                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 10 1998
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    BELLEVIEW VALLEY LAND
    CO., INC.,

              Plaintiff-Appellant,
                                                       No. 97-2307
    v.                                            (D.C. No. CIV 96-1304)
                                                         (D. N.M.)
    WALTERSCHEID TRUCKING
    AND FARMS, INC., a New Mexico
    corporation; HENRY
    WALTERSCHEID, individually,

              Defendants-Appellees.




                          ORDER AND JUDGMENT *



Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Belleview Valley Land Co. appeals from the district court’s grant of

summary judgment to defendants on Belleview’s claim of tortious interference

with contract.

              “We review the grant or denial of summary judgment de novo,
      applying the same legal standard used by the district court pursuant
      to Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the
      pleading, depositions, answers to interrogatories, and admissions on
      file, together with the affidavits, if any, show that there is no genuine
      issue as to any material fact and that the moving party is entitled to
      judgment as a matter of law.”

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted).

      In 1994, Belleview entered into a contract for the purchase of farm property

under lease to defendants. Upon Belleview’s tender of the purchase price, the

sellers refused to accept the payment and refused to close the sale. Belleview

ultimately sued in state court for specific performance and, in 1995, the sellers

conveyed title of the property to Belleview. This suit, based on diversity

jurisdiction, followed. The parties stipulated that New Mexico law controls their

dispute. Our jurisdiction over this appeals arises from 28 U.S.C. § 1291.




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      Before the district court, Belleview contended that defendants tortiously

interfered with the contract for the sale of the property. It argued that defendants

offered to buy the property should the contract fall through as an inducement to

break the contract, and that defendants threatened to sue the sellers should they

honor the contract. Further, it contended that defendants had no justification to

interfere because, beyond the term of the then-current lease to which the sale was

already subject, they had no legal rights in connection with the property.

      Applying New Mexico law, the district court concluded that Belleview had

failed to present evidence demonstrating genuine issues of material fact as to the

existence of either improper means or improper motive. Specifically, it ruled

that Belleview’s evidence did not support its claims that defendants had

threatened to sue the sellers and that Belleview’s arguments on improper motive

fell short of precluding summary judgment because it had not shown that

defendants played an active role in causing the breach of contract, and because

there was no evidence that defendants acted solely to harm Belleview.

      On appeal, Belleview contends that the district court misapplied New

Mexico law. It argues, for the first time on appeal, that New Mexico law

recognizes a claim for tortious interference with contract based upon either

improper means or improper motive or conduct interfering with a contract

performed without justification or privilege. Indeed, the district court quoted


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from Quintana v. First Interstate Bank, 737 P.2d 896, 898 (N.M. Ct. App. 1987)

in stating New Mexico law on tortious interference with contract: “[A] plaintiff

must demonstrate that the defendant ‘interfered [with contractual relations] with

an improper motive or by improper means, or acted without justification or

privilege.’” District Court Order at 4. However, Belleview did not present this

theory of recovery, namely that “[l]iability exists in the absence of an improper

motive or means if the interference by the defendant occurs in the absence of

justification or privilege,” Appellant’s Br. at 9, before the district court. It argued

generally that defendants were not justified in allegedly acting to interfere with

the contract, but not that a lack of justification alone was sufficient basis for

bringing suit for tortious interference with contract. Therefore, we do not

consider the argument on appeal. See Bancamerica Commercial Corp. v. Mosher

Steel of Kansas, Inc., 100 F.3d 792, 798-99 (10th Cir.) (appellate court will not

consider a new theory “that falls under the same general category as an argument

presented [below] or . . . a theory that was discussed in a vague and ambiguous

way” before the district court) (quotation omitted), opinion amended on other

grounds, 103 F.3d 80 (10th Cir. 1996). We note, however that Belleview’s

proposition contradicts other New Mexico authority on the issue. See M & M

Rental Tools, Inc. v. Milchem, Inc., 612 P.2d 241, 246, 247 (N.M. Ct. App. 1980)

(showing of improper means or improper motive “required for liability;” question


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of privilege arises only “if the acts charged would be tortious on the part of

an unprivileged defendant”) (quotation omitted).

      Belleview also challenges the district court’s rulings that its evidence does

not establish genuine issues of material fact regarding the existence of improper

motive and improper means. As to improper motive, Belleview contends the facts

imply that defendants sought to defeat the contract between Belleview and the

sellers. This argument is not persuasive. Improper motive, as the district court

noted, requires some showing that defendants’ aim was solely to harm Belleview.

See M & M Rental Tools, 612 P.2d at 246. Belleview made no such showing

and, indeed, does not argue so on appeal.

      As to improper means, Belleview maintains that testimony from the

underlying state action demonstrates that the defendants threatened to sue the

sellers if they honored the contract with Belleview. However, the only testimony

to which Belleview cites is hearsay and therefore cannot be relied on to defeat

summary judgment. See Aramburu v. Boeing Co., 112 F.3d 1398, 1401 n.1

(10th Cir. 1997) (citing Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555

(10th Cir. 1995)).

      Finally, Belleview contends generally that numerous questions of fact

preclude summary judgment, especially questions regarding defendants’ intent

and good faith. It argues that intent is a question of fact precluding summary


                                         -5-
judgment. As discussed above, Belleview failed to demonstrate genuine issues

of material fact regarding either improper motive or improper means as those

terms are defined under New Mexico law. That intent is a question of fact and

does not relieve Belleview of its burden to meet the applicable legal standards.

      The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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