I respectfully disagree with the majority in affirming the judgment of the trial court.
*Page 682 Thomas McLaughlin and John Lazovich, appellees, entered into a contract in 1986 with First Texas Savings Association which contained various provisions, among which was an option by McLaughlin and Lazovich to purchase forty-nine percent of the AMS Division of First Texas Savings Association by August 1, 1991. If the option was exercised by McLaughlin and Lazovich, then First Texas Savings Association was required to repurchase the option at a price based upon a formula which was a percentage of the gross revenues of the AMS Division's government services for the fourth and fifth years of the option period, which were 1990 and 1991, or three million dollars, whichever was less. Therefore, if the defined gross revenues for 1990 and 1991 declined sufficiently, the option price would be less than three million dollars and could be nothing. There were other provisions such as permitting First Texas to withdraw from the defined services if it so chose.
On May 12, 1989, the Federal Savings and Loan Insurance Corporation (FSLIC) lawfully repudiated the contract pursuant to the authority contained in 12 U.S.C. § 1821(e)(1)(1990), whereby a receiver of a savings and loan association may repudiate any contract of a financially failed institution if the contract requires a performance which is burdensome. Therefore, the McLaughlin-Lazovich contract became void before the option provisions matured. Whatever control existed over the contract by the parties thereto no longer existed effective May 12, 1989.
It is important to note that before the repudiation of the contract by FSLIC, First Texas Savings Association incurred huge losses which led to its financial failure. McLaughlin and Lazovich approached First Texas Savings Association on August 5, 1988, and requested that First Texas Savings Association consider moving up the options whereby McLaughlin and Lazovich would exercise their rights early in acquiring the AMS interest, which would lead to the repurchase by First Texas Savings Association. Since the fourth and fifth base years, 1990 and 1991, had not been reached, McLaughlin and Lazovich had to negotiate a new repurchase price by First Texas Savings Association. These negotiations resulted in an agreement that First Texas Savings Association would purchase McLaughlin's and Lazovich's option for one million dollars.
Before this transaction could be completed, First Texas Savings Association was placed in receivership and, subsequently, the McLaughlin-Lazovich contract was repudiated by FSLIC.
On February 12, 1990, McLaughlin and Lazovich, plaintiffs, filed suit against appellants. McLaughlin and Lazovich claimed in their petition that Affiliated Computer Systems Financial Services, Inc. (ACS), TransFirst Corporation, Darwin Deason, and J. Livingston Kosberg committed fraudulent acts which make them liable for McLaughlin's and Lazovich's loss of benefits that may have manifested in 1991. The plaintiffs claim in that petition that the defendants breached a confidential and fiduciary relationship with the plaintiffs which was the proximate cause of the damages to plaintiffs. Said plaintiffs claimed that the defendants were unjustly enriched. In addition, plaintiffs claimed fraud, conspiracy, and breach of contract, together with attorneys' fees. Subsequently, plaintiffs added tortious interference with their contract to their petition, which became the main thrust of this lawsuit.
The trial court in its charge informed the jury that one interferes with the contract of another if (1) there was a contract subject to interference; (2) there was an act of interference that was willful and intentional; (3) such intentional act was a proximate cause of plaintiffs' actual damages, if any.
In my analysis of the facts, I have assumed arguendo that the complained-of acts that occurred in 1988, wherein First Texas Savings Association sold assets to another entity, may have eventually interfered with First Texas Savings Association's ability to meet the terms of the option that would arise in 1991 under normal conditions. However, the facts of the case show that conditions were not normal. The savings and loan industry was in serious trouble nationwide. In particular, and more relevant to this case, First Texas Savings Association was suffering huge losses every year and was, therefore, *Page 683
subject to strict federal regulation. The facts show that when McLaughlin and Lazovich realized that their option might be worth nothing by August 1, 1991, they made an offer to induce First Texas Savings Association to exercise its option before the base years of 1990 and 1991, which were the crucial years of government service orders that could produce the benefits to McLaughlin and Lazovich, in order to trigger a buy-back requirement early. McLaughlin's first offer was rejected, but negotiations continued and finally First Texas Savings Association agreed to pay McLaughlin and Lazovich one million dollars. It is essential that we must recall that this resolution of the contract was after the occurrence of the alleged tortious acts of the appellants that were complained of in the lawsuit.
First Texas Savings Association did not refuse to negotiate, nor did anyone interfere with those negotiations. The contract was consummated by McLaughlin and Lazovich to their satisfaction and possibly resulted in a greater benefit than they would have enjoyed had the parties waited for the base years of 1990 and 1991. Shortly after the parties reached this agreed conclusion of the contract, a subsequent event occurred which was unfortunate for McLaughlin and Lazovich. The FSLIC lawfully canceled the McLaughlin/Lazovich contract obligation in its entirety.
The evidence clearly reveals that First Texas Savings Association was induced to exercise an early option anddid in fact proceed to attempt to honor its contract. I believe that the facts belie plaintiffs' contentions that First Texas Savings Association violated its promise by reason of tortious interference.
On another aspect of the case, the majority opinion opines that the contract became unenforceable, but concludes that "unenforceability of a contract, without more, is not a defense to an action for tortious interference." For this proposition, the majority cites Juliette Fowler Homes v. WelchAssocs., 793 S.W.2d 660 (Tex. 1990), as authority. However, a careful reading of that case and a case cited byJuliette leads this writer to conclude that the majority misreads Juliette. Juliette cites Clements v. Withers, 437 S.W.2d 818, 821 (Tex. 1969). Clements teaches us that oral promises that are not enforceable because of the statute of frauds are still promises and that the public is better served by the performance of all promises made for lawful purposes. Clements says that the fact that the oral promise may not be enforceable "does not give third parties the right to interfere with the performance of oral contracts."Clements, 437 S.W.2d at 821. Hence, Clements tells us that third parties may not interfere with a promise even though a court of law will not enforce the promise because of form. That is far different from the situation we have in this case. The underlying obligation of the McLaughlin/Lazovich contract was nullified by the United States of America. There is no obligation, regardless of form, because FSLIC will not allow any payment under the contract.
The majority further misreads Juliette because, contrary to what the majority tells us about Juliette, that case holds that "[u]nder the facts of this case, we hold that the unenforceability of the noncompetition clauseis a defense to Welch's tortious interference claim against Fowler." Juliette, 793 S.W.2d at 664 (emphasis added).
Therefore, the basis for the majority result is not supported by the law it relies upon. Furthermore, the act of interference with a contract must result in an actualinterference. In this case, the alleged tortious act was not the proximate cause of the plaintiffs' damages. As a matter of fact, McLaughlin and Lazovich continued to deal with First Texas Savings Association after the alleged act of interference and they successfully concluded the contract early as they requested, which would have concluded the matter but for the lawful repudiation by FSLIC which made the contracttotally unenforceable — not simply because it was not in writing as in the cases cited by the majority.
Because I find no legally sufficient evidence to support the judgment, I would reverse *Page 684 the judgment and render judgment for appellants.