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                          NUMBER 13-22-00489-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


ELDA LOPEZ CANTU,                                                           Appellant,

                                               v.

ELOY BERNAL AND
PAULINO BERNAL JR.,                                                         Appellees.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Benavides and Tijerina
              Memorandum Opinion by Justice Tijerina

      Appellant Elda Lopez Cantu appeals the trial court’s summary judgment in favor

of appellees Eloy Bernal and Paulino Bernal Jr. (the Bernals). By one issue, Cantu

contends the trial court erred by granting the Bernals’ joint motion for summary judgment.

We affirm.
                                           I.      BACKGROUND

          Cantu sued the Bernals’ father Paulino Bernal alleging, in pertinent part, that

Paulino breached a contract to marry her and breached a contract to convey title to real

property and a radio station to her.1 Additionally, Cantu sued the Bernals for tortious

interference with prospective contractual relations. The Bernals filed a motion for

summary judgment asserting that “there is no genuine issue as to any material fact

necessary to establish that [Cantu] has [a] viable cause[] of action against” them. The trial

court granted the motion and severed this cause. This appeal followed.

    II.         MOTION IS IN SUBSTANCE A MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

          As a preliminary matter, we must determine whether the Bernals’ motion for

traditional summary judgment is in substance a no-evidence motion so that we may

review it under the proper standard. See Tex. Integrated Conveyor Sys., Inc. v. Innovative

Conveyor Concepts, Inc.,
300 S.W.3d 348, 375
 (Tex. App.—Dallas 2009, pet. denied).

We categorize the motion not by strictly reviewing its form or title, but instead, we consider

the substance. See
id.
 A traditional summary judgment is proper “when the movant

establishes that there is no genuine issue of material fact[,] and he is entitled to judgment

as a matter of law.”
Id.
 On the other hand, “[a] no-evidence summary judgment is proper

if the nonmovant fails to bring forward more than a scintilla of probative evidence that

raises a genuine issue of material fact as to an essential element of the plaintiff’s causes

of action for which the defendant contends no evidence exists.”
Id.

          The Bernals’ motion entitled, “Joint Motion for Summary Judgment,” set out the


          1   Cantu’s cause against Paulino Bernal is not before us.

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standard for obtaining a traditional summary judgment, and they attached evidence to

their motion. However, the Bernals argued in their motion that the evidence for each

element of tortious interference with a prospective contract, was “missing,” “no such

evidence occurred,” and there was “no evidence.” See TEX. R. CIV. P. 166a(i) (“[A] party

without presenting summary judgment evidence may move for summary judgment on the

ground that there is no evidence of one or more essential elements of a claim . . . on

which an adverse party would have the burden of proof at trial.”). Thus, we conclude that

the Bernals’ motion was a joint motion for no-evidence and traditional summary judgment.

See
id.

                    III.   STANDARD OF REVIEW AND APPLICABLE LAW

       Once a no evidence motion for summary judgment has been filed, the nonmoving

party has the burden to present evidence raising an issue of material fact as to the

challenged elements. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572
, 581–82 (Tex. 2006).

The trial court may not grant a no-evidence summary judgment “if the respondent brings

forth more than a scintilla of probative evidence to raise a genuine issue of material fact.”

See King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751
 (Tex. 2003). More than a scintilla

of evidence exists if the evidence “rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” Merrell Dow Pharms. Inc. v. Havner,
953 S.W.2d 706, 711
 (Tex. 1997). There is less than a scintilla of evidence if the evidence is

“so weak as to do no more than create a mere surmise or suspicion” of a fact. Jelinek v.

Casas,
328 S.W.3d 526, 532
 (Tex. 2010). We review a trial court’s summary judgment

de novo. See Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661
 (Tex. 2005).


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      To prevail on a claim for tortious interference with a prospective contract, the

claimant must show the following:

      (1) a reasonable probability that there would have been a contractual
      relationship; (2) an “independently tortious or unlawful” act by the interfering
      party that prevented the relationship from occurring; (3) the interfering party
      did such act with a conscious desire to prevent the relationship from
      occurring or knew that the interference was certain or substantially certain
      to occur as a result of his conduct; and (4) the claimant suffered actual harm
      or damage proximately caused by the interference.

Enter. Crude GP LLC v. Sealy Partners, LLC,
614 S.W.3d 283
, 307 (Tex. App.—Houston

[14th Dist.] 2020, no pet.) (citing Wal-Mart Stores, Inc. v. Sturges,
52 S.W.3d 711, 726

(Tex. 2001)). Independently tortious means, “conduct that would violate some other

recognized tort duty. . . .” Wal-Mart Stores, Inc.,
52 S.W.3d at 713
. For example

      a defendant who threatened a customer with bodily harm if he did business
      with the plaintiff would be liable for interference because his conduct toward
      the customer—assault—was independently tortious, while a defendant who
      competed legally for the customer’s business would not be liable for
      interference. Thus defined, an action for interference with a prospective
      contractual or business relation provides a remedy for injurious conduct that
      other tort actions might not reach (in the example above, the plaintiff could
      not sue for assault), but only for conduct that is already recognized to be
      wrongful under the common law or by statute.

Wal-Mart Stores, Inc.,
52 S.W.3d at 713
.

