## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 01-41269

_______________



### D OOR 

### C ONTROL 

### S ERVICES



### , I NC



### .,

Plaintiff-Counter-Defendant-AppelleeCross-Appellant,

VERSUS



### B ESAM 

### A UTOMATED 

### E NTRANCE 

### S YSTEMS



### , I NC



### .,

Defendant-Third-Party Plaintiff-Counter

Claimant-Appellant-Cross-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas



### m 6:00-CV-293

_________________________ February 5, 20032

Before J ONES , S MITH , and S ILER

, *

Circuit Judges. **

J ERRY E. S MITH , Circuit Judge:

Besam Automated Entrance Systems, Inc.

(“Besam”), a ppeals a jury award of $6,000,-

000 to Door Control

Services, Inc. (Door

Control”), for fraud. Door Control cross-appeals a judgment as a matter o f law (“j.m.l.”)

o n its claims of breach of contract, breach o f

duty of good faith and fair dealing, and tortious interference wi t h contractual relations.

We affirm in part, reverse in part, and remand

for further proceedings.

I.

A.

Besam manufactures a line of commercial

automatic doors that are sold and serviced by

independent distributors. From 1983 to 2000,

Door Control was Besam’s distributor for the

north/east/central Texas region, which included the Dallas and Fort Worth markets. After

1986, their legal relationship was controlled by

a written agreement (the “Distr ibutorship

Agreement”); Door Control claims the agreement has been orally modified over the years.

In 1999, the Houston area di stri butor of

Besam doors faced serious financial difficult ies

and could not meet installation deadlines for

several large clients; Door Control helped Besam meet th o se installation deadlines and

claims that, in return, Besam o r ally agreed to grant it a distributorship for the Housto n and

San Antonio areas. Door Control took out a

loan to finance its expansion into those markets.

In February

o r March 2000, Besam informed Door Control that it would d irectl y

distribute and service its doors in the Houston

area. Besam later asked Door Control to stop

servicing clients in the area, but Door Control

refused. Besam then terminated Door Control’s north/east/central Texas distributorship.

Lacking a major door line to sell, Door Control suffered a decline in business.

B.

Door Control sued B esam in Texas state

court alleging, inter alia , breach of contract,

breach of the duty of good faith and fair dealing, fraud, and torti ous int e rference. Besam

removed the case to federal court based on diversity j urisdiction and asserted counterclaims.

The case proceeded to trial, and Besam moved

for j.m.l. at the close of Door Control’s presenta t ion of evidence. The district court

granted j.m.l. on all claims except fraud, on

which the jury awarded $6,000,000 in lost

profits and $400,000 in reliance damages. 1

II.

Besam contends it is entitled to j.m.l. with

respect to lost profits because the record contains insufficient evidence to support the verdict, in light of the fact that Door Control’s

damages expert testified as to lost gross profits, rather than lost net profits as required under Texas law. Door Control argues that because the jury w as properly instructed that it

* Judge of the United States Court of Appeals

for the Sixth Circuit, sitting by designation.

** Pursuant to 5 TH C IR. R. 47 .5, the court has

determined that thi s opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. 1 Besam was awarded $360,711 on its counterclaim for Door Control’s failure to pay money due

under the Distributorship Agreement.3

was to award net profits, 2 it w as allowed to

consider other evidence that supported the

amount awarded.

A.

We review de novo a ruling on a motion for

j.m.l. “whether based upon an interpretation of

Texas law or based upon the sufficiency of the

evidence.” I

nfo. Communication Corp. v

. Unisys Corp.

, 181 F.3d 629, 63 3 (5th Ci r.

1999). We review the record as a whole and

draw all reasonable inferences in favor of the

non- moving party. P hillips v. Monroe County

, 311 F.3d 369, 373 (5th Cir. 2002). I n an

action tried to a jury, a motion for j.m.l. challenges the legal sufficiency of the evidence

supporting the verdict. Cozzo v. Tangipahoa

Parish Cou ncil-President Gov’t , 279 F.3d

273, 280 (5th Cir. 2002). Thus, the “‘standard

of review with respect to a j ury verdict is especially deferential.’” I

d

. (quo ting B rown v.

Bryan County, Okla. , 219 F.3d 450, 456 (5th

Cir. 2000)).

B.

