Doggett Company, LLC v. Thermo King Corporation

Filing 99

SUMMARY JUDGMENT OPINION AND ORDER granting #50 Motion for Summary Judgment, denying #66 Motion for Summary Judgment and denying as moot #67 MOTION for Continuance of Summary Judgment Hearing (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
D OGGETT C OMPANY, LLC,
Plaintiff,
vs.
T HERMO K ING C ORPORATION,
Defendant.

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August 01, 2017
David J. Bradley, Clerk

C IVIL A CTION H-16-2673

SUMMARY JUDGMENT OPINION AND ORDER
This dispute is before the court on cross motions for summary judgment (Dkt. 50,
66).1 Having considered the parties’ submissions, argument of counsel at a hearing on June
29, 2017 and the law, defendant’s motion is granted and plaintiff’s motion is denied.2
Introduction
Defendant Thermo King manufactures transport temperature control products and
sells them through a network of dealerships. Thermo King has the right under its dealership
contracts to approve or deny any proposed sale of the dealerships. In 2016, Thermo King
refused to approve a proposed acquisition by plaintiff Doggett Company, LLC of two
Thermo King dealerships operated by Kirby Corporation in Texas.3 According to Thermo

1

Doggett’s motion to continue consideration of the pending motion until the conclusion of
discovery (Dkt. 67) is denied as moot. The discovery period ended June 16, 2017, and the
parties have had sufficient time to supplement the record with additional evidence. See Dkt.
76, 87, 96.

2

The parties have consented to the jurisdiction of this Magistrate Judge for all purposes,
including final judgment. Dkt. 29.

3

Kirby is not a party to this litigation.

King, Doggett would not have been a suitable dealer due to its existing business relationship
with a Freightliner truck dealership.4
Doggett claims that Thermo King’s refusal to approve the sale violates Texas law,
primarily the Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and
Dealers Act (the “Dealership Act”), which limits a supplier’s discretion to veto such a sale.
See T EX. B US. & C OMM. C ODE A NN. § 57.102(d). Doggett also brings related claims for
declaratory judgment, tortious interference, and injunctive relief, all of which hinge on the
alleged Dealership Act violation, and a claim for state law antitrust violations.
Summary Judgment Standards
Summary judgment is appropriate if no genuine issues of material fact exist, and the
moving party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c). The party
moving for summary judgment has the initial burden to prove there are no genuine issues of
material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.
2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury
to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). “An
issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish
Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002).
A summary judgment movant who bears the burden of proof on a claim must establish
each element of the claim as a matter of law. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
(5th Cir. 1986). If the movant meets this burden, “the nonmovant must go beyond the
4

Thermo King refers to this as its “original equipment manufacturer” or OEM policy.
2

pleadings and designate specific facts showing that there is a genuine issue for trial.”
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (quoting Tubacex,
Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995)).
If the evidence presented to rebut the summary judgment is not significantly probative,
summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986). In determining whether a genuine issue of material fact exists, the court views the
evidence and draws inferences in the light most favorable to the nonmoving party. Id. at 255.
Factual Background 5
In early 2016, Doggett approached Kirby about purchasing its two Texas Thermo
King dealerships (the “Kirby Dealerships”).6 On April 13, 2016, Kirby Corporation, the
parent company that owns the Kirby Dealerships, signed a non-binding letter of intent
providing for exclusive negotiations with Doggett.7 The letter of intent recognized that any
transaction would have to be memorialized by a definitive agreement and then approved by
Thermo King. Shortly after signing the letter of intent, Doggett sent Kirby a draft Asset
Purchase Agreement, but never received written comments back from Kirby and an Asset
Purchase Agreement was never signed.8

5

The following facts are undisputed, unless otherwise indicated.

6

D.Ex. A at 67-68, 73-74.

7

D.Ex. G.

8

D.Ex. A at 132-133, 135.
3

On May 11, 2016, Jason Robison, the Kirby Vice President in charge of dealership
operations, sent an email to Dane Tiaval, a Vice President of Thermo King, advising that
Kirby had been approached by a “potential buyer” and asking to set up a meeting to discuss
“the potential impact on the business.”9 Shortly thereafter, Robison informed Tiaval in a
phone call that there were concerns regarding Doggett’s affiliation with Freightliner.10
Robison was aware that Thermo King’s dealer agreements prohibit a dealer from having any
affiliation with “(a) any trucking business; (b) any refrigerated truck or trailer body
manufacturer; or (c) any refrigerated truck or trailer leasing company.” 11 Tiaval was new to
Thermo King at the time and needed to speak with his boss, Ray Pittard, Thermo King
President for North America and Europe, to learn more about the OEM policy.12
Robison followed up with a May 18, 2016 email to Tiaval saying “Have you been able
to connect with Ray on our Doggett deal?”13 Having discussed the matter with Pittard, Tiaval
told Robison on May 19 approval was not likely, but Pittard “did not draw an absolute line
in the sand and say no.”14 Robison pressed the matter on May 23 because he felt “the sooner

9

D.Ex. C-7 at 4. Thermo King understood “impact on the business” as a reference to its OEM
policy. D.Ex. B at 104, 338.

10

Dkt. 87-1 at 4, 31-32.

11

D.Exs. C-1 and C-2 at 8.

12

Dkt. 87-1 at 31-32.

13

D.Ex. C-7 at 4.

14

D.Ex. C-7 at 3.
4

we address any concerns TK Corp has, the better for all involved.”15 Thermo King confirmed
to Kirby on or about May 31, 2016, that Doggett could not qualify as a Thermo King dealer
because of its existing Freightliner dealership.16
After Thermo King and Kirby informed Doggett of Thermo King’s position, Doggett
refused to accept it. Doggett sent a letter on June 9, 2016 to Ray Pittard and Dane Tiaval.17
The letter provides some self-serving general background on Leslie Doggett and his
companies, but was not supported by any documentation. The letter also, without citation to
any authority or explanation, says that refusing to approve a sale “in situations like this” is
contrary to Texas law. The letter was signed only by Leslie Doggett, but was copied to Joe
Reniers of Kirby.
Thermo King eventually agreed to a “meet and greet” with Doggett on July 28, 2016
in North Carolina.18 Doggett presented some additional information at the July 28 meeting,19
but nothing that changed Thermo King’s mind.20 On August 15, 2016, Kirby told Doggett
“we have no choice but to walk away from the sale of the business.”21 On that same day

15

D.Ex. C-7 at 2.

16

D.Ex. B at 178-80; D.Ex. C-7 at 1.

17

P.Ex. 8.

18

P.Ex. 14.

19

P.Ex. 17.

20

P.Ex. 16.

21

P.Ex. 23.
5

counsel for Doggett sent a demand letter to Thermo King citing the Dealership Act and
threatening to sue if Thermo King did not change its position.22 Thermo King did not change
its position, and this lawsuit ensued.
Analysis
A.

Dealership Act Claim
Resolution of this state-law claim requires interpretation of a statute enacted by the

Texas legislature in 2011. Due to the Act’s recent vintage, the Court has not found nor have
the parties cited any Texas appellate court decision applying its provisions. Accordingly, this
court must make an “Erie guess” and “determine as best [we] can” what the Texas Supreme
Court would decide. Harris County v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015).
The court’s analysis is guided by general principles of statutory interpretation and common
sense. See Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex. 2015) (the plain meaning of the
text is controlling unless a different meaning is supplied by the statutory definition, is
apparent from the context, or doing so would lead to an absurd or nonsensical result).
The overall tenor of the Dealership Act is unmistakable — equipment dealers are
granted certain non-negotiable statutory rights in their relationship with suppliers. Section
1 declares that state regulation of the business relationship between independent dealers and
equipment suppliers is necessary because it “vitally affect[s] the general economy of this
state, the public interest, and the public welfare.” Section 1 of Acts 2011, 82nd Leg., ch.
1039 (H.B. 3079). Various subchapters of the Act address different aspects of the supplier22

