Stephen W. Clark v. Dillard's Inc. and the Campbell Agency ( 2015 )

ACCEPTED
05-13-01503-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/13/2015 3:31:15 PM
LISA MATZ
CLERK
IN THE TEXAS COURT OF APPEALS
FOR THE FIFTH DISTRICT AT DALLAS
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
1/13/2015 3:31:15 PM
STEPHEN W. CLARK, § LISA MATZ
Clerk
§
Appellant, §
§
v. §
§ No. 05-13-01503-CV
DILLARD’S, INC. and §
THE CAMPBELL §
AGENCY, INC., §
§
Appellees. §
On Appeal from the 44th Judicial District Court of Dallas County, Texas
Cause No. DC-11-12848
APPELLANT’S AMENDED OPENING BRIEF AND APPENDIX
KENNEDY LAW, P.C.
Stephen A. Kennedy
Texas Bar No. 11300425
1445 Ross Ave., Suite 4950
Dallas, TX 75202
Telephone: (214) 716-4343
Facsimile: (214) 593-2821
Counsel for Appellant
ORAL ARGUMENT REQUESTED
i
IDENTITY OF PARTIES AND COUNSEL
Appellant tenders this list of all parties and counsel to the trial
court’s judgment to assist this court in determining qualification and
recusal under Rule 38 of the Texas Rules of Appellate Procedure:
Appellant: Stephen W. Clark
Counsel in the Court of Appeals:
Stephen A. Kennedy
KENNEDY LAW, P.C.
1449 Ross Ave., Suite 4950
Dallas, TX 75202
Kristen E. Knauf
KENNEDY LAW, P.C.
1449 Ross Ave., Suite 4950
Dallas, TX 75202
Counsel in the Trial Court:
John B. Rizo, Sr.
LAW OFFICE OF JOHN B RIZO, SR.
3214 Samuell Blvd.
Dallas, TX 75223
Kenneth P. Kula
Kennedy Clark & Williams, P.C.
1700 Pacific Ave., Suite 1280
Dallas, TX 75201
Appellant’s Amended Opening Brief and Appendix ii
Appellee: Dillard’s, Inc.
Counsel in the Trial Court and Court of Appeals:
Ophelia Camina
Susman Godfrey LLP
901 Main St., Suite 5100
Dallas, TX 75202-3775
Counsel in the Trial Court
David D. Wilson
Friday, Eldredge & Clark
400 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201-3522
Patricia A. Nolan
The Law Offices of Patricia A. Nolan
1701 N. Market Street
Suite 200, LB 42
Dallas, Texas 75202
Appellee: The Campbell Agency, Inc.
Counsel in the Court of Appeals:
Brian A. Sheguit
The Bassett Firm
Two Turtle Creek Village
3838 Oak Lawn Ave, Suite 1300
Dallas, TX 75219
Counsel in the Trial Court:
Michael J. Noordsy
The Bassett Firm
Two Turtle Creek Village
3838 Oak Lawn Ave, Suite 1300
Dallas, TX 75219
Appellant’s Amended Opening Brief and Appendix iii
J. Andrew Robertson
The Bassett Firm
Two Turtle Creek Village
3838 Oak Lawn Ave, Suite 1300
Dallas, TX 75219
Trial Court Judge:
Hon. Eric V. Moyé
14th Judicial District Court, Dallas County, Texas
Hon. Carlos Cortez
44th Judicial District Court, Dallas County, Texas
Appellant’s Amended Opening Brief and Appendix iv
TABLE OF CONTENTS
Table of Contents ...................................................................................... v
I. ISSUES PRESENTED FOR REVIEW ........................................................ 1
II. STATEMENT OF FACTS ....................................................................... 2
III. ARGUMENT ........................................................................................ 7
A. THE COURT ERRED IN DENYING CLARK’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON MISAPPROPRIATION OF LIKENESS. .............. 7
1. Standard of Review .................................................................... 7
2. Appellant Established that He was Entitled To Summary
Judgment as a matter of law.......................................................... 9
a. Defendants appropriated Clark's likeness for the value
associated with it ........................................................................... 10
b. It is undeniable that Clark can be and is identified
through the publication ................................................................ 13
c. Appellants obtained a benefit from appropriating Clark's
likeness ............................................................................................. 14
B. THE COURT ERRED IN GRANTING IN PART DILLARD’S MOTION
FOR SUMMARY JUDGMENT, DISPOSING OF SEVERAL CLAIMS AND
REMEDIES FOR DAMAGES. ..................................................................... 16
C. THE COURT ERRED IN GRANTING TCA’S MOTION FOR SUMMARY
JUDGMENT, DISMISSING IT FROM THE CASE. ........................................ 22
1. The District Court Erred By dismissing TCA on
arguments that TCA did not advance in its Disclosures. ...... 23
2. Issues Concerning Breach of Fiduciary Duty..................... 24
3. Issues Pertaining to Breach of Contract Claim ................. 27
4. Issues Pertaining to the Statute of Limitations and
Laches Affirmative Defenses ....................................................... 28
Appellant’s Amended Opening Brief and Appendix v
5. TCA Has Failed to Carry its Burden as to The Discovery
Rule. .................................................................................................. 32
D. IT WAS ABUSE OF DISCRETION TO CONSTRUCTIVELY STRIKE
APPELLANT’S EXPERT THE DAY BEFORE TRIAL. ................................... 33
1. Dillard’s First Motion to Strike Plaintiff’s Expert ............. 34
a. Plaintiff Timely Identified Dr. Sealey .................................. 35
b. No Expert Report Could Be Generated................................ 37
c. The Standard in Texas for the Admission of Expert
Opinion Evidence ........................................................................... 38
d. The Qualifications of Dr. Peter Sealy ................................... 38
2. Dillard’s Second Motion to Strike Plaintiff’s Expert ........ 40
E. THE COURT FAILED TO TAKE JUDICIAL NOTICE OF PAST
PLEADINGS. ........................................................................................... 40
1. The Campbell Agency’s Motion for Summary Judgment . 42
2. The Motion for Summary Judgment Granted in the
Henley Litigation ........................................................................... 44
F. DESPITE APPELLANT’S CLEAR PLEA FOR ANY AND ALL DAMAGES
PERMISSIBLE UNDER TEXAS LAW THE COURT REFUSED TO CONSIDER
DISGORGEMENT OF PROFITS. ................................................................ 45
G. THE COURT OVERRULED APPELLANT’S OBJECTIONS TO JURY
QUESTIONS THAT WERE INCORRECT AS A MATTER OF LAW AND WERE
INTERNALLY INCONSISTENT. ................................................................. 46
Conclusion ............................................................................................... 48
Certificate of Service ............................................................................... 50
Appellant’s Amended Opening Brief and Appendix vi
I. ISSUES PRESENTED FOR REVIEW
On July 16, 2013, the Court called this case for trial; the parties
closed the evidence on July 18, 2013; and, on July 19, 2013, the jury
returned a verdict. The Court entered a Final Judgment on August 5,
2013.1 In the Final Judgment, the Court entered judgment for
Appellant, Stephen Clark (“Appellant” or “Clark”) on his unjust
enrichment claim which resulted in an actual damages award of $4,500.2
The Court ordered that Clark take nothing on his misappropriation of
likeness claim against Dillard’s Inc. (“Dillard’s”). 3 Clark filed a Motion
for New Trial on August 30, 2013. 4 After oral argument The Motion for
New Trial was denied on October 2, 2013. 5
The issues presented for appeal fall into two categories: rulings by
the district court on summary judgment motions, which are evaluated
under a de novo standard, and rulings made on specific motions issued
prior to and during trial, which are considered under an abuse of
discretion standard.
1 Final Judgment, Appendix at 2249; 2 CR 514-516.
2 Id.
3 Id.
4 Plaintiff’s Motion for New Trial, Appendix at 2139; 2 CR 589-695.
5 Order re: Motion for New Trial, Appendix at 2247; 2 CR 729.
1
The de novo issues subject to this appeal include the trial court’s
rulings (1) denying Plaintiff’s motion for summary judgment on
misappropriation of likeness, (2) granting in part two of Dillard’s motions
for summary judgment dismissing several claims from the suit, and (3)
granting TCA’s motion for summary judgment, dismissing it from the
case.
The other issues involve (1) the district court’s decision to strike
Clark’s damages expert the day before trial because he failed to provide
an expert report, which is not required under the Texas Rules, (2) failing
to take judicial notice of three matters relevant to enhanced damages,
and (3) issuing inconsistent and incorrect jury instructions on the issue of
misappropriation of likeness.
II. STATEMENT OF FACTS
This is a case about an international model whose images were
used by a department store as the face of its men’s underwear package.
In that situation, the model’s agent communicates directly with the
model to determine whether the model is available and is willing to
accept the booking. The model is paid two fees: a “day rate” for a photo
shoot, and additional compensation for specifically enumerated usage
Appellant’s Amended Opening Brief and Appendix 2
rights, which are released to the client. The usage rights are documented
in writing. The model may use a one-page carbon paper “voucher” to
release specific rights to use his image. The voucher includes a number of
individual and specific usage rights available for selection by the model.
The usage rights that the model may select include fashion shows,
billboards, point of purchase, informal, national ad and product
packaging. In other instances, a multipage contract is used to secure the
model’s release. Examples of a voucher and multipage contract are
attached in the Appendix. 6
In addition to securing the model’s release, the client must get a
second release from the photographer, who owns the copyrights to the
photography. The photographer typically sends an invoice to the client
for the copyrights released. The invoice includes a release valid upon
payment of the invoice. An example of the second invoice is part of the
Appendix.7
In this controversy, and as explained more fully below, Clark, was
the model,8 The Campbell Agency, Inc. (“TCA”) was the agency, 9 the
6 Appendix at 1631 and 1466; 1 CR 847, 1536
7 Appendix at 1066; 1 CR 678.
8
Appendix at 142; CR Supp Vol. 3 at 43-44.
Appellant’s Amended Opening Brief and Appendix 3
client was Dillard’s 10 and the photographer was Mollie McKool
Photography, Inc. (“McKool”)11
For the better part of two decades, Clark had a successful career
that took him across the globe. 12 His livelihood depended on third parties
paying him for specific usage rights for his image to sell clothing, men’s
fragrances, and related personal accessories. 13 Within the first few years
of his career, Clark was hired to model in advertising campaigns for high
profile clients such as J. Crew, Giorgio Armani, Christian Dior, and
Chanel. 14 Additionally, he worked with some of the most respected
photographers in the world, including Patrick Demarchilier, Karl
Lagerfeld, Aldo Fallai, Victor Skrebneski, Aldo Rossi and Neil
Kirksuch. 15 Further, Clark was the face of Hanes underwear pursuant to
a multipage agreement for product packaging with Hanes. 16
TCA is a talent agency that represents models, actors and other
9 Appendix at 143; CR Supp Vol. 3 at 43-44.
10 Id.
11 Appendix at 368, 968; CR Supp Vol.2 at 52, 1 CR 580.
12 Plaintiff’s Response to The Campbell Agency’s Traditional and No-Evidence Motion
for Summary Judgment dated November 26, 2012, App. at 876; 1 CR 488.
13 Appendix at 875; 1 CR 487.
14 Id. and 1536 – 1590; 1 CR 487, RR Vol. 12 at 24-85
15 Appendix at 875; 1 CR 487.
16 Id. and Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary
Judgment, App. at 1466; 1 CR 487, 1536.
Appellant’s Amended Opening Brief and Appendix 4
artists who work in commercial print, broadcast television, and other
forms of media and advertising. 17 In 1997, Clark began using TCA as his
talent agent. 18 Approximately one year later, in September 1998,
Dillard’s, one of TCA’s clients, wanted Clark to model men’s underwear
under the product name Roundtree and Yorke. 19 Clark attended but did
not execute any written release for usage rights. During this photo
shoot, Clark modeled various styles of men’s underwear and
undershirts20 and was paid his day rate for this photo shoot. He did not
receive any additional usage fee for the resulting photographic images. 21
A couple of years after the photo shoot, Clark moved to Paris, France and
worked in, among other places, South Africa, Italy, Japan, Spain and
Germany. 22 Following his move, Clark resided outside of the U. S.
consistently until 2009 and did not visit any of Dillard’s stores during his
infrequent trips to the U. S. for photo shoots or to visit family. 23 Dillard’s
does not have any stores located outside the United States. 24
17 Deposition of Nancy Campbell, Appendix at 568; 1 CR 697 at 20.
18 Affidavit of Stephen Clark, Appendix at 143; CR Supp Vol. 3 at 43-46.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id. See also, Deposition of Stephen Clark, Appendix at 383; CR Supp Vol 2 at 67.
