      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00523-CV



             New York Life Insurance Company; New York Life Insurance and
                  Annuity Corporation and Michael Coffey, Appellants

                                                v.

                                   Phillip M. Miller, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
     NO. GN100222, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                                          OPINION


               This case involves a dispute between two life-insurance agents over a large

commission. Michael Coffey, an agent of New York Life Insurance Company, was asked by

financial advisors of the CEO of Mary Kay Cosmetics to help implement a complex set of estate-

planning transactions that included a “split dollar conversion” of a $10 million New York Life term

policy. This transaction generated a large commission for Coffey. Phillip Miller, another New York

Life agent, was the permanent servicing agent on the policy. Both Miller and Coffey were obligated

under their respective contracts with New York Life to follow the rules for client contact. Miller

alleged that, although Coffey did eventually contact him about his work on the policy, Coffey

violated the rules by failing to contact him as soon as he began to work on the conversion. Miller

sued New York Life for breach of its contract with him and for negligent misrepresentation; he also
sued Coffey for tortious interference with Miller’s contracts with New York Life. The claims were

submitted to a jury, which returned a verdict in Miller’s favor. The court rendered judgment on the

verdict awarding Miller $38,236.67 on his contract claim and $100,000 on his negligent-

misrepresentation claim, both against New York Life, and awarding him $38,236.68 in

compensatory and punitive damages against Coffey. The trial court denied New York Life’s motions

for judgment notwithstanding the verdict, new trial, and remittitur. On appeal, New York Life and

Coffey challenge the legal and factual sufficiency of the evidence. We hold that the evidence is

legally insufficient to support the findings that New York Life breached its contract with Miller and

made a negligent misrepresentation, and the finding that Coffey intentionally interfered with Miller’s

contract with New York Life. We reverse the trial court’s judgment and render judgment that Miller

take nothing on his claims.


                                         BACKGROUND

Miller as Agent and Successor Agent

               In 1997, Phillip Miller left a career in the non-profit sector to become a New York

Life insurance agent. At that time, Miller signed the company’s standard agent’s contract. Albert

Almanza was instrumental in recruiting Miller and became his mentor at New York Life. When

Almanza retired in 1999, he made Miller his successor agent. This meant that Almanza turned over

his “book of business”1 to Miller, and Miller became the servicing agent on all of the policies that




       1
          An agent’s “book of business” refers to the list of policyholders for whom he is the
assigned servicing agent. It generally consists of policyholders who bought their policies from that
agent.

                                                  2
Almanza had sold. As a part of this process, Miller signed a second contract, a successor-agent

agreement.

                The purpose of New York Life’s successor-agent program is to provide unbroken

service to policyholders when an agent retires. Under the program, the commissions from policies

in effect at the time of the succession continue to go to the original agent, while the successor agent

receives certain renewal premiums as compensation for servicing the policies. The true value of

being a successor agent, however, is the opportunity to establish relationships and make new sales

to existing New York Life policyholders. Nothing in the successor-agent agreement gives the

successor agent exclusive access to, or the exclusive right to sell New York Life products to, any

policyholder.

                Before he became Almanza’s successor agent, Miller’s book of business contained

approximately 300 policyholders. Almanza’s book of business, compiled over an entire career, was

much more extensive, numbering between 1500 and 1800 policyholders.2 Before approving the

succession, New York Life required Miller to hire an administrative assistant and lease additional

office space to ensure that he was able to meet his new policy-servicing obligations and take full

advantage of his new opportunities to sell New York Life products.




       2
          Miller testified that before Almanza retired, the two of them “purged” some of the clients
from Almanza’s book of business, and that after Miller succeeded Almanza, his book of business
totaled approximately 1600 policyholders.

                                                  3
Richard Rogers’s Term-Life Policy

               Almanza’s book of business included a $10 million term-life policy3 written on

Richard Rogers, the CEO of Mary Kay Cosmetics. Rogers’s estate-planning and insurance matters

were handled by a team of financial advisors. Gary Stallard, an independent insurance broker, was

the team member in charge of insurance matters. In the early 1990s, Rogers’s trustee purchased the

New York Life term policy as a part of Rogers’s estate plan. Although Stallard can sell New York

Life products himself as an independent broker, he instead placed the policy through Almanza and

split the commission with him. Stallard testified that he did so at the insistence of Mary Kay’s

treasurer, Walter Trapp, who was Almanza’s personal friend. Stallard also testified that Almanza

never interacted with any of the other members of Rogers’s estate-planning team.

               In early 2000, Stallard began to implement a complex set of transactions called “split-

dollar conversions” of Rogers’s life-insurance policies.4 He had been considering such transactions

for several years, but the issue had never before reached “the front burner with the team.” Because

of the extreme complexity of the planning, Stallard began looking for someone with “at least [his]

level of expertise when it comes to split-dollar estate planning issues.” He testified that he was




       3
         The Policy was originally a $10 million straight term-life policy. In 1998, however, it was
converted to a $10,000 whole-life policy with a $9,990,000 term rider.
       4
          The term-life policy at issue was one of several policies in Rogers’s estate plan, altogether
totaling approximately $60 million in life-insurance coverage.

                                                  4
“mostly concerned about the New York Life [policy]” and wanted “help with the nuances of their

product.” After asking around the Dallas insurance community, Stallard asked Michael Coffey with

the Dallas office of New York Life to work with him on the project. Stallard first asked Coffey to

work as a consultant for a fixed fee but eventually offered him a portion of the commissions.5

Although both Stallard and Coffey worked on converting all of Rogers’s insurance policies, they

eventually decided that Coffey would take the New York Life commission of $191,183.38 and

Stallard would keep the commissions on the other policies. The commission on the New York Life

policy represented approximately twenty percent of the total commissions generated by the policy

conversions.


Rules for Client Contact

               New York Life has rules of conduct for client contact that require an agent to

determine whether another New York Life agent has an established client relationship before

becoming involved with a prospective customer. If an agent discovers that a prospective customer

has a pre-existing relationship with another New York Life agent, he is required to notify the other

agent of the contact. If a dispute over a commission arises, the rules require the agents to submit the

dispute to their respective managing partners and then to the agency standards officer for the Zone




       5
          Miller questioned this testimony in closing argument, citing to an earlier affidavit in which
Stallard fails to mention any fee arrangement.

                                                  5
office;6 the rules additionally provide that the “[m]anaging partner or the Zone will have the authority

to decide the assignment of commissions according to their business judgment.”

               During their initial meeting, Stallard told Coffey about the history of the New York

Life policy, noting that Almanza was no longer the servicing agent. A short time later, Coffey asked

his managing partner, Mark Koskovich, how he should handle this unusual situation.7 Koskovich

immediately contacted the West Central Zone office and was informed that Coffey needed to contact

the current servicing agent.8 Koskovich relayed this information to Coffey.9

               Coffey sent Miller the following letter dated March 21, 2000:


       The owner of this contract, Mr. John Rochon of the Richmont Corporation [Mr.
       Rogers’s trustee under his estate plan] and the insured, Mr. Richard R. Rogers [have]
       asked me to service this contract.


       6
          In the New York Life hierarchy, a “Zone office” supervises the agents and managers in the
general offices—such as the Austin and Dallas offices involved in this case—a single Zone generally
covers several states.
       7
          There is conflicting evidence about the date on which this discussion took place. In the
discovery process, Coffey, Stallard, and Koskovich all initially recalled the events related to Coffey’s
involvement taking place in March 2000. At trial, however, documentary evidence made it clear that
Stallard had contacted Coffey by late January 2000. Both Coffey and Stallard testified at trial that
Coffey became involved in January 2000; however, portions of Koskovich’s deposition testimony
in which he claimed he met with Coffey and called the Zone in March 2000, was made a part of the
record.
       8
          Koskovich testified that he spoke with Dave Bott. Bott was the chief operating officer of
the West Central Zone at that time. Charmaine Goodman, who was the agency standards officer at
the time, testified that it was she who spoke with Koskovich.
       9
          The exact content of this communication is somewhat unclear. Coffey testified that
Koskovich told him that he needed to notify Miller sometime before he actually effected the policy
conversion, while Koskovich testified that he “told Mike [Coffey] that he needed to notify the agent
in writing that he would be servicing the case,” and indicated that Coffey should have notified Miller
as soon as he realized that there would be “ongoing activity” on the policy.