D.Ex. L.
6

dealer relationship, including sale or transfer of dealerships, termination of dealership
agreements, warranty claims, coerced orders, refusals to purchase, price discrimination,
repurchases following cancellation or non-renewal, actions and remedies. In each instance
the Act provides substantive protections to the dealer rather than the supplier, and these
protections are binding and not subject to waiver. T EX. B US. & C OMM. C ODE A NN. § 57.003.
This dealer orientation is epitomized by Subchapter I, Actions and Remedies, which
authorizes a civil action by a dealer against the supplier for damages caused by the supplier’s
violation of the Act, but not vice versa. See id. at § 57.401(a) (emphasis added). Nor is this
statutory cause of action the dealer’s exclusive remedy — the provisions of the Act “are
supplemental to any dealer agreement between the dealer and the supplier that provides the
dealer with greater protection.” Id. at § 57.402.
Doggett claims that Thermo King’s refusal to approve Doggett’s purchase of the
Kirby Dealerships violated § 57.102. In particular, Doggett claims that the basis for Thermo
King’s denial, i.e., that Doggett’s affiliation with another trucking company violated Thermo
King’s OEM policy, was not a “reasonable requirement consistently imposed by the supplier”
in similar dealership transactions. See § 57.102(d). Doggett points to two recent transactions
in which Thermo King apparently made an exception to its OEM policy.
While Thermo King denies that its OEM policy has been inconsistently applied, its
main argument is that a condition precedent to the application of § 57.102 — a written
request by the dealer — was never satisfied. The relevant portion of the Dealership Act, §
57.102(b), reads as follows:
7

If a supplier has contractual authority to approve or deny a request for the sale
or transfer of a dealer’s business or an equity ownership interest in the dealer’s
business, a dealer may request that the supplier approve or deny a request for
the sale or transfer of a dealer’s business or an equity ownership interest in the
dealer’s business to a proposed buyer or transferee. The dealer’s request must
be in writing and must include character references and reasonable financial,
personal background, and work history information with respect to the
proposed buyer or transferee.
(Emphasis added). If a dealer does make such a request, the supplier has 60 days to make a
decision, and can deny the request only pursuant to reasonable requirements for the
prospective transferee that are consistently applied. Id. at §§ 57.102(c), (d). Thermo King
contends that its dealer, Kirby, never made a qualifying request for approval of the sale, and
therefore the “consistently imposed requirements” provision of § 57.102(d) was never
triggered.
Doggett makes three arguments in response: (1) Section 57.102(b) allows Doggett,
as a dealer and prospective transferee, to make the triggering request to the supplier; (2)
Kirby satisfied the dealer request requirement by a series of May 18 emails, supplemented
by Doggett’s June 9 letter as well as Doggett’s presentation on July 28; and/or (3) Doggett
satisfied the dealer request requirement as Kirby’s agent. As explained below, none of these
arguments are persuasive.
1.

Request by Proposed Buyer

This argument founders on the plain language of the Act. Section 57.102(b) plainly
negates the possibility that the prospective transferee can make the triggering request for
approval. The statute says that “a dealer may request that the supplier approve . . . a request

8

for the sale or transfer of a dealer’s business . . . to a proposed buyer or transferee.”
(emphasis added). The syntax of this sentence is a bit unusual, but it is not ambiguous. It
describes two requests: [1] “a dealer may request that the supplier approve. . . [2] a request
for the sale or transfer of a dealer’s business to a proposed buyer.” Request #2 could
presumably be made by either the selling dealer or the prospective buyer, but that request
does not trigger the statutory protection. Only Request #1 can do that, and it can only be
made by a dealer, not the prospective buyer. To hold otherwise would effectively rewrite the
statute.
Doggett argues that, as the proposed transferee, it nonetheless qualifies as “a dealer”
under this section because it operates dealerships with suppliers other than Thermo King,
such as Freightliner. This argument does violence to the plain meaning of the Act. Read in
context with the first sentence of § 57.102(b), a qualifying request can be made only by the
selling dealer, that is, the dealer whose supplier has a contractual veto over any proposed sale
of the dealership.23 Because Thermo King is the only supplier whose approval is necessary
for the proposed transfer of the Kirby dealerships, Kirby is the only dealer eligible to make
a qualifying request. Doggett has no existing relationship with Thermo King, and whatever
relationship Doggett may have with other suppliers is immaterial under the Act.24

23

“If a supplier has contractual authority to approve or deny a request for the sale or transfer
of a dealer’s business . . . a dealer may request that the supplier approve or deny a request .
. ..” TEX . BUS. & COM . CODE ANN . § 57.102(b).

24

Although Thermo King does not frame its argument as a challenge to standing, the court has
serious doubts whether Doggett Company, LLC has standing to bring this action. Section
(continued...)
9

2.

