                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    November 21, 2005
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                 No. 04-11314



PATRICK H. HIGHTOWER, individually and d/b/a P&D Consulting and
Contracting Engineers,

                                           Plaintiff-Appellant-Cross-
                                           Appellee,

versus

KIDDE-FENWAL, INC., d/b/a Chemetron Fire Systems, Inc.,

                                           Defendant-Appellee-Cross-
                                           Appellant,

                         ______________________

             Appeal from the United States District Court
                  for the Northern District of Texas
                         USDC No. 04-CV-153-A
                        ______________________

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Alleging    tortious   interference        with   contract,     Patrick

Hightower sued Chemetron in district court.               The court granted

summary judgment to Chemetron.          We affirm.

      Hightower beat out Chemetron in bidding to design and provide

a   fire   protection   system    for   Alcom.    There   were   significant

problems with his performance - Hightower ran late and provided


      *
      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this opinion should not be published and is not precedent except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.
inadequate drawings for the system on multiple occasions.        Alcom’s

parent company, Alcan, hired Chemetron, with which it had had a

long relationship, to review Hightower’s work. Chemetron’s reviews

were critical of his work, but Hightower points to only one

statement as false.

      The district court stated, and Hightower does not contest on

appeal (aside from making a conclusory, unconvincing argument about

a three-inch valve), that the only real dispute regarding the

accuracy of the reviews stemmed from Chemetron’s statement that an

electronic relay selected by Hightower was an older design which

Chemetron had stopped using. Hightower claimed that this statement

was false and put him in a bad light.     Hightower does not contest

the   district   court’s   conclusion   that   the   evidence   here   is

ambiguous; more importantly, he does not contest the court’s

conclusion that the ambiguity is irrelevant because Hightower never

contested what really mattered - that he was planning to use the

older relay. Thus, we consider Chemetron’s reviews to be accurate,

even if highly critical of Hightower.

      After more delays and inadequate performance, Alcan directed

Alcom to fire Hightower, which it did.

      The district court granted summary judgment to Chemetron after

concluding that it was privileged and justified1 in its actions


      1
      Privilege and justification are affirmative defenses to
tortious interference with contract in Texas. David L. Aldridge
Co. v. Microsoft Corp., 995 F. Supp. 728, 742 (S.D. Tex. 1998).

                                   2
because its reviews were done pursuant to a reasonable request for

advice and were not false.             We review de novo.2

         We agree with the district court that there is no genuine

issue of material fact and that Chemetron is entitled to judgment

as   a       matter    of   law.     Hightower    argues    that     privilege       and

justification are negated by “sharp dealing,” but even if this were

so, he has not shown any sharp dealing. Although relations between

the parties were acrimonious, allegations that Chemetron behaved

“unfairly,” “bellyached,” or spewed negative information about

Hightower        are    insufficient    where     there    is   no   evidence       that

Chemetron lied in its reviews of Hightower’s work.                          Similarly,

Hightower has not shown that Chemetron’s position as reviewer was

inherently       unfair     and    should,   as   a   matter    of   law,    void    the

affirmative defense.

         The only specific action by Chemetron alleged by Hightower

that is arguably at the margin of privilege or justification is

Chemetron’s alleged October 22, 2001 bid for Hightower’s ongoing

project.         Even if that allegation was supported by competent

evidence - the bid appeared in the record as an unauthenticated e-

mail - Hightower has pointed to no authority holding such a bid to

be per se tortious.           At the time of the bid, Hightower was almost




         2
      Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292
(5th Cir. 1998).

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two months late and had presented inadequate drawings.3

     For these reasons, the district court’s grant of summary

judgment to Chemetron is AFFIRMED.   We need not and do not reach

Chemetron’s attack on Hightower’s evidence.

     AFFIRMED.




     3
      Jack v. State, 694 S.W.2d 391, 398-99 (Tex. App. - San
Antonio 1985, writ ref’d n.r.e.) (holding that once a party has
materially breached a contract, the non-breaching party is excused
from further performance); see C.E. Servs. Inc. v. Control Data
Corp., 759 F.2d 1241, 1248 (5th Cir. 1985) (holding that inducing
a party to cease contractual relations when it has a right to do so
cannot be tortious).

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