24 Affidavit of Mike McNiff, Appendix at 970; 1 CR 578- 580.
Appellant’s Amended Opening Brief and Appendix 5
In approximately November 2009, Appellant was informed by a
friend via Facebook that Dillard’s was using Clark’s image of the
underwear photos taken in 1998. The images appeared on packaging for
Dillard’s in-house brand of men’s underwear without Clark’s knowledge
or compensating him. 25 Because TCA was Clark’s agent at the time the
photographs were taken, Clark asked TCA to contact Dillard’s to resolve
the matter.26 Industry protocol required Dillard’s to pay Clark for usage
rights and to pay TCA for its commission. 27 TCA refused to defend
Clark’s rights adverse to Dillard’s, breaching fiduciary and/or contractual
duties and industry protocols. 28
Clark did not agree that Dillard’s or any party could use his image
for product packaging. 29 Nor did he execute any usage agreement, release
or other document with any of the parties involved in the photoshoot,
including TCA, Dillard’s or McKool. 30 Other than his day rate for
appearing for the modelling session, Clark was never paid a usage fee for
25 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47.
26 Deposition of Nancy Campbell, 72:20-73:5, App. at 438; 1 CR 710.
27 Deposition of Nancy Campbell, 76:11-25, App. at 439; 1 CR 711.
28 Appendix at 143-144; CR Supp Vol. 3 at 45-46.
29 Appendix at 413 and App. at 1640 ¶ 8; 1 CR 550; 1169.
30 Id.
Appellant’s Amended Opening Brief and Appendix 6
his images by any party. 31 The images used include Clark’s face and torso
on product packaging for men’s underwear garments. 32
III. ARGUMENT
A. THE COURT ERRED IN DENYING CLARK’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON MISAPPROPRIATION OF LIKENESS.
1. Standard of Review
An appellate court reviews a summary judgment de novo to
determine whether a party’s right to prevail is established as a matter of
law.33 Summary judgment is proper when the movant establishes that
there is no genuine issue of material fact and that the movant is entitled
to judgment as a matter of law. 34
As explained more fully below, Clark filed his Motion for Partial
Summary Judgment on May 25, 2012 on the issue of misappropriation of
his likeness. 35 In response to Clark’s Motion, Dillard’s argued that Clark
was not entitled to summary judgment because he could not establish
that the misappropriation was not incidental, there was no value
31 Id. ¶ 9; 1 CR 1169.
32 Appendix at 997-1007;1 CR 605-620.
33 Tex. Integrated Conveyor Sys. v. Innovative Conveyor Concepts, 300 S.W.3d 348,
365; See also Chappell v. Allen, 414 S.W.3d 316, Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211.
34 Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
35 Plaintiff’s Motion for Partial Summary Judgment, App. at 102; CR Supp Vol. 3 at 4.
Appellant’s Amended Opening Brief and Appendix 7
associated with his image because he is not a celebrity, and because the
public at large would not recognize him absent celebrity status or proof of
actual recognition. 36 Dillard’s arguments were misleading however,
because there was and is value associated with Clark’s image, and
neither celebrity-status nor wide-spread recognition are required under
the law. Further, Clark had alleged actual recognition.37
Dillard’s further alleged Clark consented to the use on product
packaging38 but could not produce a release evidencing this position.39
There are no documents supporting that Clark released his right of
publicity and no testimony from anyone with personal knowledge that he
ever signed a release. To further support this flawed argument, Dillard’s
misused Clark’s deposition testimony, failing to use the corrected version
of his transcript. 40 The unsigned and uncorrected transcript had several
errors which were corrected by the witness. Dillard’s quoted the
uncorrected version of the transcript, attempting to use errors in the
transcript to create a fact issue on when Clark first learned of the use of
36 Appendix at 169; CR Supp Vol. 2 at 6
37 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47.
38 Appendix at 177-178; CR Supp Vol. 2 at 14-15.
39 Trial Transcript, Vol 8, 188:1-11, App. at 93; RR 8 at 188.
40 Appendix at 174; CR Supp Vol. 2 at 11.
Appellant’s Amended Opening Brief and Appendix 8
his image. 41 Clark did not see the image in 1999 as Dillard’s claimed;
had Dillard’s quoted the deposition transcript as corrected this issue
would not have been a matter requiring consideration by the lower court
or this court of appeals. 42
Nevertheless, based on the above, the district court erred as it
relied on Dillard’s invalid arguments and, in doing so, denied Clark’s
motion. 43 Because Clark established that there is no genuine issue as to
any material fact concerning Appellees misappropriation of his likeness,
he was entitled to judgment as a matter of law.