                                                   6
       This courtesy letter is to let you know that I will be handling the servicing of this
       contract according to the wishes of the insured.


When he received the letter on March 27, 2000, Miller filed it away. He did not attempt to speak

with Coffey or any of Rogers’s estate-planning team, nor did he attempt to speak with his managing

partner. Coffey and Stallard effected the policy conversion a little over a week later. When Miller

eventually discovered that the policy had been converted and that Coffey had received the full

commission, he sent Coffey e-mail and voice-mail messages, and a formal letter, indicating that as

the servicing agent he was entitled to some portion of the commission and that he wished to speak

with Coffey to resolve the matter. Coffey left Miller voice-mail messages but the two never actually

spoke. Coffey testified that he then contacted the Zone office to inform it of the potential dispute,

and was told that the Zone would “handle it from this point.” Apparently in response to Coffey’s

call, someone at the Zone office contacted Carl Carter, Miller’s managing partner, and asked him

to tell Miller to stop attempting to contact Coffey. Miller then discussed his complaint with Carter.

Carter testified that he initially did not believe that Miller was entitled to any share of the

commission because Miller had not responded to Coffey’s letter. Carter nonetheless attempted to

contact Coffey’s managing partner. When he found that Coffey’s managing partner was out of town,

Carter contacted the Zone office and was informed that an investigation had been conducted and a

decision had been reached. A few weeks later, according to Carter, Miller convinced him that he

might be entitled to some portion of Coffey’s commission. Carter then asked Miller to detail his

position in a letter to him, which he forwarded to the Zone office.




                                                 7
               After considering Miller’s letter and contacting Coffey to answer some questions,

Charmaine Goodman, the agency standards officer for the West Central Zone, decided that in her

judgment Coffey was entitled to the full commission. She sent Miller her decision in a letter which

addressed each of his complaints. A few weeks later, Miller responded, indicating his surprise that

Carter had forwarded his letter to the Zone and asking Goodman to reconsider “the overall

circumstances surrounding the transaction.” Miller provided Goodman a timeline and claimed that

Coffey had not given him adequate time to respond before transacting business with Roger’s

advisors. Miller also requested an interview. After attempting to reach him by telephone, Goodman

sent Miller the following e-mail message:


       . . . [W]e seem to be playing phone tag and I will not be available the rest of the
       week. I did take the opportunity to review the file again and based on the
       information you provided in your letter to Carl Carter, your letter dated 6/21 [i.e.
       Miller’s letter to Goodman] and your voice mails we do not see a reason to make any
       adjustments to our earlier decision. You had not personally written any business on
       Richard Rogers and he wanted to do business with another agent. The agent from
       whom you inherited your business (Albert Almanza) also did not have a personal
       relationship with Rogers.

       After Richard Rogers and John Rincon contacted Coffey about handling their
       insurance, Coffey did notify you in writing on 3/21/00 that Rogers wished to do
       business with him, according to the code of ethics requirement.

       Based upon the above information, we did not find any reason to adjust commissions.
       I am sorry our response could not have been more favorable.


The Lawsuit

               Miller then filed suit against Coffey and New York Life. He alleged among other

things that New York Life was liable for breach of contract and negligent misrepresentation and that



                                                 8
Coffey had tortiously interfered with the contractual relationship between Miller and New York

Life.10 The case was tried to a jury, which found that New York Life had breached its contract and

made a negligent misrepresentation to Miller. The jury awarded Miller $38,236.67 on the breach-of-

contract claim and $100,000 on the negligent-misrepresentation claim. The jury also found that

Coffey had tortiously and maliciously interfered with Miller’s contract.         It awarded Miller

$28,677.51 in actual damages and $9559.17 in exemplary damages, totaling $38,236.68, on the

tortious-interference claim.11 The jury’s combined awards on the breach-of-contract and tortious-

interference claims totaled $76,473.35, precisely forty percent of Coffey’s $191,183.38 commission,

one-half to be paid by Coffey and one-half charged to New York Life. New York Life and Coffey

appeal, claiming among other things that the evidence is insufficient to support these jury findings.