In Texas, the pr o per measure of damages

for lost profits is lost net

profits. Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 83

n.1 (Tex. 1992). “[T]he injured party must do

more than show that it suffered some lost profits.” H elena Chem. Co. v. Wilkins

, 4 7

S.W.3d 486, 504 (Tex. 2001). Recovery must

be “predicated on one compl et e calculation,”

and “opinions or estimates of lost profits must

be based on objective facts, figures, or dat a

from which the amount of lost profits may be

ascertained.” S

zczepanik v. First S. Trust Co.

, 883 S.W.2d 648, 649 (Tex. 1994). The plaint iff is not required to calculate lost

profits precisely; rather, “it is suffici ent that

there be dat a from which they may be ascertained with a reasonable d e gree of certainty

and exactness.” T

ex. Instruments, Inc. v. Teletron Energy Mgmt., Inc. , 877 S.W.2d 276, at

279 (Tex. 1994) (quoting Southwest Battery

Corp. v. Owen

, 115 S.W.2d 1097, 1098 (Tex.

1938)). Still, this burden is onerous, and

“Texas courts have not hesitated to direct verdicts where plaint iffs have failed to present evidence of lost profits meeting these standards.”

Info. Communication Corp.

, 181 F.3d at 633.

C.

Door Control contends that the jury prope rly used net profits as the measure of lost

profits. It argues that the jury could have taken the damage expert’s estimate of lost gross

profits of between $8,619,070.94 and $15,-

000,000 and reduced it to $6,000,000 by taking into account future expenses. Door Control reasons that these expenses were predictable, because fina n cial statements from 1997

through the first quarter of 2001 were admitted into evidence, and Door Control ’s controller explained that the financia l st atements

accurately represented Door Control’s income

and expenses.

In Fury Imports, Inc. v . Shakespeare Co.

, 554 F.2d 1376, 1387 (5th Cir. 1977), which

applied New York law, we considered the evidence supporting lost profits damages awarded

to a distributor for the manufacturer’s breach

of contract. Evidence was presented showing

the amount of lost gross profits caused by the

manufacturer’s breach and resulting lost retail

sales. Though the plaintiff presented evidence

that there were mult iple categories of expenses

that would have increased in different ways

had the sales not been lost, there was no estimate of how each

of t hese categories would 2 The district court defined net profits as “what

remains in the conduct of a business after deducting from its total receipts a ll of the expenses

incurred in carrying on the business.”4

have varied with

increased sales, nor even

what the overall effect on expenses might have

b een. Instead, the jury was provided profitand-loss statements from previous years. We

concluded that these financial records did not

provide the jury with sufficient evidence to calculate lost net profits, because the jury had no

way of extrapolating, from the past actual expenses, a predictio n fo r how future expenses

wo uld have increased. A bsent proper guidance, there “was simply no evidence at all as to

net, as distinguished from gross, profits.” Id

.

The reasoning of Fury Imports is persuasiv e here. Although Door Control provided

the jury an es t imate of lost gross profits, it

gave no similar guidance as to how future expenses would have varied. We have thoroughly reviewed the financial records considered by

Door Control’s expert in estimating lost gross

profits. With each financial statement, gross

and net profits varied greatly and we r e not

correlated in any way that is readily apparent.

For example, from 1999 to 2000, gross

profits grew by about 30%, from $2,608,-

9 86.52 to $3,381,366, yet net profits f ell

$120,786.30, a decrease of over 20% from the

previous year. Similarly, the fourth quarter of

1999 represented both the best quarter of the

year for gross profits and the worst quarter of

the year for net profits. This historical data is

insufficient to allow a jury to determine, with

reasonable certainly, how expenses would

have changed in future years. 3 D.

Door Control contends that other evidence

supports t he award. Its controller, Ricky

Northcutt, testified that, based on a year-end

comparison of net profits from 1999 and 2000,

Door Control exper i enced a decrease in net

profits of $120,000. He also stated that in the

first quarter of 2001, profits were down $483,-

000 compared to the first q uarter of 2000.

Don Gilchrist, the owner of Door Control, test ified that it would take five to ten years to return Door Control to the level of profitability

it experienced when it was Besam’s distributor

for the north/east/central Texas region. Door

Control contends that a jury could find that it

suffered $6,000,0 00 of lost net profits based

on the combined testimony of Northcut t and

Gilchrist, by projecting the two quarters of reduced net profit testified to by Northcutt over

the time per io d o f injury testified to by Gilchrist.

