No. 12-­--3768 HEALIX INFUSION THERAPY, INCORPORATED v. HEARTLAND HOME INFUSIONS, INC., doing business as HHI Infusion Services

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-­‐‑3768
HEALIX INFUSION THERAPY, INCORPORATED,
Plaintiff-­‐‑Appellant,
v.
HEARTLAND HOME INFUSIONS, INC., doing business as HHI
Infusion Services,
Defendant-­‐‑Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 3772 — James B. Zagel, Judge.
____________________
ARGUED MAY 28, 2013 — DECIDED AUGUST 16, 2013
____________________
Before EASTERBROOK, Chief Judge, and WILLIAMS and
HAMILTON, Circuit Judges.
EASTERBROOK, Chief Judge. Healix Infusion Therapy, Inc.,
and HHI Infusion Services compete in the infusion therapy
services business. Infusion therapy is the administration of
substances such as pharmaceuticals intravenously or by any
method other than ingestion. Some medical care providers
wish to offer these services to patients in the office of their

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No. 12-­‐‑3768 2
medical practice. For instance, an oncologist’s office might
have an area where patients can receive intravenous chemo-­‐‑
therapy. Healix and HHI provide support: premixed phar-­‐‑
maceuticals, nurses to administer the drugs, billing services,
and other necessities of an in-­‐‑office infusion therapy center.
Their customers are physicians and medical practices.
In June 2007 Healix recruited 3 Tree Infectious Disease
Clinic, LLC (the Clinic), a medical practice in Burien, Wash-­‐‑
ington, as a new customer. The Clinic had two members:
David Keller, a physician, and Chris Porter, a nurse practi-­‐‑
tioner. Healix and the Clinic signed a five-­‐‑year contract, un-­‐‑
der which Healix would provide infusion services after the
Clinic built an in-­‐‑office pharmacy and hired staff to work
there. The Clinic was responsible for the expense of con-­‐‑
structing the pharmacy. Healix required Keller and Porter to
execute personal guarantees, and it took a security interest in
some of the Clinic’s accounts receivable.
The arrangement did not last long. Four months after
signing the contract, the Clinic sent a letter informing Healix
that it would not fulfill its responsibilities. The contract does
not allow termination at will; HHI does not contest Healix’s
assertion that the Clinic was in breach—though Healix did
not sue the Clinic or seek a remedy outside of the judicial
system. One month after sending this letter, the Clinic en-­‐‑
tered into a contract for infusion services with HHI. The two
businesses first met at the Infectious Disease Society Associa-­‐‑
tion’s annual conference in October 2007. Porter spoke with
Landon Lackey, one of HHI’s employees, at its booth and
later at a cocktail party HHI had organized.
When Healix found out that the Clinic had signed with a
rival, it sued HHI for copyright and trademark infringement

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3 No. 12-­‐‑3768
and for tortious interference with a contract. The intellectual-­‐‑
property claims were dismissed. The tortious-­‐‑interference
claim continued. (The district judge could not send it to state
court under 28 U.S.C. §1367(c), because the parties meet the
requirements of the diversity jurisdiction.) The parties agree
that the tort claim is governed by Texas law. The court held
a bench trial and ruled against Healix.
Healix maintained at trial that, during the October 2007
conference, Lackey either learned that Healix had a contract
with the Clinic or learned facts that would have led a rea-­‐‑
sonable person in his position to conclude that a contract ex-­‐‑
isted. Despite that knowledge, Healix contended, Lackey
and HHI sought the Clinic’s business, offering a contract
that did not require the Clinic to build an in-­‐‑office pharma-­‐‑
cy, hire additional employees, or provide personal guaran-­‐‑
tees. The Clinic took HHI’s offer, which on balance was su-­‐‑
perior to Healix’s, and broke its promise to Healix.
Under Texas law, to demonstrate tortious interference
with a contract Healix must show “(1) that a contract subject
to interference exists; (2) that the alleged act of interference
was willful and intentional; (3) that the willful and inten-­‐‑
tional act caused damage; and (4) that actual damage or loss
occurred.” ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426,
430 (Tex. 1997). If the facts are as Healix narrates them, it
might have a good claim for tortious interference with a con-­‐‑
tract. Its problem, however, is that the district judge did not
find the facts to be so.
Healix presented three main kinds of evidence: first, the
testimony of Porter, who said that he told Lackey about the
contract at the October 2007 conference; second, the UCC
statement that Healix filed with Washington’s Secretary of

