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Cram Roofing Co.12/17/2003
ON, APPELLANT'S MOTION FOR REHEARING
Dissenting opinion issued August 29, 2003 by: Sarah B. Duncan, Justice, joined by Paul W. Green, Justice and Karen Angelini, Justice
APPELLANT'S MOTION FOR REHEARING DENIED; AFFIRMED
Cram Roofing Company appeals the trial court's judgment against it in Dennis Parker's libel suit. The case is now before the court on Cram Roofing's motion for rehearing en banc. The motion for rehearing en banc is denied; however, we withdraw our majority en banc opinion and vacate our judgment of August 29, 2003, and substitute the following in their stead. The dissenting opinion issued on August 29, 2003 remains unchanged. We affirm the trial court's judgment.
Factual and Procedural Background
In November 1998, Cram Roofing hired Parker as the general manager of its branch office in the Rio Grande Valley. Cram Roofing also hired Joe Zamora as the production manager. In early July 1999, Zamora abruptly quit. Given the circumstances of Zamora's resignation and the subsequent disappearance of the work crew, as well as his inability to immediately locate or contact Parker, Cram Roofing's president, Gary Cram, assumed that Parker had also resigned and closed the Valley office. According to Parker, he had not resigned; rather, he was terminated by Cram when Cram closed the Valley office.
Shortly after Cram Roofing's Valley office was closed, Parker and Zamora started a new business in direct competition with Cram Roofing. In response, on August 25, 1999, Cram Roofing's attorney wrote twelve identical letters to various suppliers and roofing companies that Cram Roofing believed would become Parker's prospective customers. The August 25, 1999 letter stated: I have been retained by Cram Roofing Company, Inc. ("Cram Roofing") to represent its interest in pursuing a legal action against Joe Zamora ("Zamora") and Dennis Parker ("Parker"), and potentially against your company.
On or about July 5, 1999, Zamora and Parker voluntarily terminated their employment with Cram Roofing. As a condition of their employment with Cram Roofing, both Zamora and Parker executed a two-year, enforceable Non-competition and Confidentiality Agreement ("the Agreement"). The Agreement provides, among other things, that neither party shall, in any capacity, compete within a 100 mile radius of Cram Roofing's central office in San Antonio, Texas, or its branch office in Pharr, Texas. The Agreement further states that neither party shall contact or solicit for any competitive purpose any person or entity who is then a customer, client, vendor or supplier of Cram Roofing, or who was a customer, client or supplier of Cram Roofing within the preceding two years.
Cram Roofing intends to vigorously pursue a legal action against all entities that have conspired or in any way acted in concert to induce breach of the Agreement or that have tortiously interfered with Cram Roofing's contracts. Said potential causes of action include, but may not be limited to civil conspiracy, misappropriation of trade secrets, tortious interference, intentional infliction of emotional distress, and slander. Cram Roofing has reason to believe that your company may be liable for damages sustained by Cram Roofing as a result of your company's affiliation with Zamora and/or Parker. Cram Roofing will seek to recover all profits obtained by your company as a result of Zamora and/or Parker's illegal activities. Further, Cram Roofing will seek to recover all damages it has incurred in the loss of contracts, which loss has been the direct result of Zamora and Parker's breach of the Agreement, tortious interference, and civil conspiracy.
Thi
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