i^is^«sr«sHWps£ 79/254 

### (Uourt ofAppeals DHfti| listrtrt ofQTrxas at Dallas JUDGMENT ACTON CORPORATION and NATIONAL DEVELOPMENT COMPANY, INC., Appellants No. 05-91-01720-CV V. ROBERT J. SABINSKE, ANITA SABINSKE, BARBARA SMITH, SUSAN MULLINS, and NANCY SABINSKE, Appellees Appeal from the 193rd Judicial District Court ofDallas County, Texas. (Tr.Ct.No. 90-00145-L). Opinion delivered by Justice Barber, Justices Kinkeade and Whittington also participating.



### In accordance with this Court's opinion ofthis date, thejudgment ofthe trial court is REVERSED and this cause is REMANDED to the trial court for new trial. We 

### REVERSEthe trialcourt'srulingstrikingNationalDevelopmentCorporation'sintervention. We ORDER the trial court reinstate National Development Corporation's intervention and toplace National Development Corporation on its docket in cause number 90-00145-L as 

### aparty. It is ORDERED that appellants Acton Corporation and National Development Company, Inc. recover their costs ofthis appeal from appellees Robert J. Sabinske, Anita 

### Sabinske, Barbara Smith, Susan Mullins, and Nancy Sabinske. The respective obligations of Acton Corporation and National Development Corporation as principals and United Pacific Insurance Company surety on appellants' cost bonds are DISCHARGED. Judgment entered August 9, 1995.

WILL BARBER JUSTICE



## eS*^.«*Sf^!'*!s 

## c c

» '
REVERSED AND REMANDED, Opinion filed August 9, 1995

In The 

### Court ofAppeals mtttf Btsirtrt offtexas at Dallas
No. 05-91-01720-CV
ACTON CORPORATION and NATIONAL DEVELOPMENT COMPANY, INC., Appellants
V. ROBERT J. SABINSKE, ANITA SABINSKE, BARBARA SMITH, SUSAN MULLINS, and NANCY SABINSKE, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. 90-00145-L
OPINION Before Justices Kinkeade, Barber,1 and Whittington2 Opinion By Justice Barber

1 Justice Barber succeeds Justice Jeff Kaplan, amember ofthe original panel. Justice Barber has reviewed the briefs, the record, and the tapes of oral argument. 2 Justice Mark Whittington succeeds Justice Annette Stewart, amember of the original panel. Justice Whittington has reviewed the briefs and the record.

### c e
Appellee Robert J. Sabinske (Sabinske) together with his four daughters, Anita Sabinske, Barbara Smith, Susan Mullins, andNancy Sabinske (collectively the Sabinskes) sued appellantActon Corporation (Acton) alleging damage from breach ofcontract, breach ofduty ofgood faith and fair dealing, breach offiduciary duty, and fraud. Appellant National Development Corporation's (NDC) attempt to intervene was denied by the trial

court. 

### Acton appeals from afavorablejudgmentfor the Sabinskes, asserting in twenty-four 

### points oferrorthat: (1) the trial court erred in excluding evidence; (2) apriorFifth Circuit Court of Appeals (Fifth Circuit) decision in another lawsuit involving the parties was erroneously ignored; (3) Acton was denied a fair trial; (4) exemplary damages were not 

### recoverable; (5)judgment for the Sabinskes based on breach ofduty ofgood faith, breach 

### offiduciary duty, breach ofcontract, and fraud was improper; and (6) the trial court erred 

### in directing averdict against Acton on its tortious interference with contract claim. NDC asserts the trial court erred in striking its intervention. The Sabinskes, by cross-point, assert they are entitled to an additional award ofexemplary damages. 

### We reverse the trial court'sjudgment in favor ofthe Sabinskes. We reverse the trial court's directed verdict onActon's tortious interference claim. We reverse thetrial court's 

### striking of NDC's intervention. We remand this case to the trial court for new trial and order that NDC's intervention be reinstated.

