* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BELLEVIEW VALLEY LAND CO., INC., Plaintiff-Appellant,

v. WALTERSCHEID TRUCKING AND FARMS, INC., a New Mexico corporation; HENRY WALTERSCHEID, individually,

Defendants-Appellees. No. 97-2307 (D.C. No. CIV 96-1304) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA andMcKAY , Circuit Judges, and BROWN , ** Senior District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Belleview Valley Land Co. appeals from the districtcourt’s grant of summary judgment to defendants on Belleview’s claimof tortious interference with contract.

“We review the grant or denial of summary judgment de novo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appr opriate if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted). In 1994, Belleview entered into a contract for the purchase of farm property under lease to defendants. Upon Belleview’s tenderof the purchase price, the sellers refused to accept the payment and refused t o close the sale. Belleview ultimately sued in state court for specific perform ance and, in 1995, the sellers conveyed title of the property to Belleview. This suit, based on diversity jurisdiction, followed. The parties stipulated that New Mexico law controls their dispute. Our jurisdiction over this appeals arises from 28 U.S.C. § 1291.-3-

Before the district court, Belleview contended thatdefendants tortiously interfered with the contract for the sale of the pr operty. It argued that defendants offered to buy the property should the contract fal l through as an inducement to break the contract, and that defendants threatened to sue the sellers should they honor the contract. Further, it contended that def endants had no justification to interfere because, beyond the term of the then-curr ent lease to which the sale was already subject, they had no legal rights in connec tion with the property. Applying New Mexico law, the district court conclud ed that Belleview had failed to present evidence demonstrating genuine is sues of material fact as to the existence of either improper means or improper moti ve. Specifically, it ruled that Belleview’s evidence did not support its claim s that defendants had threatened to sue the sellers and that Belleview’s arguments on improper motive fell short of precluding summary judgment because i t had not shown that defendants played an active role in causing the bre ach of contract, and because there was no evidence that defendants acted solely to harm Belleview. On appeal, Belleview contends that the district cou rt misapplied New Mexico law. It argues, for the first time on appea l, that New Mexico law recognizes a claim for tortious interference with c ontract based upon either improper means or improper motive or conduct interfering with a contract performed without justification or privilege. Inde ed, the district court quoted-4-

from Quintana v. First Interstate Bank , 737 P.2d 896, 898 (N.M. Ct. App. 1987) in stating New Mexico law on tortious interference with contract: “[A] plaintiff must demonstrate that the defendant ‘interfered [wi th contractual relations] with an improper motive or by improper means, or acted w ithout justification or privilege.’” District Court Order at 4. However, Belleview did not present this theory of recovery, namely that “[l]iability exists in the absence of an improper motive or means if the interference by the defendan t occurs in the absence of justification or privilege,” Appellant’s Br. at 9, before the district court. It argued generally that defendants were not justified in all egedly acting to interfere with the contract, but not that a lack of justification alone was sufficient basis for bringing suit for tortious interference with contra ct. Therefore, we do not consider the argument on appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc. , 100 F.3d 792, 798-99 (10th Cir.) (appellate courtwill not consider a new theory “that falls under the same ge neral category as an argument presented [below] or . . . a theory that was discus sed in a vague and ambiguous way” before the district court) (quotation omitted) , opinion amended on other grounds , 103 F.3d 80 (10th Cir. 1996). We note, however that Belleview’s proposition contradicts other New Mexico authority on the issue. See M & M Rental Tools, Inc. v. Milchem, Inc. , 612 P.2d 241, 246, 247 (N.M. Ct. App. 1980) (showing of improper means or improper motive “requ ired for liability;” question-5-

of privilege arises only “if the acts charged wouldbe tortious on the part of an unprivileged defendant”) (quotation omitted). Belleview also challenges the district court’s ruli ngs that its evidence does not establish genuine issues of material fact regar ding the existence of improper motive and improper means. As to improper motive, Belleview contends the facts imply that defendants sought to defeat the contractbetween Belleview and the sellers. This argument is not persuasive. Imprope r motive, as the district court noted, requires some showing that defendants’ aim w as solely to harm Belleview.
See M & M Rental Tools , 612 P.2d at 246. Belleview made no such showing and, indeed, does not argue so on appeal. As to improper means, Belleview maintains that test imony from the underlying state action demonstrates that the defen dants threatened to sue the sellers if they honored the contract with Belleview . However, the only testimony to which Belleview cites is hearsay and therefore c annot be relied on to defeat summary judgment. See Aramburu v. Boeing Co. , 112 F.3d 1398, 1401 n.1 (10th Cir. 1997) (citing Starr v. Pearle Vision, In c. , 54 F.3d 1548, 1555 (10th Cir. 1995)). Finally, Belleview contends generally that numerous questions of fact preclude summary judgment, especially questions reg arding defendants’ intent and good faith. It argues that intent is a questio n of fact precluding summary-6-

judgment. As discussed above, Belleview failed to demonstrate genuine issues of material fact regarding either improper motive o r improper means as those terms are defined under New Mexico law. That inten t is a question of fact and does not relieve Belleview of its burden to meet th e applicable legal standards. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge