Filed: Jul. 30, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-60931 Document: 00512325739 Page: 1 Date Filed: 07/30/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 30, 2013 No. 12-60931 Lyle W. Cayce Summary Calendar Clerk GEORGE W. HIGHTOWER; HIGHTOWER FOODS, L.L.C., Plaintiffs–Appellants, v. ARAMARK EDUCATIONAL SERVICES, L.L.C., Defendant–Appellee. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:10-CV-166 Before HIGGINBOTHAM,
Summary: Case: 12-60931 Document: 00512325739 Page: 1 Date Filed: 07/30/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 30, 2013 No. 12-60931 Lyle W. Cayce Summary Calendar Clerk GEORGE W. HIGHTOWER; HIGHTOWER FOODS, L.L.C., Plaintiffs–Appellants, v. ARAMARK EDUCATIONAL SERVICES, L.L.C., Defendant–Appellee. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:10-CV-166 Before HIGGINBOTHAM, ..
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Case: 12-60931 Document: 00512325739 Page: 1 Date Filed: 07/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2013
No. 12-60931 Lyle W. Cayce
Summary Calendar Clerk
GEORGE W. HIGHTOWER; HIGHTOWER FOODS, L.L.C.,
Plaintiffs–Appellants,
v.
ARAMARK EDUCATIONAL SERVICES, L.L.C.,
Defendant–Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:10-CV-166
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiffs–Appellants George Hightower and Hightower Foods, LLC
(collectively, Hightower) appeal the district court’s grant of summary judgment
in favor of Defendant–Appellee Aramark Educational Services, LLC (Aramark)
on Hightower’s claim that Aramark tortiously interfered with Hightower’s lease
with Mississippi State University (MSU). We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-60931
Hightower formerly operated a Subway restaurant in MSU’s student
union. While Hightower’s lease remained in effect, MSU issued a public
“Invitation to Negotiate” (ITN), requesting proposals for the operation of MSU’s
dining and catering operation and stating MSU’s intent “to grant the successful
contractor exclusive rights to the operation of campus dining services.” Several
companies responded to the ITN. Aramark’s proposal was selected, and
Aramark and MSU executed an agreement in which MSU promised to engage
Aramark “on an exclusive basis” to provide MSU with meals in its campus
facilities. Hightower subsequently sued Aramark, alleging that it had tortiously
interfered with Hightower’s contract with MSU. The district court granted
summary judgment in favor of Aramark, concluding that Hightower failed to
establish that Aramark had committed a wrongful act or that Hightower’s
contract would have been performed but-for Aramark’s alleged interference.
This court reviews a grant of summary judgment de novo, applying the
same standard as the district court.1 Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”2
Hightower’s primary argument is that the district court incorrectly applied
Mississippi law. It claims that “one party’s intentionally entering a contract that
precludes another party’s performing an existing contract” standing alone
constitutes the tort of intentional interference with a contract under Mississippi
law. This argument fails for two reasons. First, as the district court noted,
Hightower belatedly raised this argument in its motion for reconsideration. This
1
E.g., Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992).
2
FED. R. CIV. P. 56(a).
2
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No. 12-60931
court generally considers issues raised for the first time in a motion for
reconsideration waived.3
Second, even if we were to reach this argument, Hightower misstates
Mississippi law. Hightower places great weight on the Mississippi Supreme
Court’s decision in Alfonso v. Gulf Publishing Company.4 Alfonso, however,
reaffirmed that the elements of an intentional-interference-with-contract claim
are
(1) that the acts were intentional and willful; (2) that they were
calculated to cause damage to the plaintiff in his/her lawful
business; (3) that they were done with the unlawful purpose of
causing damage and loss, without right or justifiable cause on the
part of the defendant (which acts constitute malice); and (4) that
actual damage or loss resulted, and (5) the defendant’s acts were the
proximate cause of the loss or damage suffered by the plaintiff.5
The court emphasized that the plaintiff must show that the defendant “did a
wrongful act without legal or social justification” as opposed to an act “in the
exercise of a legitimate interest or right, which constitutes privileged
interference.”6 And in the case before it, the court identified evidence indicating
that the defendant acted with such a wrongful purpose—a letter from the
defendant to the other party stating that “we are certain your current publisher
was not in a profitable situation with this product” and offering to publish the
other party’s newspaper free of charge.7 Given this evidence, the court reversed
3
E.g., Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436, 442 (5th Cir. 2007).
4
87 So. 3d 1055 (Miss. 2012).
5
Alfonso, 87 So. 3d at 1060 (emphasis added) (quoting Scruggs, Millette, Bozeman &
Dent, P.A. v. Merkl & Cockle, P.A., 910 So. 2d 1093, 1098-99 (Miss. 2005)) (internal quotation
marks omitted).
6
Id. (quoting Scruggs, 910 So. 2d at 1099) (internal quotation marks omitted).
7
Id. at 1062.
3
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the trial court’s grant of summary judgment in favor of the defendant.8 Alfonso
therefore does not stand for the proposition that nothing more than the
defendant’s entry into a contract with knowledge that the other party is bound
by an existing contract constitutes intentional interference with a contract.
We also agree with the district court that, applying the correct law,
Aramark was entitled to summary judgment. As the district court observed, the
allegedly wrongful acts identified by Hightower were perpetrated by MSU, not
Aramark. The summary judgment evidence was that Aramark learned of
Hightower’s lease only after its proposal in response to MSU’s ITN had been
selected by MSU and more than a year after MSU notified Hightower that it
wished to terminate Hightower’s lease. Hightower identifies no evidence to
suggest that Aramark took any action, much less an improper one, to induce
MSU to breach its lease with Hightower. The fact that Aramark later learned
that Hightower had a lease prior to the execution of its contract with MSU does
not, standing alone, prove that Aramark tortiously interfered with Hightower’s
lease with MSU.9
Finally, to the extent Hightower contends that the summary-judgment
device violates the Seventh Amendment, this argument is meritless.10
* * *
AFFIRMED.
8
Id.
9
See Scruggs, 910 So. 2d at 1100 (“[E]ven if Merkel had knowledge of an agreement
between Scruggs and Wilson and Merkel’s act of paying Wilson constituted interference,
Merkel was still required to split the fees from the Scott case under the Merkel-Wilson
agreement and had a legitimate right to do so.”).
10
E.g., Oglesby v. Terminal Transp. Co., 543 F.2d 1111, 1112-13 (5th Cir. 1976) (per
curiam).
4