                                          DISCUSSION

               New York Life claims that there is no evidence or factually insufficient evidence to

support the jury’s findings that it breached its contract with Miller, and that it made a negligent

misrepresentation to Miller. Coffey claims that there is no evidence or factually insufficient




       10
         Miller also alleged that New York Life was liable for fraud and that Coffey was liable for
“money had and received / unjust enrichment”; however, these claims were not presented to the jury.
       11
           The jury also found that Miller had breached his obligations to New York Life and
Coffey—issues raised by counterclaim. There was no damages question submitted with these claims
and the jury declined to award attorney’s fees in connection with them. The trial court disregarded
these findings and rendered judgment on the verdict for Miller.

                                                 9
evidence to support the jury’s finding that he tortiously interfered with Miller’s contract with New

York Life.

               To review the evidence under a no-evidence point, we consider all the evidence in

the light most favorable to the prevailing party, indulging every reasonable inference in that party’s

favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998);

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994). We will uphold the finding if

more than a scintilla of evidence supports it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499

(Tex. 1995). The evidence supporting a finding amounts to more than a scintilla if reasonable minds

could arrive at the finding given the facts proved in the particular case. See id.; Moriel, 879 S.W.2d

at 25.


New York Life’s Breach of Contract

               The elements of breach of contract are: (1) that a valid contract existed, (2) that the

plaintiff performed or tendered performance, (3) that the defendant breached the contract, and (4)

that the plaintiff was damaged as a result of the breach. Wallace v. Ramom, 82 S.W.3d 501, 504

(Tex. App.—San Antonio 2002, no pet.); see Snyder v. Eanes Indep. Sch. Dist., 860 S.W.2d 692,

695 (Tex. App.—Austin 1993, writ denied). The primary concern of a court in construing a written

contract is to ascertain the true intent of the parties as expressed in the instrument. National Union

Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995). Only where a contract is first

determined to be ambiguous may the court consider the parties’ interpretation and admit extraneous

evidence to determine the true meaning of the instrument. Id. Whether a contract is ambiguous is

a question of law for the court to decide. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280,


                                                 10
282 (Tex. 1996). The determination is made by looking at the contract as a whole, in light of the

circumstances present at the time the contract was executed. Id. If a written contract is so worded

that it can be given a definite or certain legal meaning, then it is not ambiguous. Id. Parol evidence

is not admissible for the purpose of creating an ambiguity. National Union, 907 S.W.2d at 520.

               At trial, Miller pleaded and argued to the jury that New York Life breached both his

agent’s contract and his successor-agent agreement. The jury found that New York Life had

breached one or both of these agreements and awarded Miller $38,236.67. New York Life argues

that there is no evidence to support either of Miller’s breach-of-contract theories. We agree.

               In his agent’s contract, Miller agreed to abide by New York Life’s rules as set out in

its agent’s handbook and elsewhere:


       The Agent hereby (a) acknowledges receipt of the “Agent’s Handbook” and agrees
       to observe and abide by the limitations of authority and the rules specified in or
       issued as supplements to the Handbook which apply generally to Agents of New
       York Life; [and] (b) agrees that the Agent’s rights to receive commissions and
       service fees as provided in this contract shall be further subject to the rules relating
       to commission and service fees as contained in the Agent’s Handbook or other
       published New York Life rules.


Section 14(a) of New York Life’s agent’s handbook states:


“THE GENERAL REQUIREMENTS CONCERNING COMPENSATION are as follows: . . . (ii)

If there is any question or controversy between agents as to who is entitled to compensation for a

particular policy, the company’s decision thereon shall be final.”


               New York Life’s rules on client contact state:



                                                 11
       WHEN CONFLICTS CAN NOT BE RESOLVED:

       Remember, although it is company policy that any client can work with any agent
       they may choose, the Company reserves the right in conflict situations under section
       14aii of the Agent’s Handbook to assign commissions according to the Company’s
       judgment.