## ( \ a

FACTUAL BACKGROUND Sabinske began real estate development operations as NDC in about 1954. NDC began basically as a residential and later as a resort "blue collar" developer. Through simplicity ofoperations andholding down costs, NDC sought amarket that otherdevelopers
were not reaching. Its developments did not include high-cost amenities such as tennis courts, golffacilities, club houses, and swimming pools. Itlocated its developments in such places as Kansas City, Omaha, St. Louis, Nashville, and Des Moines. In 1983, the Sabinskes, by virtue ofa Stock Purchase Agreement (SPA), sold NDC to Treco, Inc. (Treco).3 The SPA called for a $8,600,000 down payment and continued 

### payments pursuant to avery complex payment scheme based on the future profitability and expenses ofNDC's developments. Future disbursements tothe Sabinskes were dependent, in part, on Acton's cost management and allocation ofexpenses. As will beshown below, 

### the payment scheme was so complex that two federal court's disagreed on its interpretation. Treco borrowed $5,000,000 from Republic Bank and was allowed to transfer $3,600,000 out of NDC to pay the down payment. To some extent, repayment of the 

### RepublicBank note was dependent on the profitability of NDC's operations and cost allocations. Also, the amount disbursed to the Sabinskes was, to some extent, dependent on the balance due and owing to RepublicBank because the lower the balance on the loan,

3 Through mergers, Sunstatcs Corporation (Sunstates) succeeded Treco as aparty to the SPA, and Acton succeeded Sunstatcs.

# r V.
. . *

\ I
the higher the disbursements to the Sabinskes. Robert J. Sabinske remained president of NDC until October 31, 1987. When payments from NDC began to diminish in 1987, the Sabinskes hired accountants to investigate. Thereafter, the Sabinskes filed suit in federal court seeking a declaratory 

### judgment regarding certain provisions ofthe SPA. Based on testimony presented attrial, thefederal district court renderedjudgment favorable to theSabinskes. However, onMay 9, 1990, theFifth Circuit modified thedistrict court'sjudgment sothat itwas somewhat less
favorable to the Sabinskes.4 Issues were submitted to the jury on (1) breach of the SPA; (2) fraud in the administration oftheSPA; (3) breach ofduty ofgood faith and fair dealing; and (4) breach offiduciary duty under the SPA. Thejury found in favor of theSabinskes oneach theory submitted. Thejury awarded $3,500,000 in actual damages with respect to each separate 

### theory ofrecovery. Thejury also made separate determinations of$5,000,000 in exemplary damages on the fraud, breach of duty of good faith, and breach offiduciary duty claims. Pursuant to the jury's verdict, the trial court entered judgment for $3,500,000 in actual 

### damages, $5,000,000in exemplarydamages and $148,000in attorney's fees.5 The trial court did not specify on which theory or theories ofrecovery it based itsjudgment.

4

TheFifthCircuitopinion, which wasunpublished, wasnotenteredintoevidenceattrialnorwasanofferofproofsubmitting the opinion itselfmade. Acton did make asummary offerofproofregarding certain limited holdings ofthe FifthCircuit. 5Theparties stipulated to theamount of theSabinskes' attorney's fees.

-4-

## C \ </

I. EXCLUSION OF TESTIMONY In its first six points of error, Acton asserts the trial court erred in excluding or 

### limiting the fact and lay opinion testimony of Paul Albritton, Ray Bullion, and Glenn 

### Kennedy. Albritton, Bullion, and Kennedy were officers of Acton and/or NDC. Acton 

### sought testimony from them explaining certain accounting matters, business practices, and 

### generally rebutting the Sabinskes' case. The trial court significantly limited the scope of their testimony because they were not identified as expert witnesses. Acton argues the trial court's limiting of theirtestimony constitutes reversible error. A. Applicable Law 

### We apply an abuse of discretion standard to a trial court's exclusion ofevidence. 

### Coker v. Burghardt, 833 S.W.2d 306, 309 (Tex. App.-Dallas 1992, writ denied); Keetch v. 

### Kroger Co., 845 S.W.2d 276, 281 (Tex. App.-Dallas 1990), affd, 845 S.W.2d 262 (Tex. 1992). In order to gain reversal on the basis of improper exclusion of evidence, the 

### complaining party must show (1) it was error to exclude the evidence and (2) the error probably resulted in an improper verdict. See City ofBrownsville v. Alvarado, 897 S.W.2d 