Kirby’s May 11-18 Emails

Alternatively, Doggett contends that Kirby satisfied the Act’s “notice” requirement
by sending the May 18 email chain, later supplemented by Doggett’s June 9 letter and
Doggett’s July 28 meeting with Thermo King. This argument also fails, for several reasons.
First, Doggett’s brief signals its weakness by subtly mis-characterizing the statutory
scheme. Contrary to Doggett’s contention, § 57.102(b) is not a “notice” statute. The term
“notice” appears elsewhere in the Act,25 but not in § 57.102(b). Here, the Legislature
employs a different word — request. Unlike a mere notice, a “request” is “an instance of
asking for something, esp. in a polite or formal manner.”26 While the Kirby emails to Thermo
King might accurately (though loosely) be described as providing notice of the proposed
transaction, they cannot reasonably be construed as a request by Kirby for Thermo King to
approve the transaction.
The initial email, dated May 11 by Kirby VP Jason Robison to Therm King VP Dane
Tiaval, merely advised that Kirby had been approached by a “potential buyer,” and suggested
a meeting to discuss “the potential impact on the business.”27 Tiaval responded with a request
24

(...continued)
57.401 of the Act creates a cause of action for “a dealer” to recover its own damages. Even
if Doggett were somehow asserting this claim on behalf of Kirby, Doggett is seeking to
redress its own injury, not Kirby’s.

25

See, e.g., §§ 57.052(1), 57.152, 57.155, 57.204.

26

OXFORD ENGLISH DICTIONARY , available at
http://www.oed.com/search?searchType=dictionary&q=request&_searchBtn=Search.

27

D.Ex. C-7 at 4. Thermo King understood “impact on the business” as a reference to its OEM
(continued...)
10

for time to discuss the matter with his boss, Thermo King President Ray Pittard. Kirby’s next
email dated May 18 was a follow-up to Tiaval, inquiring merely “Have you been able to
connect with Ray on our Doggett deal?”28 Neither email, whether considered separately or
in tandem, can reasonably be construed as a dealer request invoking the protections of
§ 57.102(b).
In the first place, the emails do not explicitly invoke the Dealership Act or
§ 57.102(b). Neither email expressly requests Thermo King to approve or reject anything.
In fact, nothing in this record reflects any awareness by Kirby of its § 57.002(b) rights at the
time it sent these emails, much less an intent to invoke those rights against Thermo King.
Nor is it reasonable to infer from the circumstances that Kirby was implicitly
requesting approval for the transaction. The record evidence shows that Kirby representatives
were aware that Thermo King’s OEM policy might pose an insuperable obstacle to any
potential deal with Doggett. In order to avoid possibly jeopardizing its business relationship
with Thermo King, Kirby apparently opted for further discussion as opposed to a formal
demand for approval.29
Finally, the May 11 and 18 emails plainly do not satisfy the content requirements for
a § 57.102 request. The emails do not “include character references and reasonable financial,

27

(...continued)
policy. D.Ex. B at 104, 338.

28

D.Ex. C-7 at 4.

29

See D.Ex. C-7 at 2 (“the sooner we address any concerns TK Corp has, the better for all
involved.”).
11

personal background, and work history information with respect to the proposed buyer or
transferee.” The emails contain no details about the deal, nor do they even attach the letter
of intent between Kirby and Doggett.30
For these reasons, the court concludes that Kirby’s May 11-18 email chain does not
constitute a dealer request for approval of the sale of the Kirby dealerships under the Act.
3.

Doggett as Kirby’s Agent

Doggett argues that the Kirby emails should be evaluated in combination with
Doggett’s letter of June 9, 2016 and Doggett’s presentation at a July 28 meeting, on the
theory that on both occasions Doggett was acting as Kirby’s agent. Nothing in the statute
expressly allows for an agent of a dealer to request approval of a sale, but assuming for
present purposes the legality of such an arrangement, Doggett’s claim fails.
Texas law does not presume an agency relationship. IRA Res., Inc. v. Griego, 221
S.W.3d 592, 597 (Tex. 2007). The party alleging the agency relationship has the burden of
proving it by a preponderance of the evidence. Id. Establishment of an agency relationship
requires a meeting of the minds and consent of both principal and agent. Carr v. Hunt, 651
S.W.2d 875, 879 (Tex. App. -- Dallas 1983, writ ref’d n.r.e.). “An essential element of proof
of agency is that the alleged principal has both the right to assign the agent's task and to
control the means and details of the process by which the agent will accomplish the task.”
Johnson v. Owens, 629 S.W.2d 873, 875 (Tex. App. 1982, writ ref’d n.r.e).
30