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No. 12-­‐‑3768 4
State; third, Lackey’s testimony. Lackey was called as an ad-­‐‑
verse witness and professed not to remember what he talked
about with Porter at the conference. HHI’s main evidence
was the testimony of Healix’s other owner, David Keller,
who stated that an in-­‐‑office pharmacy would have been too
costly. The district court found that Healix “would not have
performed under the contract under any circumstances …
[because] Keller was profoundly uncomfortable with the fi-­‐‑
nancial obligations imposed by the contract and he would
not do what he needed to do to make the deal with Healix
work”. 2012 U.S. Dist. LEXIS 169376 at *4–5 (N.D. Ill. Nov. 29,
2012). HHI also called Neil Stanton, who attended the Octo-­‐‑
ber 2007 conference with Lackey and expressed confidence
that he would remember whether Porter told him about hav-­‐‑
ing a contract with Healix; he had no recollection of it.
The district judge found Porter’s testimony not credible:
“Porter’s demeanor was unusual and his mannerisms dis-­‐‑
closed many of the classic indicia of untruthfulness. I con-­‐‑
clude from my observation of Porter’s demeanor that he had
significant blanks in his recollection, which he tried to fill in
by telling a story of what might have happened.” Id. at *4. As
we have mentioned, the judge did believe Keller. In addition
to its credibility findings, the court found that the financing
statement did not alert HHI to the contract’s existence.
Healix contends that the judge made three errors. With-­‐‑
out them, it argues, the district court should have found that
HHI tortiously interfered with its contract. First, Healix ar-­‐‑
gues, the court misapplied Texas law by not fully appreciat-­‐‑
ing that it does not require the defendant to have had direct
knowledge of the contract. Rather, the knowledge require-­‐‑
ment is satisfied if the interfering party had knowledge of

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5 No. 12-­‐‑3768
“facts from which a reasonable person would conclude the
existence of a contract.” Kelly v. Galveston County, 520 S.W.2d
507, 513 (Tex. Civ. App. 1975). Second, Healix argues that the
judge overlooked evidence showing that a reasonable per-­‐‑
son in Lackey’s position would have known that the Clinic
had a contract with Healix. Finally, Healix contends that the
court erred in finding that Healix could not show causation,
and it argues that it demonstrated that the Clinic broke its
contract because HHI offered better terms.
Texas does not require a demonstration that the interfer-­‐‑
ing party knew that a contract was in place; it is enough if a
reasonable person in the party’s position would have known
about the contract. See Kelly, 520 S.W.2d at 513; Armendariz
v. Mora, 553 S.W.2d 400, 406 (Tex. Civ. App. 1977). But
Healix’s argument that the district court erred in its applica-­‐‑
tion of the standard fails for several reasons. The first is that
the argument was not properly before the district judge.
Healix asked the judge to rule in its favor based either on
HHI’s actual knowledge of the contract or on the theory that
HHI should have known about it because Healix filed a
UCC financing statement. Healix did not argue to the district
court that HHI should have known about the contract as a
result of its knowledge of any facts or circumstances other
than the financing statement. (One sentence in the closing
argument implying that Lackey ignored information that
might have caused him to discover the plans for construc-­‐‑
tion of an in-­‐‑office pharmacy is not sufficient.) An argument
or legal theory not raised before the district court is forfeited.
See In re Willett, 544 F.3d 787, 793 n.5 (7th Cir. 2008); Domka
v. Portage County, Wis., 523 F.3d 776, 783 n.11 (7th Cir. 2008);
Horn v. Transcon Lines, Inc., 7 F.3d 1305, 1308 (7th Cir. 1993).