2. Appellant Established that He was Entitled To
Summary Judgment as a matter of law
Under TEX. R. CIV. P. 166a(c), a plaintiff is entitled to
summary judgment if:
(i) the deposition transcripts, interrogatory answers, and
other discovery responses referenced or set forth in the
motion or response, and (ii) the pleadings, admissions,
affidavits, stipulations of the parties, and authenticated
or certified public records, if any, on file at the time of
the hearing, or filed thereafter and before judgment with
permission of the court, show that, except as to the
amount of damages, there is no genuine issue as to any
41 Id.
42 Clark Deposition at 136: 15-16 App. at 393 and errata sheet dated August 13, 2012,
App. at 2258 and 1357; 1 CR 532.
43 Order dated September 7, 2012, App. at 55-56; 1 CR 401.
Appellant’s Amended Opening Brief and Appendix 9
material fact and the moving party is entitled to
judgment as a matter of law on the issues expressly set
out in the motion . . . .” 44
In order to establish misappropriation of likeness, Clark must
show: “(1) that Dillard’s appropriated Clark’s . . . likeness for the value
associated with it, and not in an incidental manner or for a newsworthy
purpose; (2) Clark can be identified from the publication; and (3) there
was some advantage or benefit to Dillard’s.” 45
a. Defendants appropriated Clark's likeness for the
value associated with it
“The threshold issue to determine in analyzing this element is
whether Defendant[s] actually appropriated [Clark’s] name or
likeness.” 46 The photographs of Clark on the Infringing Packaging are
clear and Defendants do not dispute that Clark’s images are on the
Infringing Packaging. Based thereon, “the Court [must] conclude[] that
there is no genuine fact issue in dispute as to whether Defendant[s]
appropriated Plaintiff’s . . . likeness.” 47
44 TEX. R. CIV. P. 166a; See also State Farm Fire and Cas. Co. v. Vaughan, 968
S.W.2d 931, 932 (Tex. 1998); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–
49 (Tex. 1985).
45 See generally, Henley v. Dillard Department Stores, 46 F. Supp. 2d 587, 590
(citation omitted) (N.D. Tex. 1999).
46 Id. at 591.
47 Id. at 592.
Appellant’s Amended Opening Brief and Appendix 10
Dillard’s argued that Clark consented to the use of his image because he
agreed to pose for the photos and because the photographer released her
photographic copyrights in the images. 48 But Appellants have not and
cannot produce any documentation to show that Clark assigned the
rights to his image to Dillard’s or the photographer. 49 Because the
photographer did not hold Clark’s right to publicity, she could not
transfer it to Dillard’s. As for the right of publicity, Clark never
consented to the use of his image on product packaging, let alone the
ongoing use over several years. 50
“The second issue the Court must resolve is whether Defendant[s]
appropriated Plaintiff’s name or likeness for the value associated with it,
and not in an incidental manner.”51 It is disingenuous for Dillard’s to
argue that the use of Clark’s image was incidental and not for the value
associated with it.52 The record reflects that Mr. Clark was the face of
48 Dillard’s Opposition to Plaintiff’s Motion for Partial Summary Judgment dated
July 30, 2012, App. at 170; CR Supp Vol. 1 at 7
49 Trial transcript of Dean Worley, App. at 93; Affidavit of Mollie McKool, App. at
1190 ¶7 and 1192 ¶ 18-19; 1 CR 802; 804.
50 Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary
Judgment, App. at 1640 ¶8;1 CR 1169.