These deficiencies were not cured by supplemental information Doggett provided to Thermo
King in June and July of 2016, whether or not Doggett was acting as Kirby’s agent. The
agency argument is considered below.
12

The June 9 letter was copied to Kirby, but nothing in the letter indicates Doggett sent
the letter on Kirby’s behalf or that Kirby endorsed its content.31 Nor has Doggett offered any
extrinsic evidence of any agreement between Kirby and Doggett that the latter was
authorized to request approval on behalf of Kirby. Doggett’s Chief Financial Officer, Brian
McLemore, testified that he spoke with Joe Reniers about sending a letter to get a meeting
set up, and Reniers thought it was a good idea.32 But nothing in the conversation described
by McLemore evidences Renier’s consent to establish any sort of agency relationship with
Doggett for this purpose, nor was any such consent ever communicated to Doggett or
Thermo King. Certainly, Kirby was an interested party with respect to Doggett’s
communications with Thermo King about the proposed deal. But that is a far cry from giving
a third party like Doggett free rein to act on Kirby’s behalf with respect to an important
matter involving Kirby’s own supplier.
On this summary judgment record, Doggett has not presented sufficient evidence to
raise a fact question regarding an agency relationship with Kirby for purposes of a dealer
request under § 57.102(b) of the Act. In light of this finding, there is no need to consider

31

Both sides attempt to inject Kirby’s state of mind into the huge void created by Kirby’s
absence from this litigation. See P.Ex. 9 at 168; P.Ex. 23. Doggett objects specifically to
Thermo King Exs. C-8 and C-10 as “double hearsay,” and to Ex. R as hearsay, and has
moved to strike them (Dkts. 68, 79). The motions are denied. However, the court notes that
it has not relied on Thermo King exhibits C-8, C-10, or R in this opinion and they are not
necessary to its ruling.

32

P.Ex. 9 at 168.
13

Kirby’s alternative grounds challenging the sufficiency of the dealer request under the Act.
B.

Texas Anti-Trust Claim
Doggett asserts that Thermo King has attempted to restrain the market by blocking

Doggett’s acquisition of the Kirby dealerships in favor of acquisition by its existing North
Dallas dealer. The Texas Free Enterprise and Anti-Trust Act grants a right of action to
persons “whose business or property has been injured by reason of any conduct declared
unlawful in Subsection (a), (b), or (c) of Section 15.05 of this Act.” T EX. B US. & C OMM.
C ODE A NN. § 15.21(a)(1). Doggett contends that Thermo King has attempted to create a
monopoly in violation of 15.05(b).33
A claim for attempted monopolization in violation of § 15.05(b) requires proof that
Thermo King engaged in predatory or anticompetitive conduct with specific intent to
monopolize, and by its conduct had a dangerous probability of achieving a monopoly. Texas
Dis. Sys. Landfill, Inc. v. Waste Manag. Holdings, Inc., 219 S.W.3d 563, 591 (Tex. App. -Austin, 2007, pet. denied) (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456
(1993)). In determining if there is an actual danger of monopoly, the court must “consider
the relevant product and geographic market and the defendant’s economic power in that
market.” Id. at 592. Here, Thermo King’s footprint in the market will remain the same

33

Neither the second amended complaint nor Doggett’s summary judgment briefing expressly
specifies whether it is claiming a violation of § 15.05 (a), (b), or (c). Doggett’s argument
indicates its claim is based on § 15.05(b). There is no allegation of concerted action by two
or more persons as needed to show a violation of § 15.05(a), and there is no allegation that
Thermo King has attempted to “sell, lease, or contract for the sale or lease of any goods,” as
required by § 15.05(c).
14