The testimony of Northcutt and Gilc hrist

d o es not combine to form a calculation that

demonstrates lost net profits with the reasonable certainty necessary to support an award of

damages. Evidence t o establish profits must

not be uncertain or spec ulat ive. T ex. Instruments

, 877 S.W.2d at 279. Northcutt testified

only that profits were lower than in the previous year; he did not state how large those pro3 Even were we to find that these past expenses

were competent evidence to predict future expenses, the records contain no information that even

arguably could s upport a verdict of $6,000,000.

From 1998 through 2000, net profits were 17% of

gross profits. Had the jury determined that 17% of

(continued...) 3 (...continued)

the lost gross profits were likely to have remained

as net profits after expenses, it could hav e employed the Door Control expert’s p rojected lost

gross profits and awarded between $1,500,000 and

$2,500,000. The best year on record yielded net

profits that were 22% of gross profits, which, if extrapolated, would lead to an estimate of lost net

profits of between

$1,900,000 and $3,000,000.

The award of $6,000,000 is 40% t o 70% of the

range of projected lost gross profits, a percentage

nowhere suggested by the financial records.5

fits would have been absent Besam’s fraud,

nor did he even assert that thi s drop was attributable to Bes am’s conduct. He also provided no evidence that could be used as the

basis for a projection of future net profits beyond the two quarters named.

Gilchrist o ffered no support, based on objective facts o r data, for his assertion that it

would take five to ten years for Door Control

to regain profitability. 4 Gilchrist’s speculative

testim o ny is not competent evidence to support an award of lost profits. S ee Szczepanik

, 883 S.W.2d at 650. On this record, there is no

evidence of lost profits damages, so the denial

of Besam’s motion for j.m.l. is reversed. 5

III.

Door Control contends that the d i strict

court erred in granting Besam’s motion for

j.m.l. on the breach of contract claim, because

Door Control presented sufficient evidence to

allow a r easonable jury to find that Besam’s

termination of Door Control’s north/east/central Texas distributorship breached the Distribut o rship Agreement. Door Control argues

that the agreement had been orally modified

and that Besam breached the agreement as

modified. Besam avers that the Uniform Commercial Code’s statute of frauds, N.J. S TAT

. A NN

. § 12 A:2-201, applies to the agreement,

r equiring that any modifications had to be in writing.

Th e Distribution Agreement contains a

clause that prohibits modificationof the contract except by a written agreement by a duly

authorized Besam representative. If the New

Jersey common law for contracts applies, 6 the

D istribution Agreement could have been mod i

fied orally, no t withstanding this provision;

New Jersey law allows every agreement, no

matter how firmly d rawn, to be modified by

another agreement. 7 The Uni form Commercial

Code covers all contracts for the sale of goods

sold for $500 or m ore. N.J. S TAT

. A NN

. §

12A:2-201(1). Had the UCC applied to the

contract, its statut e o f frauds would have

required that all m

o difications be in writing.

See § 12A:2-209; 5-80 N.J. T RANSACTION

G UIDE § 80.34.

“[B]ecause of the mixed character of many

distributor s hips, the UCC’s statute of frauds

may o r may not apply in a given case.” C ustom Communicat ions Eng’g, Inc. v. E.F.

Johnson Co.

, 636 A.2d 80, 85 (N.J. Super. Ct.

App. Div. 199 3). C ustom Communications

distin guishes between contracts involving a

transaction of goods plu s incidental services,

which are covered by the UCC, and contracts

for services plus the in cidental sale of goods,

which are covered by customary contract law.

Id . at 83. The court in C ustom Communic a

tions found the law of other jurisdictions per4 T o provide context to the remarks, we note

that Gilchrist next declared that it would also take

“take thousands of sales calls to get people to understand the new lin e” and “probably five to ten

million dollars.” His testimony was based on conjecture, not reasoned analysis supported by facts.

5 Besam challenges the award of lost profits on

several other grounds. Because the evidence is insufficient to support lost profit damages, we need

not address those arguments. 6 The distributorship agreement provides that

New Jersey law controls the performance and construction of the contract.