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No. 12-­‐‑3768 6
And if Healix’s argument had been raised before the dis-­‐‑
trict court, the result would have been the same. Healix’s on-­‐‑
ly evidence that HHI should have known about the contract
was the financing statement: a record in a state office that
contained the names and addresses of the Clinic and Healix,
plus an account of the security interest as “office infusion
center accounts receivables excluding Medicare and Medi-­‐‑
caid accounts receivables.” Healix argues that Lackey’s
knowledge of the infusion business should have led him to
infer from this financing statement that the Clinic was build-­‐‑
ing an in-­‐‑office pharmacy, which in turn should have led
him to infer that it had a contract with another infusion pro-­‐‑
vider. See Top Value Enterprises, Inc. v. Carlson Marketing
Group, Inc., 703 S.W.2d 806, 810 (Tex. App. 1986); Amigo
Broadcasting, LP v. Spanish Broadcasting System, Inc., 521 F.3d
472, 490 (5th Cir. 2008). The problem is that the best evidence
that Healix can produce to show that Lackey knew about the
plan to construct a pharmacy is his failure to recall in perfect
detail on the witness stand the substance of his pretrial dec-­‐‑
laration (which was silent regarding his knowledge of the
plan). A few moments later, Lackey explicitly denied
knowledge of the plan. The judge believed Lackey and so
was right to reject this theory.
It is true that, when discussing the financing statement,
the judge used the term “actual knowledge” rather than
what a reasonable person in HHI’s position should have
known. That is unimportant because, if this was an error, it
was harmless. Healix cites a Texas case that admonishes that
“[o]nce put on notice [of a security agreement via a UCC fi-­‐‑
nancing statement], a third party must make inquiry to dis-­‐‑
cover the complete nature of the agreement between the
debtor and creditor.” Crow-­‐‑Southland Joint Venture No. 1 v.

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7 No. 12-­‐‑3768
North Fort Worth Bank, 838 S.W.2d 720, 724 (Tex. App. 1992).
Healix takes this to mean that anyone who learns of a financ-­‐‑
ing statement must stop and inquire about the nature of the
underlying agreement. Either this, or any time two people
form a contract, each must search to determine whether the
other is encumbered by a competitor’s security interest. Nei-­‐‑
ther is accurate.
Filing a financing statement is one method of perfecting a
security interest, which ensures a position superior to new-­‐‑
comers who wish to use the same asset to secure their own
debt. See UCC §9–308, Official Comment 2. A filing state-­‐‑
ment tells the world who holds what interests in a given as-­‐‑
set. Possession is another method, but filing statements al-­‐‑
low more flexibility in the asset’s use. See Douglas G. Baird
& Thomas H. Jackson, Possession and Ownership: An Examina-­‐‑
tion of the Scope of Article 9, 35 Stan. L. Rev. 175, 176 (1983).
Wise creditors looking to use a particular asset as security
for a debt look for a financing statement covering the asset,
and, if one is in place, inquire into the nature of the agree-­‐‑
ment. Otherwise they risk ending up with a junior security
interest. That’s what happened in Crow-­‐‑Southland, where a
secured creditor foreclosed on a debtor’s asset but had to
turn the proceeds over to a senior creditor it had not discov-­‐‑
ered because its inquiry was not complete. See 838 S.W.2d at
724–25. There are no security interests at stake in this case,
no dispute about priority in assets, and no claim that HHI
ever saw the financing statement, so the fact that Healix filed
it is irrelevant. Article 9 of the UCC does not cover disputes
about tortious interference with contracts, and HHI has not
cited any decision in Texas (or another state, for that matter)
extending the role of financing statements beyond resolving
claims of priority.

