Door Control Svcs v. Besam Automated

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-41269
_______________
DOOR CONTROL SERVICES, INC.,
Plaintiff-Counter-Defendant-Appellee-
Cross-Appellant,
VERSUS
BESAM AUTOMATED ENTRANCE SYSTEMS, INC.,
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, 2003

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Before JONES, SMITH, and SILER,*
Circuit Judges.**
JERRY E. SMITH, Circuit Judge:
Besam Automated Entrance Systems, Inc.
(“Besam”), appeals a jury award of $6,000,-
000 to Door Control Services, Inc. (Door
Control”), for fraud. Door Control cross-ap-
peals a judgment as a matter of law (“j.m.l.”)
on its claims of breach of contract, breach of
duty of good faith and fair dealing, and tor-
tious interference with 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 includ-
ed the Dallas and Fort Worth markets. After
1986, their legal relationship was controlled by
a written agreement (the “Distributorship
Agreement”); Door Control claims the agree-
ment has been orally modified over the years.
In 1999, the Houston area distributor of
Besam doors faced serious financial difficulties
and could not meet installation deadlines for
several large clients; Door Control helped Be-
sam meet those installation deadlines and
claims that, in return, Besam orally agreed to
grant it a distributorship for the Houston and
San Antonio areas. Door Control took out a
loan to finance its expansion into those mar-
kets.
In February or March 2000, Besam in-
formed Door Control that it would directly
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 Con-
trol’s north/east/central Texas distributorship.
Lacking a major door line to sell, Door Con-
trol suffered a decline in business.
B.
Door Control sued Besam in Texas state
court alleging, inter alia, breach of contract,
breach of the duty of good faith and fair deal-
ing, fraud, and tortious interference. Besam
removed the case to federal court based on di-
versity jurisdiction and asserted counterclaims.
The case proceeded to trial, and Besam moved
for j.m.l. at the close of Door Control’s pre-
sentation 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 con-
tains insufficient evidence to support the ver-
dict, in light of the fact that Door Control’s
damages expert testified as to lost gross prof-
its, rather than lost net profits as required un-
der Texas law. Door Control argues that be-
cause the jury was properly instructed that it * Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Besam was awarded $360,711 on its counter-
claim for Door Control’s failure to pay money due
under the Distributorship Agreement.

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was to award net profits,2 it was 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.” Info. Communication Corp. v.
Unisys Corp., 181 F.3d 629, 633 (5th Cir.
1999). We review the record as a whole and
draw all reasonable inferences in favor of the
non- moving party. Phillips v. Monroe Coun-
ty, 311 F.3d 369, 373 (5th Cir. 2002). In an
action tried to a jury, a motion for j.m.l. chal-
lenges the legal sufficiency of the evidence
supporting the verdict. Cozzo v. Tangipahoa
Parish Council-President Gov’t, 279 F.3d
273, 280 (5th Cir. 2002). Thus, the “‘standard
of review with respect to a jury verdict is es-
pecially deferential.’” Id. (quoting Brown v.
Bryan County, Okla., 219 F.3d 450, 456 (5th
Cir. 2000)).
B.
In Texas, the proper measure of damages
for lost profits is lost net profits. Holt Ather-
ton 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 pro-
fits.” Helena Chem. Co. v. Wilkins, 47
S.W.3d 486, 504 (Tex. 2001). Recovery must
be “predicated on one complete calculation,”
and “opinions or estimates of lost profits must
be based on objective facts, figures, or data
from which the amount of lost profits may be
ascertained.” Szczepanik v. First S. Trust Co.,
883 S.W.2d 648, 649 (Tex. 1994).
The plaintiff is not required to calculate lost
profits precisely; rather, “it is sufficient that
there be data from which they may be ascer-
tained with a reasonable degree of certainty
and exactness.” Tex. Instruments, Inc. v. Tele-
tron 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 ver-
dicts where plaintiffs have failed to present ev-
idence of lost profits meeting these standards.”
Info. Communication Corp., 181 F.3d at 633.
C.
Door Control contends that the jury prop-
erly used net profits as the measure of lost
profits. It argues that the jury could have tak-
en 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 tak-
ing into account future expenses. Door Con-
trol reasons that these expenses were predict-
able, because financial statements from 1997
through the first quarter of 2001 were admit-
ted into evidence, and Door Control’s con-
troller explained that the financial statements
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 evi-
dence 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 multiple categories of expenses
that would have increased in different ways
had the sales not been lost, there was no esti-
mate of how each of these categories would
2 The district court defined net profits as “what
remains in the conduct of a business after deduct-
ing from its total receipts all of the expenses
incurred in carrying on the business.”