7 Estate of Connelly v. United States , 398 F.

Supp. 815, 827 (D.N.J. 1975) (“Even a formal

agreement which expressly states that it cannot be

modifiedexcept in writing, is subject to modification by oral agreement since the requirement for

a writing is itself subject to modification.”).6

suasive, stating:

The common theme expressed in nearly

all of the cases is that, although m ost

dealership or distributorship agreements

involve more than a mere sale of goods,

the sales aspect of the relationship predomi n ates. Accordingly, courts have

not hesit a ted to conclude that a direct

dealership agreement, as here, is subject

to the

. . . UCC. We adopt the majority

rule as sound, since it is entirely consistent with the underlying purposes of the

UCC: to foster consistency and predictability in the commercial marketplace.

Id

. at 84. S ee also Spring Motors Distribs.,

Inc. v. Ford Motor Co.

, 489 A.2d 660, 668

(N.J. 1985) (“[T]he U.C.C. is the more appropriate v ehicle for resolving commercial disputes arising out of business transactions

between persons in a distributive chain.”).

New Jersey law adopts a strong presum ption that the UCC applies to distribution

agreements. The Distribution Agreement is

sufficiently similar to those found in the many

cases cited by the C ustom Communications

court to apply the UCC statute of frauds to its

enforcement. C ustom Communications

, 6 3 6

A.2d at 84 (citing cases) . Oral modifications

t herefore were not allowed. The agreement

provided that it could be t e rminated for any

reason on thirty days’ notice. Besam exercised

its rights in

accordance with this provision

when it terminated Door Control’s distributorship, so the district court properly granted

j.m.l. in this regard.

IV.

Door Control appeals the j.m.l. with regard

to its claim for breach of duty of good faith

and fair dealing. It argues that it presented suffi cient evidence for a jury to find that Besam intended to deprive Door Control of its

distributorship befor e t he time of termination

and that it withheld this information from Door

Control in violation of the implied covenant of

good faith a nd fair dealing found in the contract under New Jersey law. Besam answers

that Door Control has waived the right to argue that New Jersey law applies, and Besam

contends that, under Texas law, the duty of

good faith and fair dealing does not extend to

ordinary contractual relationships.

A.

Besam asserts that Door Control waived its

argument under New Jersey law because it did

not specifically raise New Jersey law in its oral

response to Besam’s motion for j.m.l. The

record demonstrates that the district court was

suff i ciently aware of the grounds for Door

Control’s objections t o Besam’s motion for

j.m.l., including its position under New Jersey

law.

Fo rmal exceptions to rulings or orders

of the court are unnecessary; but for all

p urposes for which an exception has

heretofore been necessary it is sufficient

that a party, at t he time the ruling or

order of the court is made or sought,

makes known to the court th e acti on

which the party desires the court to take

or the party’s objection to the action of

the court and the grounds therefor; and,

if a party has no opportuni ty to object to

a ruling or order at the time it is made,

the absence of an objection d oes not

thereafter prejudice the party.

F ED

. R. C IV

. P. 46. “The purpose of the rule is

that the district court should be given notice of

an alleged defect so the court has an opportunity to cure it.” H

artford Lloyd’s Ins. Co. v7

Teachw orth

, 898 F.2d 1058, 1060 (5th Ci r.

1990).

Normally, “that pur p ose can be adequately served only by the making of an

objection on the record, but if the court

and the other litigants know what action

a party desires th e court to take, the

purpose of the rule is served.” Stone v.

Morris, 546 F .2d 730, 736 (7th Ci r.

1976). In such circumstances, a formal

obj ection is not required, “and the failure of the court to take the desired action may be asserted as error on appeal.”

Id. at 1060-61 ; see also 9 C H ARLES A.

W RIGHT & A RTHUR R. M ILLER

, F E DERAL

P RACTICE AND P ROCEDURE § 2472, at 92-105

(2d ed. 1995).

Door Control made a pretrial motion that

was never ruled on, asking the court to recognize the applicability of New Jersey law to all

contractual claims. In the pretrial order, the

applicability of New Jersey law to the claim for

breach of good faith and fair dealing was listed

specifically as a c o nt ested issue of law. The

district court never ruled on the question.