51 Henley, 46 F. Supp. 2d at 592.
52 Id.
Appellant’s Amended Opening Brief and Appendix 11
Chanel 53 and a favorite of Giorgio Armani. 54 He appeared as James Bond
in Bazaar’s Magazine, 55 and was the face for Hanes underwear,
appearing on Hanes’ product packaging. 56 Having a couture model
appear on product packaging, or in a national advertising campaign is
more valuable and more expensive than using a model with lesser
credentials. This is the case with Dillard’s. Using Clark’s image would
require appropriate compensation, such as the compensation paid by
Hanes for Clark’s product packaging for men’s underwear garments. By
its very nature, the “purpose of advertising is to persuade a consumer to
purchase a particular product.” 57 Thus, there is value inherently
associated with the images used on advertising. In fact, Dillard’s has
previously admitted through its Vice President of Sales Promotion that
with respect to advertising or packaging, the “chief importance” is “the
visual presentation of information.” 58 This is the very reason Dillard’s
chose these photos for its packaging and continued to use them in excess
53 Trial Transcript, Vol. 8 at 30:5-7 and 143:16-144:8, App. at 89 and 91-92; RR 8 at
30, 143-144.
54 Id. at 27:1-9, App. at 88; RR 8 at 27.
55 Id.
56 Deposition of Stephen W. Clark, July 10, 2012, at 77:13-15, App. at 379; 1 CR 518.
57 Christoff v. Nestle USA, Inc., 62 Cal. Rptr. 3d 122, 132 (Cal. Ct. App. 2007).
58 Henley, 46 F. Supp. 2d at 593.
Appellant’s Amended Opening Brief and Appendix 12
of six years. Thus, Clark’s image on the Infringing Packaging was clearly
and indisputably appropriated for the value associated with it.
b. It is undeniable that Clark can be and is identified
through the publication
The Infringing Packaging clearly displays Clark’s face. Mr. Clark is
recognizable to friends, family, other models, and agents. Contrary to the
Appellant Dillard’s misleading assertions, which were relied upon by the
trial court, there is no requirement that the misappropriated image be
widely recognizable, a household name or of celebrity status. 59 “To
establish liability, plaintiff need prove no more than that he or she is
reasonably identifiable in defendant’s use to more than a de minimus
number of persons.” 60 Because Clark’s face is plainly visible, any number
of people who know him personally or are familiar with his other
modeling work can easily recognize him. As mentioned above, Clark
discovered Dillard’s use precisely because a friend recognized him on
Roundtree & Yorke packaging and brought it to his attention. 61 But this
is not to say that Clark was only recognizable to his close friends and
59 Dillard’s Opposition to Plaintiff’s Motion for Partial Summary Judgment dated
July 30, 2012, App. at 167; CR Supp Vol 1 at 4-6.
60 Henley, 46 F. Supp. 2d at 595 (quoting McCarthy, 1 The Rights of Publicity &
Privacy § 3.2 (1998)).
61 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47.
Appellant’s Amended Opening Brief and Appendix 13
family. Clark testified at trial that he had been recognized for his work
with Chanel,62 and the advertisement for Chanel was framed and hung
in office of his agent, Nancy Campbell of the Campbell Agency. 63 Clark
has shown that he is reasonably identifiable in the image used by
Dillard’s. Consequently, there is no genuine issue as to whether Clark’s
likeness can be identified from the publication or Infringing Packaging.
c. Appellants obtained a benefit from appropriating
Clark's likeness
Dillard’s cannot legitimately claim that it did not obtain an
advantage or benefit from using Clark’s likeness, nor do they dispute it in
their Opposition to Plaintiff’s Motion for Partial Summary Judgment. 64
Dillard’s does not dispute the benefit derived from using Clark’s image,
so there is no dispute as to material facts concerning the benefit derived
by Appellants.