                                    IV.    DISCUSSION

      In their motion for summary judgment, the Bernals challenged each element of

Cantu’s claim for tortious interference with a prospective contract. As relevant to our

analysis, the Bernals specifically stated in their motion that there is “no independent

tortious or unlawful act performed by [the Bernals] with a conscious desire to prevent the

relationship from occurring or with knowledge that the interference was certain or


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substantially likely to occur as a result of its conduct.” The Bernals further argued that

there is no evidence that they “intentionally or maliciously intervened with potential

business relations between [Cantu and Paulino].” Cantu responded that the Bernals “took

immediate action to make sure that [Paulino] ended the relationship and terminate[d] any

agreements he had with [her]” when they discovered the relationship.2

       Here, Cantu points to no evidence on appeal and pointed to no evidence in the

trial court that supports a finding that the Bernals’ conduct was independently tortious;

that is, Cantu did not provide any evidence that the Bernals’ actions would be actionable

under a recognized tort. See
id.
 She did not allege or produce evidence that the Bernals

interfered with the prospective contracts by making a fraudulent statement about her to a

third person, (deception), threatening Paulino with physical harm if he did business with

her, (committing assault), or engaging in any other illegal activity. See
id.
 In fact, she did

not allege in the trial court and does not allege on appeal that the Bernals’ conduct in

allegedly discouraging Paulino from performing the alleged contracts would be actionable

under a recognized tort. See id.; see also Snowhite Textile & Furnishings, Inc. v. Innvision

Hosp., Inc., No. 05-18-01447-CV,
2020 WL 7332677
, at *8 (Tex. App.—Dallas Dec. 14,

2020, no pet.) (mem. op.) (finding an independently tortious act).

       Instead, the evidence merely shows that the Bernals allegedly persuaded Paulino

not to deal with Cantu, which standing alone is not an unlawful act. See Wal-Mart Stores,

Inc.,
52 S.W.3d at 726
. Although it may have been “sharp” or “unfair” for the Bernals to



       2 Cantu did not attach any evidence to support this assertion. Moreover, such conduct if true would

not be independently tortious. See Wal-Mart Stores, Inc.,
52 S.W.3d at 726
.

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have done so, such conduct is not actionable. See
id.
 (“Conduct that is merely ‘sharp’ or

unfair is not actionable and cannot be the basis for an action for tortious interference with

prospective relations . . . .”). Therefore, we conclude that Cantu failed to raise more than

a scintilla of probative evidence to raise a genuine issue of material fact supporting a

finding that the Bernals committed an “independently tortious or unlawful” act that

prevented the relationship from occurring. See King Ranch, Inc.,
118 S.W.3d at 751
; see

also Wal-Mart Stores, Inc.,
52 S.W.3d at 726
.

       Moreover, even under a traditional summary judgment standard, we come to the

same conclusion. The Bernals attached affidavits to their motion for summary judgment

stating that prior to Paulino ending his relationship with Cantu, neither of the Bernals knew

that Paulino was in a relationship with Cantu or that Paulino had made promises to Cantu

regarding marriage, conveyance of real property, or conveyance of a radio station.

Furthermore, each of the Bernals denied pressuring, discouraging, threatening, or

interfering with Paulino’s decision regarding Cantu. Thus, the Bernals conclusively

negated at least one element of Cantu’s cause of action—that they engaged in unlawful

conduct that prevented the relationship from occurring—because the only evidence

before the trial court is that Paulino ended his relationship with Cantu before the Bernals

became aware of it and the contracts. See Cathey v. Booth,
900 S.W.2d 339, 341
 (Tex.

1995) (per curiam) (setting out that a defendant prevails on a motion for traditional

summary judgment if it disproves at least one element of the cause of action). They also

negated that they acted with a conscious desire to end the relationship because they

provided evidence that they had no knowledge of the relationship or contracts until after


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the couple’s break-up. See Cathey,
900 S.W.2d at 341
.

       Once the Bernals produced sufficient evidence to establish the right to summary

judgment, the burden shifted to Cantu to present evidence raising a fact issue proving

that the Bernals’ unlawful conduct prevented the relationship from occurring. See Centeq

Realty, Inc. v. Siegler,
899 S.W.2d 195, 197
 (Tex. 1995) (explaining the burden-shifting

analysis of a motion for traditional summary judgment); see also Wal-Mart Stores, Inc.,
52 S.W.3d at 726
. Cantu attempted to do so by stating in her affidavit attached to her

response that the Bernals “took immediate action to make sure that [Paulino] ended the

relationship and terminate[d] any agreements he had with [her]” when they discovered

the relationship. However, as noted above Cantu did not produce any evidence that the

Bernals prevented the relationship by performing an unlawful act or an independently

tortious act. See Wal-Mart,
52 S.W.3d at 726
. Therefore, we cannot conclude that Cantu

raised a fact issue on this element. See
id.
 We overrule Cantu’s sole issue.3

                                        V.      CONCLUSION

       We affirm the trial court’s judgment.


                                                                                JAIME TIJERINA
                                                                                Justice

Delivered and filed on the
21st day of December, 2023.




       3   Having determined that the Bernals negated one element of tortious interference with a
prospective contract, we need not address Cantu’s other arguments that she provided evidence raising a
fact issue regarding the other elements of her claim. See Provencio v. Paradigm Media, Inc.,
44 S.W.3d 677, 680
 (Tex. App.—El Paso 2001, no pet.) (“A defendant who conclusively negates at least one essential
element of a plaintiff's cause of action is entitled to summary judgment on that cause of action.”).

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