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No. 12-­‐‑3768 8
One final point about Healix’s contention that the district
judge erred in finding that HHI did not have actual
knowledge. When arguing that the court used the improper
standard, Healix refers exclusively to the court’s oral state-­‐‑
ments immediately after the end of the trial. By contrast, we
have been discussing the district judge’s written opinion.
Healix contends in a footnote of its brief that the oral re-­‐‑
marks are what matter because the district court’s opinion
does not comply with Fed. R. Civ. P. 52. Rule 52(a)(1) obliges
the court to “find the facts specially and state its conclusions
of law separately.” The court did so. The judge believed Kel-­‐‑
ler, disbelieved Porter, and found the UCC financing state-­‐‑
ment to be unimportant. These findings led it to conclude
that Healix had failed to meet its burden, so no more find-­‐‑
ings were required.
The Supreme Court has held that, to satisfy Rule 52, find-­‐‑
ings must be “sufficient to indicate the factual basis for the
ultimate conclusion.” Kelley v. Everglades Drainage District,
319 U.S. 415, 422 (1943) (interpreting both Rule 52(a) and a
provision of the Bankruptcy Act containing similar lan-­‐‑
guage); see also Bartsh v. Northwest Airlines, Inc., 831 F.2d
1297, 1304 (7th Cir. 1987) (stating that the rule’s dual pur-­‐‑
poses are “(1) to provide appellate courts with a clear under-­‐‑
standing of the basis of the trial court’s decision, and (2) to
aid the trial court in considering and adjudicating the facts”).
The district court’s opinion was not as elaborate as it could
have been, but it satisfied the requirements of Rule 52(a)(1).
Because the district judge’s written opinion is adequate,
his oral remarks are unimportant. The judge was not an-­‐‑
nouncing a criminal sentence. If he had been, the writing
would have been no more than evidence of the sentence an-­‐‑

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9 No. 12-­‐‑3768
nounced orally, and both pronouncements would be rele-­‐‑
vant. But whatever justifications exist for the criminal sen-­‐‑
tencing rule do not extend to judgments in civil suits. See
United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012), cit-­‐‑
ing United States v. Weathers, 631 F.3d 560, 561–62 (D.C. Cir.
2011). In civil suits, the opinion and judgment are conclu-­‐‑
sive. As this court has recently noted, it would not like to be
bound by its statements at oral argument rather than written
opinions. See In re Canopy Financial, 708 F.3d 934 (7th Cir.
2013); see also Okaw Drainage District of Champaign and Doug-­‐‑
las County v. National Distillers and Chemical Corp., 882 F.2d
1241, 1244 (7th Cir. 1989) (noting the danger that an oral
opinion may fail to identify and resolve all of a suit’s issues).
The district court deserves the same treatment.
In any event, the case can be disposed of on another
ground. Keller held a majority membership interest in the
Clinic. The district judge assumed that this entitled him to
decisionmaking power, and Healix does not dispute this
finding. Keller testified that the Clinic would have breached
the Healix contract regardless of HHI’s involvement, be-­‐‑
cause securing financing for the in-­‐‑office pharmacy would
have been impossible. The district judge found Keller’s
statements to be credible. Healix does not challenge this
finding, and it is enough to dispose of Healix’s claim.
One element that Healix must prove is “that the willful
and intentional act proximately caused damage”. ACS Inves-­‐‑
tors, Inc., 943 S.W.2d at 430. Healix cites a number of cases in
which courts have considered as evidence the fact that the
interfering party offered better terms. See, e.g., Davis v.
HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App. 1992); John Paul
Mitchell Systems, Inc. v. Randalls Food Markets, Inc., 17 S.W.3d

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No. 12-­‐‑3768 10
721, 731 (Tex. App. 2000). Whether an interfering party of-­‐‑
fered better terms can be evidence of the “active part” the
party took in bringing about the breach, which Texas courts
have found to be an element of cause. See Davis, 839 S.W.2d
at 139. This court need not grapple with such questions.
Healix’s uncontroverted evidence demonstrates that the
Clinic would have walked away from Healix no matter what
HHI did. The causation inquiry ends there. See Top Value,
703 S.W.2d at 812. Healix needed to demonstrate that HHI
was at fault in the breakup of the arrangement, and it cannot
do so if the contract was doomed from the start.
AFFIRMED

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