       In any conflict situation the Managing Partner or the Zone will have the authority to
       decide the assignment of commissions according to their business judgment.

       The decision will be based on all facts relating to the case. Specific attention will be
       paid to the degree to which you have adhered to these rules and prior violations of
       the rules. The assignment of commissions, if the agent has been particularly
       egregious in ignoring these rules, may include the assigning of 100% of the
       commission on a new sale to the original agent, as well as appropriate disciplinary
       action.

       All decisions will be made on a case by case basis. . . .


               Miller spent much of the trial attempting to prove that Coffey failed to comply with

New York Life’s rules of conduct. Larry Reiber—the New York Life training officer who conducted

Miller’s training—testified that Coffey should have notified Miller sooner of his involvement with

Stallard and that the letter Coffey sent to Miller was inadequate. However, instead of suing Coffey

for breach of his agent’s contract with New York Life on a third-party-beneficiary theory, Miller

sued New York Life for breach of Miller’s own agent’s contract and successor-agent agreement, and

sued Coffey for tortious interference with those contracts.

               The consistent theme of Miller’s argument and evidence below was that by allowing

Coffey to keep the entire commission, New York Life failed to “protect” Miller’s book of business.

He continues this line of argument on appeal, claiming that “New York Life had an obligation to

prevent Coffey from raiding his newly earned book of business” and that “[t]o sanction Coffey’s raid



                                                 12
on Miller’s book of business is to pretend that New York Life never approved its successor

agreement with Miller.”

                Miller’s argument that his successor-agent agreement was breached is somewhat

confusing because the agreement itself does not address commission disputes. As discussed above,

the successor-agent agreement simply makes Miller the permanent servicing agent for Almanza’s

former clients. Miller introduced as parol evidence his own testimony that Carter “led [him] to

believe” that the business he inherited from Almanza would be “protected,” although he admitted

that the written agreement contained no such promise. The remainder of the testimony relating to

“protection” of Miller’s business relates to the degree of protection that Miller was entitled to under

the rules of client conduct, a part of his agent’s contract.12

                In order to have a binding contract, the essential terms must be sufficiently certain

to define the rights of the parties. See Stinger v. Stewart & Stevenson Serv., Inc., 830 S.W.2d 715,

720 (Tex. App.—Houston [14th Dist.] 1992, writ denied). A vague assertion that Miller’s business

would be “protected” to some unspecified degree is itself far too indefinite to create a binding

contractual obligation. Moreover, it is only when a contract is first determined to be ambiguous that

courts may consider the parties’ interpretation. National Union, 907 S.W.2d at 520. If contract

language is not fairly susceptible to more than one meaning, extrinsic evidence is inadmissible to




        12
           Although his position is not entirely clear, both at trial and on appeal Miller attempts to
link the two contracts. His position seems to be that because New York Life’s rules for client
contact, incorporated into his agent’s contract, were violated with respect to a policy he was
servicing as a successor agent, his successor-agent agreement was therefore breached, along with his
agent’s contract, because New York Life failed “to prevent Coffey from [breaching the rules and
thereby] raiding his newly earned book of business.”

                                                   13
contradict or vary the meaning of the explicit language of the parties’ written agreement. Id. at 521.

Here, the precise degree of protection that New York Life owed Miller under his contracts is explicit.

If a commission dispute arises, Miller is entitled to have New York Life resolve the dispute in its

business judgment. The fact that New York Life resolved the dispute between Miller and Coffey

in a way that Miller does not agree with does not indicate that it breached its contract.13 See Stinger,

830 S.W.2d at 721 (“the fact that the company decided to act on its discretionary power [to adjust

commissions] to appellant’s detriment does not make it a breach of contract”). Goodman resolved

the commission dispute based on the facts relating to the case. She considered among other things

the degree to which Coffey had complied with the rules as she interpreted them, the length of the

period between Coffey’s notification and the conversion of the policy, the fact that neither Almanza

nor Miller had been personally involved with Rogers or Rogers’s estate-planning team, and the fact

that the client clearly desired to do business with Coffey. Miller simply disagreed with Goodman’s

determination and sought to have a jury readjudicate his commission dispute with Coffey.14

       13
            The rules for client conduct state:

            If a conflict occurs . . . [with an agent from another office] and you are unable
            to resolve [it] on a personal level, you should contact your Managing Partner
            to discuss and settle the matter with the other Managing Partner involved. If
            the Managing partners involved can not resolve the conflict, the matter should
            be referred to the Agency Standards Office in the Zone/Zones for resolution.