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have varied with increased sales, nor even
what the overall effect on expenses might have
been. Instead, the jury was provided profit-
and-loss statements from previous years. We
concluded that these financial records did not
provide the jury with sufficient evidence to cal-
culate lost net profits, because the jury had no
way of extrapolating, from the past actual ex-
penses, a prediction for how future expenses
would have increased. Absent proper guid-
ance, there “was simply no evidence at all as to
net, as distinguished from gross, profits.” Id.
The reasoning of Fury Imports is persua-
sive here. Although Door Control provided
the jury an estimate of lost gross profits, it
gave no similar guidance as to how future ex-
penses would have varied. We have thorough-
ly 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 were not
correlated in any way that is readily apparent.
For example, from 1999 to 2000, gross
profits grew by about 30%, from $2,608,-
986.52 to $3,381,366, yet net profits fell
$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 the award. Its controller, Ricky
Northcutt, testified that, based on a year-end
comparison of net profits from 1999 and 2000,
Door Control experienced 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 quarter of 2000.
Don Gilchrist, the owner of Door Control, tes-
tified that it would take five to ten years to re-
turn 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 $6,000,000 of lost net profits based
on the combined testimony of Northcutt and
Gilchrist, by projecting the two quarters of re-
duced net profit testified to by Northcutt over
the time period of injury testified to by Gil-
christ.
The testimony of Northcutt and Gilchrist
does not combine to form a calculation that
demonstrates lost net profits with the reason-
able certainty necessary to support an award of
damages. Evidence to establish profits must
not be uncertain or speculative. Tex. Instru-
ments, 877 S.W.2d at 279. Northcutt testified
only that profits were lower than in the previ-
ous year; he did not state how large those pro-
3 Even were we to find that these past expenses
were competent evidence to predict future expens-
es, the records contain no information that even
arguably could support 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 have em-
ployed the Door Control expert’s projected 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 ex-
trapolated, 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% to 70% of the
range of projected lost gross profits, a percentage
nowhere suggested by the financial records.

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fits would have been absent Besam’s fraud,
nor did he even assert that this drop was at-
tributable to Besam’s conduct. He also pro-
vided no evidence that could be used as the
basis for a projection of future net profits be-
yond the two quarters named.
Gilchrist offered no support, based on ob-
jective facts or data, for his assertion that it
would take five to ten years for Door Control
to regain profitability.4 Gilchrist’s speculative
testimony is not competent evidence to sup-
port an award of lost profits. See 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 district
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 reasonable jury to find that Besam’s
termination of Door Control’s north/east/cen-
tral Texas distributorship breached the Distrib-
utorship Agreement. Door Control argues
that the agreement had been orally modified
and that Besam breached the agreement as
modified. Besam avers that the Uniform Com-
mercial Code’s statute of frauds, N.J. STAT.
ANN. § 12A:2-201, applies to the agreement,
requiring that any modifications had to be in
writing.
The Distribution Agreement contains a
clause that prohibits modification of the con-
tract except by a written agreement by a duly
authorized Besam representative. If the New
Jersey common law for contracts applies,6 the
Distribution Agreement could have been modi-
fied orally, notwithstanding this provision;
New Jersey law allows every agreement, no
matter how firmly drawn, to be modified by
another agreement.7 The Uniform Commercial
Code covers all contracts for the sale of goods
sold for $500 or more. N.J. STAT. ANN. §
12A:2-201(1). Had the UCC applied to the
contract, its statute of frauds would have
required that all modifications be in writing.
See § 12A:2-209; 5-80 N.J. TRANSACTION
GUIDE § 80.34.
“[B]ecause of the mixed character of many
distributorships, the UCC’s statute of frauds
may or may not apply in a given case.” Cus-
tom Communications Eng’g, Inc. v. E.F.
Johnson Co., 636 A.2d 80, 85 (N.J. Super. Ct.
App. Div. 1993). Custom Communications
distinguishes between contracts involving a
transaction of goods plus incidental services,
which are covered by the UCC, and contracts
for services plus the incidental sale of goods,
which are covered by customary contract law.
Id. at 83. The court in Custom Communica-
tions found the law of other jurisdictions per-
4 To 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 un-
derstand the new line” and “probably five to ten
million dollars.” His testimony was based on con-
jecture, not reasoned analysis supported by facts.
5 Besam challenges the award of lost profits on
several other grounds. Because the evidence is in-
sufficient to support lost profit damages, we need
not address those arguments.
6 The distributorship agreement provides that
New Jersey law controls the performance and con-
struction 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
modified except in writing, is subject to modifi-
cation by oral agreement since the requirement for
a writing is itself subject to modification.”).