### 750, 753 (Tex. 1995); City ofAustin v. Houston Lighting & Power Co., 844 S.W.2d 773, 790 

### (Tex. App.-Dallas 1992, writ denied). The omitted evidence must be more than merely cumulative. Usually, it must be controlling on amaterial issue dispositive ofthe case. See Alvarado, 897 S.W.2d at 753-54; see also Gee v. LibertyMut. Fire Ins. Co., 765 S.W.2d 394, 

### 396 (Tex. 1989). In making such adetermination, the entire record must be reviewed to

-5-

## C \ (j

determine if there is reversible error. Gee, 765 S.W.2d at 396. An error in the exclusion ofevidence requiresreversal if the complaining partyshows "that thejudgment turns on the particular evidence excluded ..." Alvarado, 897 S.W.2d at 754. To preserve error when testimony or evidence is excluded, a party must make an 

### offer ofproofshowing what the testimony or evidence would have been. Tex. R. App. P. 52; Tex. R. Civ. Evid. 103(a); Posnerv. Dallas County Child Welfare Unit ofthe Texas Dep't 

### ofHuman Servs., 784 S.W.2d 585, 588 (Tex. App.-Eastland 1990, writ denied); RawHide Oil &. Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 274-75 (Tex. App.-Amarillo 

### 1988, writ denied); Greenstein, Logan &Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 178 (Tex. App.-Waco 1987, writ denied). Ifthe witness is not testifying as anexpert, his testimony in the form ofopinions or inferences is limited to those opinions or inferences which are (a) rationally based on the 

### perception ofthe witness and (b) helpful to aclear understanding ofhis testimony or the determination of a fact in issue. Tex. R. Civ. Evid. 701. B. Application ofLaw to Facts
1. Bullion Acton failed to make anoffer ofproofas to what Bullion's testimony would have been had he been allowed totestify; therefore, we do not reach the question ofwhether the 

### trial court erredinlimitingBullion's testimony. We overruleActon's second andfifth points

of error.

-6-

## ( \ </

2. Albritton Acton's witness, Albritton, was executive vice president of Acton Corporation. Before thejury, Albritton testified that he was with Acton's predecessor companies until the end "and since the Stock Purchase Agreement, I administered the Stock Purchase Agreement." Albritton was the person atActon responsible for seeing that themoney was distributed to the Sabinske family under the SPA from sometime in 1986 and thereafter. His recollection was that some$16,000,000 had been paid to the Sabinskes during the terms of the SPA. The trial court did not allow Albritton to testify as to what, if anything, the Sabinskes were owed under the SPA and why. In an offer ofproof, Albritton testified as towhat amounts, ifany, he thought were due the Sabinskes and why. Clearly such evidence was controlling, as whether the SPAwas breached was the most important issue in the case. This evidence was coming from the perspective ofthe sole administrator ofthe SPA; therefore, it was not cumulative of other evidence that was admitted. Furthermore, 

### Albritton's understanding and beliefas to what amount, ifany, was owed to the Sabinskes 

### was highly relevant to the issues of breach of duty of good faith, fraud, and breach of 

### fiduciary duty. The evidence was also important to the determination ofwhat amount, if any, should be awarded as actual and punitive damages. Pursuant to Texas Rule ofCivil Evidence 701, such evidence was rationally based on 

### the perception ofthe witness and would have been helpful to aclear understanding ofhis 

### testimony or determination of afact in issue. Further, much ofthe improperly excludedtestimony was fact, rather than opinion, evidence. The trial court abused its discretion in excluding it and Acton was harmed. We sustain Acton's first and fourth points of error. 3. Kennedy 

### Acton complains ofthe trial court's limitation ofKennedy's testimony in points of

error three, six, nine, and ten. 

### Kennedy was the vice president, treasurer, and chieffinancial officer ofActon. The record indicates thathe had thefinal say onwhat amounts were distributed to theSabinskes. 

