Maynard v. Caballero

WOODARD, Justice,

dissenting.

I respectfully dissent.

The defendant, in moving for summary judgment, must show at least one of the elements of the plaintiff’s cause of action has been established conclusively against the plaintiff. Sakowitz, Inc. v. Steck, 669, S.W.2d 105, 107 (Tex.1984). The basic elements for the cause of action for tortious interference with a contract are: (1) that the defendant maliciously interfered with the contractual relationship, and (2) without legal justification or excuse.

The defendant attempted to negate the first element by the testimony of Mr. Bert Williams that he was not influenced by Mr. Caballero during the trial. Mr. Williams is an interested witness testifying to matters of mind that cannot be readily controverted. This type of proof fails to disprove the plaintiff’s allegation of interference causation.

This leaves consideration of legal justification or excuse. The majority cites the Restatement (Second) of Torts for its balancing guidelines. The plaintiff contends that Mr. Caballero, in order to avert attention to the fact that he was suspect in a contemporaneous ticket fixing scheme, interfered with the plaintiff’s attorney contract. A further allegation was that Mr. Caballero prevented the cross-examination of his former client/witness because the disclosure of their relationship would require disqualification of himself from the case and the surrender of a substantial attorney’s fee.

In applying the Restatement balancing test with the allegation, privilege, at this point, must fail. If the defendant acted maliciously, with self-interest as the inducement, with no benefit to his client, any privilege would be perforated. The question of privilege at this juncture is a fact issue.

I humbly agree with the majority’s conjecture that had the statute of limitations been properly urged in defendant’s second motion for partial summary judgment, the defendant might have prevailed on this point. I say it with humility, as I was the trial judge that improperly denied the first motion for partial summary judgment on those grounds. The scanty excuse offered is that cogitation often comes more easily to the tranquil appellate justice than it does to the harrowed, hurried and noble judge of the trial bench.