whether Kirby, Doggett, or another company runs the dealerships. Doggett cannot show that
selling the Kirby dealerships to the existing North Dallas dealer, assuming Doggett could
show that was Thermo King’s intent, would destroy competition for the products Thermo
King manufactures. The fact that Doggett would lose the opportunity to profit from the
dealership is not an injury to the competitive market.
In support of its claim, Doggett has presented the expert report of Scott A. Bayley.
Bayley opines “Thermo King has attempted to create a situation in which Convoy [the North
Dallas dealer] would be the exclusive Thermo King dealer for all of North, East, Central, and
South Texas and would have the ability to increase prices on Thermo King products and
services without any threat of intra-brand competition.”34 Thermo King is not obligated to
facilitate “intra-brand competition” — a manufacturer’s monopoly over distribution of its
own products is not illegal. Transource Int’l v. Trinity Indus., 725 F.2d 274, 283 (5th Cir.
1984).
Doggett cites Westman Comm'n Co. v. Hobart Int'l, Inc., 796 F.2d 1216, 1224 (10th
Cir. 1986), for the proposition that Transource is not an absolute bar to its claim. Westman
does not save Doggett’s case. The fact that there are cases in which a supplier’s refusal to

34

P.Ex. 39 at 15. Thermo King has filed a Daubert motion to exclude the testimony of Scott
A. Bayley (Dkt. 94). The motion to exclude Bayley’s testimony regarding Doggett’s lost
profit damages is denied as moot in light of the court’s rulings. Given the conclusory nature
of Bayley’s anti-trust injury opinions and the lack of analysis and factual support for them
in the record (see Dkt. 94 at 3-4; Dkt. 96-1 at 10, 33-34), this testimony likely fails to meet
the standards of Federal Rule of Evidence 702. Nonetheless, the court has considered the
testimony and finds it insufficient to defeat summary judgment given the legal authority of
Transource Int’l.
15

deal with a potential distributor is an anti-trust violation does not make this one of them.
Here, as in Westman, “the record reveals not the slightest hint of price maintenance or price
fixing.” As stated in Westman, “a manufacturer generally should have wide latitude in
determining the profile of its distributorships.” Id. at 1225.
Doggett further attempts to dodge Transource by arguing that Thermo King has
attempted to monopolize the service, not just the sale, of its products. Doggett has cited no
authority supporting a legal anti-trust distinction between distribution of products versus
services.35 Moreover, Doggett’s position is unsupported by evidence of the alleged market
injury. The record contains no evidence that users of Thermo King’s products are obligated
to use a Thermo King dealer for service. In addition, there is no evidence to support Bayley’s
assumption that “prices on most products and services are set by the individual dealer.” 36
Thermo King is entitled to summary judgment on Doggett’s state law anti-trust claim.
C.

Remaining Claims
Doggett has also asserted claims against Thermo King for declaratory judgment;

tortious interference with business relations; and for injunctive relief. Each of these claims
fails because Doggett cannot prove that Thermo King’s actions violated the Dealership Act
or were otherwise unlawful or tortious.
Declaratory judgment. Doggett seeks declarations that (1) the sale to Doggett is
approved; (2) Thermo King’s reasons for denying approval are invalid; and (3) the Act
35

See Dkt. 81 at 43.

36

P.Ex. 39 at 15.
16

applies to the transaction at issue. Such declarations are precluded by the court’s ruling on
Doggett’s direct claim for violation of the Act.
Tortious interference.

The elements of a claim for tortious interference with

prospective business relations are: (1) a reasonable probability of entering the prospective
relationship absent the interference; (2) intent to interfere with the prospective relationship
or knowledge that its actions would interfere; (3) conduct that is independently tortious or
unlawful; (4) the interference proximately caused injury; and (5) actual damages. Wal-Mart
Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001); Coinmach Corp. v. Aspenwood Apt.
Corp., 417 S.W.3d 909, 923 (Tex. 2013). In light of the court’s previous rulings, Doggett
cannot meet its burden on element 3, at least.
Injunctive relief. Doggett seeks to permanently enjoin Thermo King from (1)
objecting to or in any other way preventing Doggett’s acquisition of the Kirby Dealerships;
(2) approving any other sale of the Kirby Dealerships;37 and (3) further violation of the
Dealership Act and Texas Antitrust Act or interference with Doggett’s business relationships.
In light of the rulings above, Doggett is not entitled to injunctive relief.
Conclusion and Order
For the reasons discussed above, Thermo King’s motion for summary judgment (Dkt.
50) is granted and Doggett’s motion for summary judgment (Dkt. 66) is denied. The court
will issue a separate final judgment.

37

Thermo King voluntarily stipulated not to approve any other sale during the pendency of this
case, mooting the request for a preliminary injunction. Dkt. 31.
17

Signed at Houston, Texas on August 1, 2017.

18