### In the offer ofproof, Kennedy explained the reason for a$500,000 difference reflected in balance sheets regarding the amount due to the Sabinskes. The Sabinskes stressed this discrepancy as being evidence ofbad faith and breach ofcontract. Kennedy testified that the difference was due to the difference between the ruling of the federal district court and that ofthe Fifth Circuit. During avoir dire examination during the offer ofproof, Kennedy testified that he would have to explain the changes were mandated by generally accepted accounting principles and the Fifth Circuit's opinion. The trial court excluded Kennedy's testimony because itconcluded that itwould be expert testimony. We disagree. 

### The fact that Kennedy's testimony may have been based on generally accepted 

### accounting principles did not subject him to disqualification as an expert witness. The gist of his excluded testimony regarded Acton's reliance on the Fifth Circuit's opinion in 

### preparingitsfinancial reports. Specifically, he soughttoexplainchanges in anentryentitled

## c \ t

"accrued acquisition consideration."6 Kennedy also sought to explain the differences among the federal district court's, the Fifth Circuit's, the Sabinskes', and Acton's interpretation of
the SPA. Interpretation ofthe SPA was a critical issue relevant to all the Sabinskes' tort and contract theories ofrecovery. The federal courts' opinions go directly to the terms of the contract which Acton allegedly breached. Acton's contentions regarding the terms of the 

### contract and the differing interpretations ofthe SPA are relevant to the determination of 

### the controlling issues ofActon's intent, the potential falsity ofActon's representations, its 

### good faith or lack thereof, and damages. Such evidence could have affected the jury's perception ofthe reasonableness of Acton's actions and positions. The evidence is not cumulative ofother evidence presented and goes directly to material findings of thejury. 

### The impact of the knowledge that two federal courts differed significantly on their interpretations of the SPA, and Acton's claimed reliance on them, could have affected virtually every aspect of the jury's verdict. 

### The brevity ofKennedy's admitted testimony and the lack ofexplanation ofActon's 

### defense was emphasized by the Sabinskes' counsel injury argument: "Now, what evidence 

### did these people offer to refute that [Acton's alleged scheme]. Well, they called Mr. 

### Kennedy, whom I'll call the two-minute witness, the gentlemanwith the beard seatedback

6Earlier in the trial, appellees argued thatthis entry was Acton's calculationofwhat was owed to them. Actondisputed, or would have disputed, this interpretation had itbeen given the opportunity to explain the financial records.

## C \ Q

here. Mr. Kennedy gets on the stand. He says, 'I prepared it.' And it's adios. He doesn't say another word to tell you all what happened. No excuse, no explanation, not even an apology." We conclude that the trial court erred in excluding Kennedy's proffered testimony and that such error was harmful and warrants reversal. We sustain Acton's third, sixth, ninth, and tenth points of error. II. THE FIFTH CIRCUIT OPINION, RES JUDICATA, COLLATERAL ESTOPPEL, AND LAW OF THE CASE In its eleventh, twelfth, and thirteenth points of error, Acton complains about the trial court's (1) allowing the Sabinskes to introduce evidence andargument contrary to the Fifth Circuit's opinion and (2) entering judgment contrary to the Fifth Circuit opinion. Acton asserts these matters constitute reversible error because the evidence should have been excluded, and thejudgment should have been barred by thedoctrines ofresjudicata, 

### collateral estoppel, and law ofthe case. Ifthese points are meritorious, rendering of 

### judgment, at least in part, might be possible. Therefore, we must considerthem. See Tex. R. App. P. 90(a). 

### Resjudicata, collateral estoppel, and law ofthe case are affirmative defenses which, 

### if not specifically pleaded, are waived. See Tex. R. Civ. Evid. 94; Austin Tramp. Study 

### PolicyAdvisoiy Comm. v. Sierra Club, 843 S.W.2d 683, 688 (Tex. App.-Austin 1992, writ denied). Acton did not plead res judicata, collateral estoppel, or law of the case.

