contract. We

overrule Texas Disposal’s fourth subissue.

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Actual Malice

In a cross point, Waste Management challenges the factual sufficiency of the jury’s

finding that Waste Management published the Action Alert with actual malice and argues that Texas

Disposal did not meet its burden to show actual malice by clear and convincing evidence.

The record before us does not contain a notice of appeal filed by Waste Management.

A party who seeks to alter the trial court’s judgment or other appealable order must first file a notice

of appeal. Tex. R. App. P. 25.1(c); Quimby v. Tex. Dep’t of Transp., 10 S.W.3d 778, 781 (Tex.

App—Austin 2000, pet. denied). We dismiss Waste Management’s cross point.

CONCLUSION

We overrule all of the issues Texas Disposal has brought on appeal and dismiss the

only cross point. Therefore, we affirm the judgment of the district court.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: June 23, 2005

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