                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                          April 14, 2005
                         FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                          Clerk


                               No. 03-20753



     T&T SPORTS MARKETING, LTD., a Cayman
     Islands Corporation,

                                  Plaintiff - Appellee-Cross-Appellant,

                                   versus

     DREAM SPORTS INTERNATIONAL, L.L.C.,
     Etc.; ET AL.,

                                  Defendants,

     DREAM SPORTS INTERNATIONAL, L.L.C.,
     a Texas Limited Liability Company,

                                  Defendant - Appellant-Cross-Appellee,

                                   versus

     CCN SPORTS NETWORK, INC.; INTER-FOREVER
     SPORTS, INC.,

                                  Third Party Defendants - Appellants.


                Appeal from the United States District Court for
                         the Southern District of Texas
                          (USDC No. 4:01-CV-3716)
       _________________________________________________________


Before REAVLEY, JOLLY and PRADO, Circuit Judges.
PER CURIAM:*

       The judgment against the third-party defendants CCN and Inter-Forever is

reversed and rendered, and the judgment is otherwise affirmed, for the following reasons:

       1. We do not agree with Dream Sports that it was excused from its payment

obligations by a prior material breach of T&T. We agree with T&T that both parties

treated the contract as in effect until T&T terminated the contract for non-payment in the

fall of 2001, by filing suit and selling the rights to broadcast the final rounds of the

SAWCQ tournament to CCN. In these circumstances, “[i]f the non-breaching party elects

to treat the contract as continuing and insists the party in default continue performance,

the previous breach constitutes no excuse for nonperformance on the part of the party not

in default and the contract continues in force for the benefit of both parties.” Gutpa v. E.

Idaho Tumor Inst., 140 S.W.3d 747, 756 (Tex. App.–Houston[14th Dist.] 2004, pet.

denied). See also Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 887-88

(Tex. App.–San Antonio 1996, writ denied).

       2. Dream Sports does not persuade us that T&T received a double recovery.

       3. Dream Sports, as the losing party in a contract dispute, is not entitled to

attorney’s fees under Texas law.




       *
        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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       4. T&T does not persuade us that the district court reversibly erred in it rulings

relating to its fraudulent transfer claim. “The trial judge’s decision to curtail discovery is

granted great deference and, thus, is reviewed under an abuse of discretion standard.”

Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992). We

will reverse a discovery ruling only if it is “arbitrary or clearly unreasonable,” Mayo v.

Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986), and the complaining party

demonstrates that it was prejudiced by the ruling, see Hastings v. N. E. Indep. Sch. Dist.,

615 F.2d 628, 631 (5th Cir. 1980). Insofar as T&T complains about limitations on

discovery relating to the fraudulent transfer claim, T&T does not demonstrate that the

district court’s rulings were clearly unreasonable. Its own briefing refers to exhibits and

testimony allegedly proving its fraudulent transfer claim. It does not demonstrate the

specific prejudice that resulted from specific rulings that it asserts were erroneous.

       5. The district court did not abuse its discretion in excluding testimony from

T&T’s expert for untimely designation.

       6. Insofar as T&T complains that the district court did not fully recognize or

appreciate its fraudulent transfer claim, the district court did submit this claim to the jury,

and the jury rejected it.

       7. We therefore affirm T&T’s judgment against Dream Sports. However, we

reverse the $161,000 judgment against CCN and the $161,000 judgment against Inter-

Forever, and render a take nothing judgment in favor of these third-party defendants.

Dream Sports prevailed below on a tortious interference claim against CCN and Inter-

                                               3
forever. We are unable to discern any basis for holding Inter-Forever liable for tortious

interference with contract. As to CCN, in November of 2001 T&T conveyed broadcast

rights to CCN for the last rounds of the SAWCQ tournament. By this time, however,

T&T had terminated the contract with Dream Sports. An essential element of tortious

interference is the existence of a contract subject to interference. Thrift v. Hubbard, 44

F.3d 348, 356 (5th Cir.1995) (citing Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925,

926 (Tex.1993)). This element was not established at trial. Accordingly, the judgment

against CCN cannot stand.

       AFFIRMED in part, REVERSED and RENDERED in part.




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