* P ursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except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. United States Court of Appeals

Fifth Circuit



## FILED

November 21, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11314

PATRICK H. HIGHTOWER, individually and d/b/a P&D Consulting and

Contracting Engineers,

Plaintiff-Appellant-CrossAppellee,

versus

KIDDE-FENWAL, INC., d/b/a Chemetron Fire Systems, Inc.,

Defendant-Appellee-CrossAppellant,

______________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 04-CV-153-A

______________________

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Alleging tortious interference with contract, Patrick

Hightower sued Chemetron in district court. The court granted

summary judgment to Chemetron. We affirm.

Hightower beat out Chemetron in bidding to design and provide

a fire protection system for Alcom. There were significant

problems w ith his performance - Hightower ran late and provided1 Privilege and justification are affirmative defenses to

tortious interference with contract in Texas. D avid L. Aldridge

Co. v. Microsoft Corp. , 995 F. Supp. 728, 742 (S.D. Tex. 1998).

2 inadequate drawings for the system on multiple occasions. Alcom’s

parent company, Alcan, hired Chemetron, with which it had had a

long relationship, to review Hightower’s work. Chemetron’s reviews

were critical of his work, but Hightower points to only one

statement as false.

The district court stated, and Hightower does not contest on

appeal (aside from making a conclusory, unconvincing argument about

a three-inch valve), that the only real dispute regarding the

accuracy of the reviews stemmed from Chemetron’s statement that an

electronic relay selected by Hightower was an older desig n which

Chemetron had stopped using. Hightower claimed that this statement

was false and put him in a bad light. Hightower does not contest

the district court’s conclusion that the evidence here is

ambiguous; more importantly, he does not contest the court’s

conclusion that the ambiguity is irrelevant because Hightower never

contested what really mattered

- that he was planning to use the

older relay. Thus, we consider Chemetron’s reviews to be accurate,

even if highly critical of Hightower.

After more delays and inadequate performance, Alcan directed

Alcom to fire Hightower, which it did.

The district court granted summary judgment to Chemetron after

concluding that it was privileged and justified 1 in its actions2 Threadgill v. Prudential Sec. Group, Inc.

, 145 F.3d 286, 292

(5th Cir. 1998).

3 because its reviews were done pursuant to a reasonable request for

advice and were not false. We review de novo

. 2

We agree with the district court that there is no genuine

issue of material fact and that Chemetron is entitled to judgment

as a matter of law. Hightower argues that privilege and

justification are negated by “sharp dealing,” but even if this were

so, he has not shown any sharp dealing. Although relations between

the parties were acrimonious, allegations t hat Chemetron behaved

“unfairly,” “bellyached,” or spewed negative information about

Hightower are insufficient where there is no evidence that

Chemetron lied in its reviews of Hightower’s work. Similarly,

Hightower has not shown that Chemetron’s position as reviewer was

inherently unfair and should, as a matter of law, void the

affirmative defense.

The only specific action by Chemetron all eged by Hightower

that is arguably at the margin of privilege or justification is

Chemetron’s alleged October 22, 2001 bid for Hightower’s ongoing

project. Even if that allegation was supported by competent

evidence

- the bid appeared in the record as an unauthenticated email

- Hightower has pointed to no authority holding such a bid to

be per se tortious. At the time of the bid, Hightower was almost3 Jack v. State

, 694 S.W.2d 391, 398-99 (Tex. App.

- Sa n

Antonio 1985, writ ref’d n.r.e.) (holding that once a party has

materially breached a contract, the non-breaching party is excused

from further performance); see C.E. Servs. Inc. v. Control D ata

Corp. , 759 F.2d 1241, 1248 (5th Cir. 1985) (holding that inducing

a party to cease contractual relations when it has a right to do so

cannot be tortious).

4 two months late and had presented inadequate drawings. 3

For these reasons, the district court’s grant of summary

judgment to Chemetr on is AFFIRMED. We need not and do not reach

Chemetron’s attack on Hightower’s evidence.

AFFIRMED.