•10-

## C \ (j

Therefore, Actonwaived anyarguments basedon thesedoctrines. Further, neither the Fifth Circuit opinion nor the pleadings underlying it arein therecord. Intheabsence oftheFifth Circuit opinion, we cannot determine whether the Sabinskes were erroneously allowed to introduce evidence contrary to the opinion. See Walker v. Sharpe, 807 S.W.2d 442, 447 

### (Tex. App.-Corpus Christi 1991, no writ) (pleadings andjudgment necessaryto determine applicability of res judicata). We overrule Acton's eleventh, twelfth, and thirteenth points of error. III. STANDARD OF REVIEW: SUFFICIENCY OF THE EVIDENCE A. Legal Sufficiency 

### In reviewing no evidence points, we consider only the evidence and reasonable inferences drawn therefrom, which, when viewed in their mostfavorable light, support the 

### court's findings. We disregard all evidence and inferences contrary to the fact finding. 

### Stafford v. Stafford, 126 S.W.2d 14, 16 (Tex. 1987); Aim v.Aluminum Co. of America, 111 S.W.2d 588, 593 (Tex. 1986). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford, 726 S.W.2d at 16.
B. Directed Verdict 

### In reviewing the trial court's directed verdict on factual grounds, we determine 

### whether there is any evidence of probative force to raise fact issues on the material 

## questions presented. A directedverdict can bejustified only ifno otherverdict could have been rendered. In this analysis, all fact issues must be resolved in favor ofthe non-movant

-11-

## C \ Q

and against the movant. All evidence andInferences contrary to the non-movant's position are disregarded. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976); Morey
v. Page, 802 S.W.2d 779, 783 (Tex. App.-Dallas 1990, no writ). IV. DUTY OF GOOD FAITH AND FAIR DEALING AND FIDUCIARY DUTY 

### In its seventeenth point of error, Acton challenges the trial court's award of 

### exemplary damages, arguing the Sabinskes' causes ofaction sounded in contract and not in tort. In its twentieth and twenty-first points oferror, Acton asserts that the trial court erred 

### in entering judgment on the basis of breach of duty of good faith and fair dealing and fiduciary duty, respectively. A. Fiduciary Duty and Duty of Good Faith 

### Thejury found in the Sabinskes' favor on each ofthe questions submitted on breach 

### of duty of good faith and fair dealing and breach of fiduciary.7 Acton essentially argues there was no evidence ofa special relationship between it and the Sabinskes giving rise to
these duties.8 7

Thejury found that the breach ofduty ofgoodfaith and fair dealing was malicious, oppressive, or accompanied by fraud, and that the breach of fiduciary duty was intentional and malicious. 8The jury was instructed as follows regarding these duties: With respect to the foregoing question [regarding the existence of a special relationship], you are instructed that aspecial relationship isone inwhich it isnecessary for one party to place special trust in the other in order to accomplish the goals of the
contract. With respectto the foregoing issue [regarding breach ofaduty of good faith and fair dealing], you arc instructed thatadutyofgoodfaith andfair dealing is implied inany contract in which there is a special relationship between the parties such that it is necessary for one party to place specialtrust in the other in orderto accomplish the goals ofthe contract. This duty ofgood faith and fair dealing requires that neither party tothe

12-

## c c

The evidence presented at trial showed that the distribution of proceeds to the Sabinskes depended on Acton's effectively and fairly operating NDC. After Robert J. Sabinske left NDC, the Sabinskes were totally dependent upon Acton for further distributions. The record contains evidence from which the jury could have found that the 

### Sabinskes "reposed special confidence" in Acton and that Acton was "bound to act with 

### good faith and due regard to the interests of the Sabinskes. More than a scintilla of evidence was also presented showing that Acton breached the duty ofgood faith and fair 

### dealing. In sum, there was more than ascintilla ofevidence to support thejury's findings on good faith and fiduciary duty. 

### The foregoing findings could have been made outside the terms ofthe SPA. Thus, the same operative facts which supported the jury's breach ofcontract finding are not 

### necessarily those underlying the jury's breach of good faith and fiduciary duty findings. Therefore, Acton's challenge to the legal sufficiency ofthe evidence supporting the jury's 

### breach offiduciary duty and duty ofgood faith and fair dealing findings fails.

contract do anything toinjure the right of the other party toreceive the benefits ofthe agreement. With respectto theforegoing issue [regarding the existenceofafiduciary duty], you arc instructed that afiduciary duty may arise where aspecial confidence is reposed in another who in equity and good conscience isbound toact in good faith and with due regard tothe interestsoftheonereposingconfidence. Afiduciary relationship may exist when the partieshave moral, social, domestic orpurely personalrelationships; orifthere is an imbalance ofbargaining power conferred upon the parties by the terms ofthe contract withrespect to the performance of the contract. With respectto the foregoing issue [regardingbreach offiduciary duty], you are instructed that one who owes afiduciary duty must act fairly, honestly and in good faith.