For more than a decade, Dillard’s attracted customers and sold
merchandise based on Clark’s image. As Judge Solis observed in a
similar case against Dillard’s for the misappropriation of another
individual’s name or likeness: “[O]ne of the primary purposes of
62 Trial Transcript, Vol. 8 at 143:16-144:8, App. at 91-92; RR 8 at 143-144.
63 Id. at Vol. 7, 177:24 – 178:5, App. at 85-86; RR 7 at 177-178.
64 Appendix at 167; CR Supp Vol 1 at 4.
Appellant’s Amended Opening Brief and Appendix 14
advertising is to motivate a decision to purchase a particular product or
service. The first step toward selling a product or service is to attract the
consumers’ attention.’” 65 But the benefit received from Dillard’s does not
even have to be monetary or financial: Clark simply needed to prove that
Appellants “derived some commercial benefit from the use of [Appellee’s]
name or likeness as opposed to deriving no commercial benefit.”66
Although Dillard’s most likely made millions of dollars in profits from the
sales of the Roundtree & Yorke underwear in the Infringing Packaging, it
need not have made a dime in order for Appellants to have derived a
benefit from the misappropriation of Clark’s image. “If a defendant
appropriates a plaintiff’s name or likeness for his own commercial
advantage, he necessarily derives a benefit from its use.” 67 The court in
the other Dillard’s misappropriation case went on to explain that “[t]he
plaintiff in a right to publicity action is not required to show that the
defendant made money off the commercial use of the name or likeness.” 68
Rule 166a clearly states:
65 Henley, 46 F. Supp. 2d at 594 (quoting Newcombe v. Adolf Coors Co., 157 F.3d 686,
693 (9th Cir.1998)).
66 Id. at 596 (citing Restatement (Second) of Torts § 652C cmt. d).
67 Id.
68 Id.
Appellant’s Amended Opening Brief and Appendix 15
The judgment sought shall be rendered forthwith if (i)
the deposition transcripts, interrogatory answers, and
other discovery responses referenced or set forth in the
motion or response, and (ii) the pleadings, admissions,
affidavits, stipulations of the parties, and authenticated
or certified public records, if any, . . . show that, except
as to the amount of damages, there is no genuine issue
as to any material fact and the moving party is entitled
to judgment as a matter of law on the issues expressly
set out in the motion . . . .” 69
It is undisputed that Dillard’s obtained a long-term benefit from its
misappropriation of Clark’s image. As stated above, there were no
material issues of fact regarding Dillard’s misappropriation of Clark’s
likeness. The trial court erred when it relied on Dillard’s misleading and
invalid arguments and denied Appellant’s Motion for Partial Summary
Judgment as to Defendant’s Misappropriation of Likeness. Therefore,
this Court should reverse the lower court’s ruling and grant judgment in
favor of Appellant as a matter of law.
B. THE COURT ERRED IN GRANTING IN PART DILLARD’S MOTION
FOR SUMMARY JUDGMENT, DISPOSING OF SEVERAL CLAIMS AND
REMEDIES FOR DAMAGES.
In its December 27, 2012 Order, the trial court created a triad of
reversible errors by granting in part Dillard’s Motion for Summary
Judgment on the issues of injunctive relief, unfair business practices, and
69 TEX. R. CIV. P. 166a(c) (emphasis added).
Appellant’s Amended Opening Brief and Appendix 16
declaratory relief. 70 Like this Court’s review of the trial court’s denial of
Plaintiff’s Motion for Partial Summary Judgment, the rulings of the trial
court on Dillard’s Motions for Partial Summary Judgment are evaluated
under a de novo standard of review.71
First, the trial court erred by ruling in favor of Dillard’s on its
Traditional and No Evidence Motions for Summary Judgment with
respect to Clark’s request for injunctive relief. Dillard’s argued that it
does not intend to use Clark’s image on product packaging in the future.
Yet this argument fails to account for the fact that a request for a
permanent injunction should be decided only after a plaintiff has proven
a defendant’s liability. Dillard’s statement is neither evidence nor an
enforceable promise that Dillard’s will not, in fact, repeat their unlawful
conduct. But by choosing to adopt Dillard’s unsupported statement of
intent, the trial court robbed Clark of his right to seek injunctive relief
after a trier of fact decides the liability issues.
Second, the trial court erred by ruling in favor of Dillard’s on
Clark’s claims of unfair business practices. In Plaintiff’s Second Amended
70 Order on Dillard’s Traditional and No Evidence Motions for Summary Judgment
filed November 27, 2012 and November 30, 2012 (dated December 27, 2012), App. at
61-62; 1 CR 1121.
71 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003);
Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
Appellant’s Amended Opening Brief and Appendix 17
Petition, Clark pleaded in the alternative to his claim of
misappropriation of likeness that Defendants’ conduct constituted an
unfair business practice. The theory is that unless there was an
agreement between Clark and the Defendants allowing for the use of
Clark’s image on packaging – which there was not – then Defendants
acquired the right to use Clark’s images through some means other than
Clark’s express consent. These alternative means constitute an unfair
business practice.
There is no evidence to support the existence of a contract –
written, oral, or otherwise – between Clark and Defendants. What the
evidence does show, however, is that Dillard’s was able to use the
Infringing Packaging for 10 years without having to pay for the use of
Clark’s image neither initially, nor after a term of years as a renewal, nor
as any kind of increase over time as is typical in the industry. 72 Clark
suffered damages not only from these lost wages, but also by losing the
opportunity for publicity and exposure that otherwise could have resulted
from an advertising campaign lasting over 10 years.