It is apparent that neither side was expected

to say much regarding the motions, because

the court decided that it was unnecessary to

listen to arguments with which it was already

familiar. 8 As soon as both sides had finished, the court announced that it already had prepared its ruling, which it began reading. After

listing all of Door Control’s claims except the

fraud claim, the court stated that it “finds that

plaintiff has failed to present legally-sufficient

evidence, regardless of whether Texas or new

8 Moments afte

r Besam’s trial counsel,

Mr.Burke, began making his motion for j.m.l., the

court interrupted him:

THE COURT: I don’t want you to go into

the testimony. Just make your motions, and

I think it is broad enough the way you have

already made it, unless you want to add to

it.

(continued...) 8 (...continued)

MR. BURKE: If I can maybe say one sentence about each one of the plaintiff’s claims

and limit it to that?

THE COURT: I don’t think that is going to

be necessary.

Burke proceeded quickly to outline his motion, and

at his conclusion, Mr. Travis, trial counsel for

Door Control, began.

MR. TR AVIS: May I respond, Your

Honor?

THE COURT: Briefly.

MR. TRAVIS: Your Honor, I will endeavor–

T HE COURT: Your response has been

what you have been putting on for four

days.

MR. BURKE: I was going to make your

job easie r and make a concession SS I was

goi ng to make your job easier and concede

on some SS

certain claims. Would you like

me to do that, or shall we keep all our

claims?

THE COURT: If you can be brief about it.

I’ve heard the evidence for four days. I

don’t think it is necessary for you to repeat

it to me.

At the court’s instruction, counsel quickl y listed

which claims he was withdrawing and which ones

he intended to pursue.8

Je rsey law controls, such that a reasonable

Jury could find in it s favor on these claims.”

Consequently, before the motion for j.m.l. was

made, Door Control had sufficiently made

known to the court its position on the applicabilit y of New Jersey law to satisfy the requirements of rule 46.

B.

The UCC, including its choice-of-law

provisi o n, applies to the Distributorship

Agreement. S ee Davidson Oil Country Supply

Co. v. Kloc kner, Inc. , 908 F.2d 1238, 1248

(5th Cir. 1990). The relevant provisio n is

identical in the law of Texas and New Jersey;

it provides that “when a transaction bears a

reasonable relat ion to this State and also to

another state or nation the pa rt ies may agree

that the law either of this State or of such

other state or nation shall g o vern their rights

and duties.” T E X .B US

. & C OM .C ODE A NN

. § 1.105(a); N.J. S TAT

. § 12A:1-105(1).

This requirement is satisfied here with respect t o Texas and New Jersey. New Jersey

law therefore applies to the issue of breach of

good faith and fair dealing, because the choice

of law provision in the Distributorship Agreement provides that New Jersey law applies to

the performance and construction of the agreement.

C.

Under New Jersey law, every contract has

an impl i ed covenant of good faith and fair

dealing. O nderdonk v. P resbyterian Homes

, 425 A.2d 1057, 1062 (N.J. 1981). In Bak-ALum Corp. of Am. v. Alcoa Bldg. Prods., Inc.

, 351 A.2d 349, 350-52 (N.J. 1976), the court

held that a manufacture r breached its implied

covenant of good faith and fair dealing when it

failed to tell a distributor that it was planning

to en d t he exclusivity of the distributor’s territory, knowing t hat the distributor was investing substantial sums of money to expand

its operations within the territory.

Do o r Control presented evidence to support a claim under breach of good faith and

fair dealing . It demonstrated that Besam attempted to purchase all or part of Door Control on more than one occasion, but, each time,

Door Control refused the offer. There also

was evidence t h at Besam attempted to hire

several Door Control employees months before Besam terminated the distributorship. Evidence indicated that Besammay have contact ed competitors of Door Control in attempts to purchase them, potentially in an effort to transfer the distributorship to the newly

owned competitor.

Gilcrest also testified that he received a

secr et call from a Besam employee advising

him to look for a second line of doors, because

others at B esam were “planning on doing

som e t hings with our distributorship that he

didn’t think was right.” Door Control presented sufficient evidence for a reasonable jury to

find that Besam breached an implied covenant

of good faith and fair dealing under New Jersey law , so the j.m.l. in this respect is reversible error.

V.

Door Control argues that the district court

erred in granting Besam’s motion for j.m.l. on

the torti ous interference claim, because Doo r

Control presented sufficient evidence for a jury

to find that Besam torti ous ly interfered with

employment contracts between Door Control

and its em

plo yees. Besam argues that under

Texas law, third-party interf e rence in at-will

employment is not torti ous interference an d

that competitors are privileged to compete for

employees’ services.9 A.