It could perhaps be argued that New York Life breached its contract when Miller’s managing partner,
Carter, forwarded his complaint to the Zone office without first making contact with Coffey’s
managing partner, Koskovich. However, we do not think this language creates an affirmative
obligation to always attempt to resolve disputes at the managing-partner level before going to the
Zone. Indeed the Zone may already be involved, as it was in this case.
       14
           In effect this is what the jury did by awarding Miller breach of contract and tortious
interference damages that totaled forty percent of the $191,183.38 commission, to the penny.

                                                   14
               New York Life did not make any contractually binding promise that, as a successor

agent, Miller would be automatically entitled to a share of commissions on future transactions

involving the policyholders to whom he was assigned. Moreover, under the unambiguous provisions

of the agent’s contract, agent’s handbook, and rules for client contact, New York Life acted within

its right to resolve the commission dispute between Miller and Coffey. We sustain New York Life’s

first issue, reverse the judgment of the trial court that New York Life breached its contract with

Miller, and render judgment that Miller take nothing on his breach-of-contract claim.15


Negligent Misrepresentation

               To establish a claim for negligent misrepresentation, Miller was required to prove

that, without exercising reasonable care or competence, New York Life made a representation in the

course of its business, or in a transaction in which it had a pecuniary interest, which contained “false

information” for the guidance of Miller in his business. See Federal Land Bank Ass’n v. Sloane, 825

S.W.2d 439, 442 (Tex. 1991). He also was required to prove that he suffered pecuniary loss by

justifiably relying on the information. See id. Significantly, the sort of “false information”

contemplated in a negligent-misrepresentation case is a statement of existing fact, not a promise of

future conduct. Key v. Pierce, 8 S.W.3d 704, 709 (Tex. App.—Fort Worth 1999, pet. denied); Allied


       15
            The trial court awarded Miller his attorney’s fees of $79,000 against New York Life
pursuant to section 38.001(8) of the civil practice and remedies code, which provides for recovery
of attorney’s fees “if the claim is for . . . an oral or written contract.” See Tex. Civ. Prac. & Rem.
Code Ann. § 38.001(8) (West 1997). To recover attorney’s fees under this section a party must both
prevail on the cause of action for which attorney’s fees are recoverable and recover damages. Green
Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); Great Am. Prods. v. Permabond Int’l, 94
S.W.3d 675, 684 (Tex. App.—Austin 2002, pet. denied). In light of our holding that New York Life
did not breach its contract, we reverse the award of attorney’s fees to Miller.

                                                  15
Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); Smith

v. Sneed, 938 S.W.2d 181, 185 (Tex. App.—Austin 1997, no writ); Airborne Freight v. C.R. Lee

Enters., 847 S.W.2d 289, 294-95 (Tex. App.—El Paso 1992, writ denied). Moreover, the tort of

negligent misrepresentation frequently involves a defendant’s statement that a contract exists, upon

which the plaintiff relies, only later to discover that the contract has been rejected or never

completed. Airborne Freight, 847 S.W.2d at 295; see, e.g., Sloane, 825 S.W.2d at 440-442. Thus,

negligent misrepresentation is a cause of action recognized in lieu of a breach-of-contract claim, and

is not usually available when a contract is in force between the parties. Airborne Freight, 847

S.W.2d at 295.

                 It is not entirely clear from the record what “misrepresentations” Miller claimed were

made. In his brief, Miller claims that he detrimentally relied on New York Life’s representations that

it would “protect his book of business by . . . mandating that unassigned agents could not develop

in any manner business relations with an assigned client unless and until the assigned agent was

notified.” He claims that these representations were made “personally, in training, and by written

word.” Our review of the record indicates that nearly all of the references to “protection” of Miller’s

book of business involve interpretation of contractual terms.