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suasive, stating:
The common theme expressed in nearly
all of the cases is that, although most
dealership or distributorship agreements
involve more than a mere sale of goods,
the sales aspect of the relationship pre-
dominates. Accordingly, courts have
not hesitated 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 consis-
tent with the underlying purposes of the
UCC: to foster consistency and predict-
ability in the commercial marketplace.
Id. at 84. See 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 appro-
priate vehicle for resolving commercial dis-
putes arising out of business transactions
between persons in a distributive chain.”).
New Jersey law adopts a strong presump-
tion that the UCC applies to distribution
agreements. The Distribution Agreement is
sufficiently similar to those found in the many
cases cited by the Custom Communications
court to apply the UCC statute of frauds to its
enforcement. Custom Communications, 636
A.2d at 84 (citing cases). Oral modifications
therefore were not allowed. The agreement
provided that it could be terminated for any
reason on thirty days’ notice. Besam exercised
its rights in accordance with this provision
when it terminated Door Control’s distributor-
ship, 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
sufficient evidence for a jury to find that Be-
sam intended to deprive Door Control of its
distributorship before the time of termination
and that it withheld this information from Door
Control in violation of the implied covenant of
good faith and fair dealing found in the con-
tract under New Jersey law. Besam answers
that Door Control has waived the right to ar-
gue 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
sufficiently aware of the grounds for Door
Control’s objections to Besam’s motion for
j.m.l., including its position under New Jersey
law.
Formal exceptions to rulings or orders
of the court are unnecessary; but for all
purposes for which an exception has
heretofore been necessary it is sufficient
that a party, at the time the ruling or
order of the court is made or sought,
makes known to the court the action
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 opportunity to object to
a ruling or order at the time it is made,
the absence of an objection does not
thereafter prejudice the party.
FED. R. CIV. 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 opportu-
nity to cure it.” Hartford Lloyd’s Ins. Co. v

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Teachworth, 898 F.2d 1058, 1060 (5th Cir.
1990).
Normally, “that purpose can be ade-
quately 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 the court to take, the
purpose of the rule is served.” Stone v.
Morris, 546 F.2d 730, 736 (7th Cir.
1976). In such circumstances, a formal
objection is not required, “and the fail-
ure of the court to take the desired ac-
tion may be asserted as error on appeal.”
Id. at 1060-61; see also 9 CHARLES A.
WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2472, at 92-105
(2d ed. 1995).
Door Control made a pretrial motion that
was never ruled on, asking the court to recog-
nize 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 contested 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 pre-
pared 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 after 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 sen-
tence 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. TRAVIS: May I respond, Your
Honor?
THE COURT: Briefly.
MR. TRAVIS: Your Honor, I will en-
deavor–
THE COURT: Your response has been
what you have been putting on for four
days.
MR. BURKE: I was going to make your
job easier and make a concessionSSI was
going to make your job easier and concede
on someSScertain 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 quickly listed
which claims he was withdrawing and which ones
he intended to pursue.

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Jersey law controls, such that a reasonable
Jury could find in its 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 applica-
bility of New Jersey law to satisfy the require-
ments of rule 46.
B.
The UCC, including its choice-of-law
provision, applies to the Distributorship
Agreement. See Davidson Oil Country Supply
Co. v. Klockner, Inc., 908 F.2d 1238, 1248
(5th Cir. 1990). The relevant provision is
identical in the law of Texas and New Jersey;
it provides that “when a transaction bears a
reasonable relation to this State and also to
another state or nation the parties may agree
that the law either of this State or of such
other state or nation shall govern their rights
and duties.” TEX.BUS. & COM.CODE ANN.
§ 1.105(a); N.J. STAT. § 12A:1-105(1).
This requirement is satisfied here with re-
spect to 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 Agree-
ment provides that New Jersey law applies to
the performance and construction of the agree-
ment.
C.
Under New Jersey law, every contract has
an implied covenant of good faith and fair
dealing. Onderdonk v. Presbyterian Homes,
425 A.2d 1057, 1062 (N.J. 1981). In Bak-A-
Lum Corp. of Am. v. Alcoa Bldg. Prods., Inc.,
351 A.2d 349, 350-52 (N.J. 1976), the court
held that a manufacturer breached its implied
covenant of good faith and fair dealing when it
failed to tell a distributor that it was planning
to end the exclusivity of the distributor’s ter-
ritory, knowing that the distributor was in-
vesting substantial sums of money to expand
its operations within the territory.
Door Control presented evidence to sup-
port a claim under breach of good faith and
fair dealing. It demonstrated that Besam at-
tempted to purchase all or part of Door Con-
trol on more than one occasion, but, each time,
Door Control refused the offer. There also
was evidence that Besam attempted to hire
several Door Control employees months be-
fore Besam terminated the distributorship. Ev-
idence indicated that Besam may have con-
tacted competitors of Door Control in at-
tempts to purchase them, potentially in an ef-
fort to transfer the distributorship to the newly
owned competitor.
Gilcrest also testified that he received a
secret call from a Besam employee advising
him to look for a second line of doors, because
others at Besam were “planning on doing
some things with our distributorship that he
didn’t think was right.” Door Control present-
ed sufficient evidence for a reasonable jury to
find that Besam breached an implied covenant
of good faith and fair dealing under New Jer-
sey law, so the j.m.l. in this respect is revers-
ible error.
V.
Door Control argues that the district court
erred in granting Besam’s motion for j.m.l. on
the tortious interference claim, because Door
Control presented sufficient evidence for a jury
to find that Besam tortiously interfered with
employment contracts between Door Control
and its employees. Besam argues that under
Texas law, third-party interference in at-will
employment is not tortious interference and
that competitors are privileged to compete for
employees’ services.