•13-

## c c

B. Contract Versus Tort Claims Acton also asserts the same wrongful conduct underlies the Sabinske's breach of contract and tort theories ofrecovery, that is, miscalculation ofActon's "payment to the Sabinskes under the terms of the Stock Purchase Agreement." Acton argues that the Sabinskes are entitled to damages for breach ofcontract only. See Central Savs. &Loan Ass'n v. Slemmons Northwest Bank, NA., 848 S.W.2d 232, 238 (Tex. App.-Dallas 1992, no 

### writ); C&CPartners v. Sun Exploration & Prod. Co., 783 S.W.2d 707, 719-20 (Tex. App.- Dallas 1989, writ denied). We disagree. Some contracts involve special relationships that give rise to duties enforceable as torts. See Southwestern Bell Tel. Co v. DeLanney, 809 S.W.2d 493, 494 n.l (Tex. 1991). 

### "Tort obligations are in general obligations that are imposed by law-apart from and independent of promises made and therefore apart from the manifested intention of the 

### parties-to avoid injury to others.'" Id. (quoting W. Keeton, D. Dobbs, R. Keeton, &D. Owen, Prosser and Keeton on the Law of Torts § 92 at655 (Std. Ed. 1984)). Acton's 

### relationship with the Sabinskes could have entailed obligations imposed by law, and not contract, which would support tort liability. See DeLanney, 809 S.W.2d at495 n.2. More than a scintilla ofevidence was presented to the jury indicating that Acton 

### manipulated the activities and accounting practices ofNDC in such away as to trap funds in NDC and reduce NDC's income stream in order to reduce distributions to the Sabinskes. 

### The Sabinskes presented legally sufficient evidence from which areasonable finder offact

•14-:itejSJS-*.:V^iSi-sti;^*-^S^:M 

## r c

could have concluded that Acton breached its duty of good faith and fiduciary duties by engaging insuch conduct. Insum, therecord contains evidence potentially showing tortious conduct outside the alleged breach ofcontract. Thus, therewas legally sufficient evidence supporting thejury's finding that the Sabinskes were entitled torecover under their breach of duty of good faith and fiduciary duty theories. We overrule Acton's seventeenth, twentieth, and twenty-first points of error. V. FRAUD In its twenty-second point oferror, Acton asserts the evidence was legally insufficient 

### to support thejury's fraud findings." Acton's argument is based on the contention that the allegedlyfraudulentrepresentations, containedinfinancial statements, werepredicatedupon the changing federal court interpretations of the SPA. Acton also relies on Robert Sabinske's testimony indicating that he did not rely on some ofthe information contained in the financial reports. While we have held the trial court erred in excluding certain evidence regarding the 

### federal courts' interpretations ofthe SPA, that evidence was not necessarily dispositive of 

### appellees' fraud claims. There were otherrepresentations containedin the subjectfinancial documents which the jury could have concluded were false at the time they were made. 

### Likewise, while Robert J. Sabinske may have testified that he did not rely on certain ofthe
9Itis unclearas to whetherActon isasserting alegalorfactual sufficiency point. We need notresolve thisquestionbecause onlyconsideration ofalegal sufficiency pointwould result ingreaterreliefthan has already beengranted. SeeTex. R. App. P. 90(a).