Texa s law adopts the view of the second

Restatement that employment at will is treated

analogously to prospective contracts with respect to torti ous interference: 9 “[T]o establish

liabilit y for interference with a prospect i ve

contractual or business relation th e plaintiff

must prove that it was harme d by the defendant’s conduct that was either independently

torti ous or unlawful. By ‘independently tortious’ we mean conduct that would violate

some other recognized tort duty.’” W al-Mart

, 52 S.W.3d at 713. This holding employs more

limit ing language than did the second Restatem ent or prior Texas law, though the co urt

noted “that the case law is generally consistent

with this positi on as a m atter of outcom es as

distinct from articulation.” Id . at 721.

We read Wal-Mart to apply to at-will contracts. Because Door Co nt rol has neither

proven nor alleged any independently torti ous

or unlawful conduct by Besam in its efforts to

lure Door Control’s empl o yees, j.m.l. on the

claim of torti ous interference with res pect to all at will employees was proper. 10

B.

One former D oor Control employ ee, Patrick L yness, was under an employment contract that contained a covenant not to compete

when he left to work for Besam; therefore, interference with his employment must be analyzed separately. Evidence indicated that Besam contacted Lyness about potential employment before he quit his job and that he went to

work for Besam two weeks after leaving Door

Control.

Lyness’s employment contract and covena nt not to compete, if valid, may form the

basis of a claim for interference with contractual relations. Travel Masters, Inc. v. Star

Tours, Inc.

, 827 S.W.2d 830, 833 (Tex. 1991).

9 See Sterner v. Marathon Oil Co.

, 767 S.W.2d

686, 689 (Tex. 1989) (citing R ESTATEMENT (S EC

OND ) OF T ORTS § 766 comment g); Wal-Mart

Stores, Inc. v. Sturges

, 52 S.W.3d 711, 719 (Tex.

2001) (“The second R estatement

, like the first,

provid e d that lawful competition was not tortious

interference with a prospective business relation

although it might be tortious interference with any

contract not terminable at will

. ”) (emphasis added); see also R ESTATEMENT (S ECOND ) OF T ORTS

§ 766 comment g (“One’s interest in a contract terminable at will is primarily an interest in future

relations between the parties, and he has no legal

assurance of them. For this reason, an interference

with this interest is close ly analogous to interference with prospective contractual relations.”). 10 Before Wal-Mart was decided, the view was

that “Texas law supports a claim for interference

with a terminable- a t-will contract where a

third-party has induced the contract’s breach without any economic justification or goal other than

evisceratio n of the underlying contract.” C .E.

Servs., Inc. v. Control Data Corp.

, 759 F.2d 1241,

1249 n.11 (5th Cir. 1985). With an economic motive, and absent otherwise illegal conduct, however,

the conduct is justified. Id . Door Control’s claim

fails under this standard, as we ll, because it has

asserted that Besam’s goal was economic in nature.

We further recognize that the Texas Suprem e

Court, in the context of torti ous interference with

employment at will, has held that legal justification

or excuse is an affi r ma tive defense on which the

def endant has the burden of proof. S terner v.

Marathon Oil Co.

, 767 S.W.2d 686 690. We read

that holding to be limited to the context therein

described, whe

re a third-party is alleged to have

i ntervened to cause an employer to terminate an

employee. S ee id. at 688. In any case, Besam has

asserted legal justification, and it is uncontroverted

that such justification existed.10

Besam has not cha llenged the validity of this

agreement, nor has it offered a defense. 11 The

district court co m mitted reversible error in

granting j.m.l. on Door Control’s claim of tortious interference with

Lyness’s employment

contract.

The judgment is AFFIRMED in part, REVERSED in

part, and REMANDED for further appropriate proceedings.

11 Besam’s arguments addressed only the l a w

ap plicable to at-will employees. Though Besam

asserts that it is a competitor, “[t]he fact that one is

a competitor of another for the business of a third

person does not prevent his causing a breach of an

existing contract with the other from being an

i mpr oper interference if the contract is not

terminable at will.” R E STATEMENT (S ECOND ) OF

T ORTS § 768(2); see also Wal-Mart

, 52 S.W.3d at

719 n.32 (quoting § 768).