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A.
Texas law adopts the view of the second
Restatement that employment at will is treated
analogously to prospective contracts with re-
spect to tortious interference:9 “[T]o establish
liability for interference with a prospective
contractual or business relation the plaintiff
must prove that it was harmed by the defen-
dant’s conduct that was either independently
tortious or unlawful. By ‘independently tor-
tious’ we mean conduct that would violate
some other recognized tort duty.’” Wal-Mart,
52 S.W.3d at 713. This holding employs more
limiting language than did the second Restate-
ment or prior Texas law, though the court
noted “that the case law is generally consistent
with this position as a matter of outcomes as
distinct from articulation.” Id. at 721.
We read Wal-Mart to apply to at-will con-
tracts. Because Door Control has neither
proven nor alleged any independently tortious
or unlawful conduct by Besam in its efforts to
lure Door Control’s employees, j.m.l. on the
claim of tortious interference with respect to
all at will employees was proper.10
B.
One former Door Control employee, Pat-
rick Lyness, was under an employment con-
tract that contained a covenant not to compete
when he left to work for Besam; therefore, in-
terference with his employment must be ana-
lyzed separately. Evidence indicated that Be-
sam contacted Lyness about potential employ-
ment before he quit his job and that he went to
work for Besam two weeks after leaving Door
Control.
Lyness’s employment contract and cove-
nant not to compete, if valid, may form the
basis of a claim for interference with contrac-
tual 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 RESTATEMENT (SEC-
OND) OF TORTS § 766 comment g); Wal-Mart
Stores, Inc. v. Sturges, 52 S.W.3d 711, 719 (Tex.
2001) (“The second Restatement, like the first,
provided 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 add-
ed); see also RESTATEMENT (SECOND) OF TORTS
§ 766 comment g (“One’s interest in a contract ter-
minable 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 closely analogous to interfer-
ence with prospective contractual relations.”).
10 Before Wal-Mart was decided, the view was
that “Texas law supports a claim for interference
with a terminable-at-will contract where a
third-party has induced the contract’s breach with-
out any economic justification or goal other than
evisceration 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 mo-
tive, and absent otherwise illegal conduct, however,
the conduct is justified. Id. Door Control’s claim
fails under this standard, as well, because it has
asserted that Besam’s goal was economic in nature.
We further recognize that the Texas Supreme
Court, in the context of tortious interference with
employment at will, has held that legal justification
or excuse is an affirmative defense on which the
defendant has the burden of proof. Sterner v.
Marathon Oil Co., 767 S.W.2d 686 690. We read
that holding to be limited to the context therein
described, where a third-party is alleged to have
intervened to cause an employer to terminate an
employee. See id. at 688. In any case, Besam has
asserted legal justification, and it is uncontroverted
that such justification existed.

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10
Besam has not challenged the validity of this
agreement, nor has it offered a defense.11 The
district court committed reversible error in
granting j.m.l. on Door Control’s claim of tor-
tious interference with Lyness’s employment
contract.
The judgment is AFFIRMED in part, RE-
VERSED in part, and REMANDED for fur-
ther appropriate proceedings.
11 Besam’s arguments addressed only the law
applicable 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
improper interference if the contract is not
terminable at will.” RESTATEMENT (SECOND) OF
TORTS § 768(2); see also Wal-Mart, 52 S.W.3d at
719 n.32 (quoting § 768).

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