                 In these circumstances, we agree with New York Life that any representations

involving the degree of protection Miller would receive are not actionable in negligent

misrepresentation. To the extent that Miller is claiming that New York Life’s failure to honor its

written contract, as Miller interprets it, itself constitutes negligent misrepresentation, his position is

unquestionably erroneous. See id. Moreover, even if New York Life promised a degree of



                                                   16
protection beyond that contained in Miller’s written contract, such a promise relates entirely to rights

of the parties which are already defined by a contract in force between them and is therefore not

actionable as a negligent misrepresentation. See id. To hold otherwise would allow Miller to

convert a clear contract-interpretation dispute into a negligent-misrepresentation claim. Cf. D.S.A.,

Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 664 (Tex. 1998). Moreover, none of New York

Life’s alleged statements regarding “protection” are statements of existing fact. They all relate to

promises regarding future conduct only.

               There are a few other representations that Carter allegedly made to Miller regarding

the value of Almanza’s book of business. Miller testified that Carter told him that the possibility of

succeeding Almanza was “a huge opportunity,” and that Miller “could make at least a hundred

thousand” dollars on the Almanza book of business.16 These are undoubtedly not statements of

existing fact, and are therefore not actionable in negligent misrepresentation. Key, 8 S.W.3d at 709;

Allied Vista, Inc., 987 S.W.2d at 141; Sneed, 938 S.W.2d at 185; Airborne Freight, 847 S.W.2d at

294-95. Miller comes close to conceding as much in his brief. In responding to New York Life’s

argument regarding such statements, Miller states only that “[t]he Managing Partner’s statements

concerning potential future earning are not the only possible allegations of misrepresentations. The

record is replete with descriptions of New York Life’s representations as to how it would protect

Miller’s book of business, or any agent[’s] book of business.” We therefore sustain New York Life’s




       16
           Coincidentally, the jury awarded Miller $100,000 in damages for New York Life’s
negligent misrepresentation.

                                                  17
second issue, reverse the judgment of the trial court finding New York Life liable for making a

negligent misrepresentation to Miller, and render judgment that Miller take nothing on this claim.


Coffey’s Tortious Interference

               We now turn to Coffey’s claim that there is no evidence or insufficient evidence that

he tortiously interfered with Miller’s contract with New York Life. To sustain a claim of tortious

interference, Miller was required to prove four elements: (1) that a contract subject to interference

exists; (2) that the alleged act of interference was willful and intentional; (3) that the willful and

intentional act proximately caused damage; and (4) that actual damage or loss occurred. See ACS

Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

               At trial, Miller arguably introduced more than a scintilla of evidence that Coffey did

not fully comply with the rules of conduct for client contact; however, he produced no evidence that

Coffey’s behavior amounted to willful interference with Miller’s agreements with New York Life.

Under its agent’s contract with Miller, New York Life was obligated to resolve this commission

dispute in its business judgment, an obligation which New York Life fulfilled. Ordinarily, inducing

a contract obligor to do what it has a right to do is not actionable interference. Id. We hold that, in

these circumstances, because New York Life did not breach its agreement with Miller, Coffey is not

liable for tortious interference with those agreements. We therefore sustain Coffey’s first issue,

reverse the trial court’s judgment that Coffey tortiously interfered with Miller’s contract, and render

judgment that Miller take nothing on his claim against Coffey.17


       17
          Because the jury’s award of exemplary damages was predicated on its finding of tortious
interference, Miller is not entitled to recover that award.

                                                  18
                                          CONCLUSION

               The record contains no evidence that New York Life breached any contract it had with

Miller. New York Life did precisely what it was obligated to do by resolving the dispute between

Miller and Coffey. Because New York Life did not breach its contracts with Miller, Coffey is not

liable for tortious interference with those contracts. Moreover, there is no evidence of any statement

made by New York Life that is actionable as a negligent misrepresentation. We therefore reverse

the judgment that the trial court entered on the jury’s verdict and render judgment that Miller take

nothing.




                                               __________________________________________

                                               Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Aboussie *

Reversed and Rendered

Filed: July 24, 2003




*
    Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
    See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

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