15-

## c c

entries in the documents, there was evidence before the jury from which it may have reasonably concluded that he relied on other allegedly false information in the documents. Thus, there was more than a scintilla ofevidence fromwhich the jury could haveconcluded that the Sabinskes' relied on false representations ofActon. WeoverruleActon'stwentysecond point oferror to the extent itcomplains ofthe legal insufficiency ofthe evidence. VI. BREACH OF CONTRACT FINDING 

### In its twenty-third point oferror, Acton challenges the legal sufficiency of the evidence to support thejury's breach ofcontract finding.10 Acton does not cite any portion of therecord or authority to support this point oferror. Therefore, we are not obligated torule upon it. Anheuser-Busch Cos., Inc. v. Summit Coffee Co., 858 S.W.2d 928, 942 (Tex. App.-Dallas 1993, writ denied) ("An appellate court has no duty to search avoluminous record without guidance from the appellant todetermine whether an assertion ofreversible error is valid."),judgm'l vacated on othergrounds, 115 S. Ct. 1309 (1995); see also Tex. R. 

### App. P. 74(f). However, in the interests of justice and liberally construing Acton's argument 

### on appeal, we will considerthe merits ofActon's legal argumentunder its twenty-third point

of error. The thrust ofActon's argument is that the evidence showing breach ofcontract was 

### contrary to the Fifth Circuit's interpretation ofthe SPA. We disagree. Basedon the record

'° It isunclear as to whether Acton isasserting a legal orfactual sufficiency point. We need not resolve this question because only consideration ofalegal sufficiency pointwould resultingreaterreliefthan has already been granted. SeeTix. R. App. P. 90(a).

•16-

## c c

before us we can, and have, determined that the Sabinskes alleged breaches of the contract outside the purported scope ofthe Fifth Circuit opinion. The alleged breaches outside the 

### scope of the Fifth Circuit opinion are supported by more than a scintilla of properly
admitted evidence. 

### We overrule Acton's twenty-third point oferror to the extent it complains the evidence was legally insufficient to support thejury's breach ofcontract claim. VII. ACTON'S COUNTERCLAIM FOR TORTIOUS INTERFERENCE 

### In its twenty-fourth point oferror, Acton asserts thatthe trial court erred in granting Robert J. Sabinske's motion for directed verdict on Acton's tortious interference claim. 

### Acton pleaded atortious interference claim asserting that Robert J. Sabinske improperly 

### induced RepublicBankto place the $5,000,000 note into default and, as aresult, Acton had to make a$250,000 principal payment on the note it was not otherwise required to make. The $5,000,000 note was a demand note. Acton presented evidence indicating that 

### Robert J. Sabinske met with RepublicBank, informed the bank that Acton was in default under the SPA, indicated that he might have to pursue litigation against Acton and, as a 

### result, Acton might not be able to make payments on the note, and suggested that itwould be in the bank's best interest to place the note in default. Robert J. Sabinske also told 

### RepublicBank that he would make sure the bankwas not hurt ifActon could not pay the note. It was in Robert J. Sabinske's direct economic interest to have the $5,000,000 paid because the lower the balance on the note, the higher the disbursements to the Sabinskes.

•17-

## c c
RepublicBankplaced the note in default. In ordertoreinstate the note, Acton had tomake 

### a$250,000 principal payment on the note. The foregoing facts constitute some evidence of tortious interference. See Schoellkopfv. Pledger, 778 S.W.2d 897, 900 (Tex. App.-Dallas 

### 1989, writ denied) ("A case ofwrongful interference with contract is establishedby findings that: (1) acontract existed that was subject to interference; (2) the act ofinterference was willful and intentional; (3) such intentional act was a proximate cause of the plaintiff's damages; and (4) actual damage orloss occurred."). Inhis oral motion for directed verdict and onappeal, Robert J. Sabinske asserts that Acton's tortious interference claim was barred by the applicable statute of limitations. 

### However, the Sabinskes never pleaded the statute oflimitations with respect to the tortious interference claim nor did the trial court grant atrial amendment. Therefore, the directed 

### verdict cannot be supported on the basis ofthe statute oflimitations. See Tex. R. Civ. P.

94. We sustain Acton's twenty-fourth point of error. VIII. THE SABINSKES' CROSS-POINT OF ERROR 

### In their cross-point of error, the Sabinskes assert that they are entitled to an additional $5,000,000 in exemplary damages because they prevailed on more than one tort 

### theory. Nothing in the record indicates thatthe Sabinskes requested suchrelieforobjected to the trial court's failure to make such an award. Therefore, the Sabinskes have failed to 

## preserve this argument for appeal. Tex. R. App. P. 52(a). We overrule the Sabinskes'

18-

### c c

cross-point of error. IX. NDC'S INTERVENTION A. Applicable Law "Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of anyparty." Tex. R. Civ. P. 60. An entity has 

### the right to intervene if it could have brought the same action, or any part thereof, in its
own name, or, ifthe action was brought against it, itwould be able to defeat recovery in 

### whole orin part. GuarantyFed. Savs.Bankv. Horseshoe OperatingCo., 793 S.W.2d 652, 657 (Tex. 1990); Houston Lighting &Power Co. v. City ofSan Antonio, 896 S.W.2d 366, 372 

### (Tex. App.-Houston [1st Dist.] 1995, no writ). Atrial court's striking of a petition in intervention is reviewed under an abuse of discretion standard. See Guaranty Fed., 793 S.W.2d at 657; Texas Supply Or., Inc. v. Daon Corp., 641 S.W.2d 335, 337 (Tex. App.- 

### Dallas 1982, writ ref'd n.r.e.). Atrial court has broad, though not unlimited, discretion in determining what constitutes sufficient cause. See Apparel Contractors, Inc. v. Vantage 

### Properties, Inc., 620 S.W.2d 666, 668 (Tex. App.-Dallas 1981, writ ref'd n.r.e.). Itis an abuse of discretion for a trial court to strike an intervention where: (1) the intervenor has 

### the ability to bring suit in his own right; (2) the intervention will not complicate the case by an excessive multiplication of the issues; and (3) the intervention is almost essential to 

### effectively protect the intervenor's interests. See Guaranty Fed., 793 S.W.2d at 657; Duke v. Wilson, No. 08-94-00043-CV, slip op. at 6-9 (Tex. App.-El Paso May 18, 1995, n.w.h.).

19-

### c c
Judicial economy and the need to avoidmultiplicity oflawsuits are also factors to consider. See Guaranty Fed., 793 S.W.2d at 658. B. Application ofLaw to Facts NDC is Acton's wholly owned subsidiary. NDC's intervention alleged that Robert 

### J. Sabinske engaged in improper conduct while he was president ofNDC. Each ofthe 

### claims asserted by NDC were identical to claims asserted by Acton against Robert J. Sabinske, except for a request for declaratory relief not asserted by Acton regarding settlement proceeds from other litigation.11 

### It is undisputed that NDC was entitled, in its own right, to assert the causes ofaction contained in its plea in intervention. NDC's request for declaratory relief appears to be simple. Certainly, nothing in the record shows it would have appreciably affected the issues 

### to be tried or the length ofthe trial. NDC's intervention would not have affected the complexity ofthe case. The interests ofthe Sabinskes, Acton, and NDC were interwoven. 

### Disposition of the case could reasonably impair or impede NDC's ability to protect any interest it might have in the subject litigation. Thus, NDC's participation was almost essential to NDC's protecting its interests. 

### NDC's attempted intervention meets the Guaranty Federal test for abuse of discretion. Judicial economy and the interests ofthe parties would have been served by

Acton asserted additional causes of action against Robert J. Sabinske.

-20-^i*.^^»^jI^^.S^;^V^.*'Si^l«^fe^%"*>fti«M 

### c c

* * * allowing NDC to intervene. We conclude the trial court abused its discretion in striking NDC's intervention. We sustain NDC's point of error. X. DISPOSITION We sustain Acton's first, third, fourth, sixth, ninth, tenth, and twenty-fourth points of error. We overrule Acton's second, fifth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and twenty-third points oferror. We overrule the Sabinskes' cross-point oferror. We sustain NDC's point of error. We do not reach Acton's fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, and 

### twenty-third points oferror as Acton could obtain no greater reliefunder these points than ithas already obtained. See Tex. R. App. P. 90(a). For the same reason, we do not reach Acton's seventeenth, twentieth, twenty-first, andtwenty-second points of error to theextent these points may be considered factual insufficiency points. We reverse the trial court'sjudgment. We order NDC's intervention reinstated. We remand this case to the trial court for further proceedings consistent with this opinion.

Do Not Publish Tex. R. App. P. 90 911720F.U05

-21- WILL BARBER JUSTICE