72See Affidavit of Stephen W. Clark dated Sept. 14, 2012, Ex. 9 to Plaintiff’s Response
to Dillard’s November 30, 2012 Motion for Summary Judgment, App. at 1886 ¶14.
1 CR 486-490; 489.
Appellant’s Amended Opening Brief and Appendix 18
Dillard’s urged the trial court to hold that it had the rights to use
Clark’s image in any manner by virtue of timely paying its invoice to
McKool. But McKool Photography could not transfer rights that it never
possessed, and Clark never gave any publicity rights to McKool to be
transferred. 73 Therefore, even if this Court agrees with Dillard’s
argument, it must also acknowledge that Clark’s rights were transferred
without his knowledge or consent. This unauthorized transfer of Clark’s
rights deprived him of control of his image for business purposes,
prevented his benefitting from the use of that image and also from
earning fees to which he was otherwise rightfully entitled.
Finally, the trial court erred by granting Dillard’s summary
judgment on Clark’s request for declaratory relief. Clark is entitled to
declaratory relief under the Texas Uniform Declaratory Judgment Act
(“UDJA”). A person interested under a written contract, or whose rights,
status, or other legal relations are affected by a contract may have any
question of construction or validity arising under said contract
determined and obtain a declaration of rights, status, or other legal
73Dillard’s Response to Plaintiff’s Motion for Partial Summary Judgment, dated July
30, 2012, exhibit 5, App. at 205-206 ¶10; 1 CR 803.
Appellant’s Amended Opening Brief and Appendix 19
relations thereunder. 74 When declaratory relief is sought, all persons
who have or claim any interest that would be affected by the declaration
must be made parties. 75 Dillard’s asserts that an invoice between
Dillard’s and McKool reflect an agreement between Clark and Dillard’s
granting Dillard’s unlimited use of Clark’s image. But Clark never
entered into an agreement with any of the parties transferring his right
of publicity. Clark never had an agreement with Dillard’s, and McKool
acknowledges that there was never any agreement between it and
Clark. 76 Clark is an interested party and his legal rights are affected by
how these instruments are interpreted. Therefore, Clark is entitled to
have the usage rights determined by the Court. The UDJA permits
Clark’s request for a declaratory judgment.
A declaratory judgment is appropriate only if a justiciable
controversy exists as to the rights and status of the parties and the
controversy will be resolved by the declaration sought. A justiciable
controversy exists when there is a real and substantial controversy
involving a genuine conflict of tangible interests and not merely a
74 UDJA §37.004(a).
75 Id. at §37.006(a).
76 Affidavit of Mollie McKool, App. at 1190 ¶7 and 1192 ¶18; 1 CR 802; 804.
Appellant’s Amended Opening Brief and Appendix 20
theoretical dispute. 77 Here there is a justiciable controversy because
there is a dispute over whether a contract ever existed and, if a contract
existed, what rights were transferred thereunder. Clark never granted
his right of publicity or the unlimited right to use his image to any of the
Defendants.78 McKool did not have any rights in Clark’s image.79
Instead, McKool only possessed the copyright to the photographs
themselves (i.e. a right to the elements attributed to the photographer’s
artistic ability – lighting, angle, shadow, background, etc.). While it is
true that the invoice between McKool and Dillard’s transferred McKool’s
copyrights in the images, it hardly follows that the invoice transferred
any of Clark’s rights as the model. 80 As previously discussed with regard
to Clark’s claim of unfair business practices, there is no evidence to
support the existence of a contract – written, oral, or otherwise – between
McKool and Clark. There is no language on either the invoice between
Dillard’s and McKool or any voucher received by Clark acknowledging
that he showed up for the photo shoot that transfers Clark’s right of
77 Bonham State Bank v. Raymond G. Beadle, 907 S.W.2d 465 (Tex. 1995).
78 Affidavit of Stephen W. Clark, Ex. 20, ¶5 to Plaintiff’s Response to Dillard’s
November 30, 2012 Motion for Summary Judgment, App. at 1888; 1 CR 1169.
79 Affidavit of Mollie McKool, dated Sept. 13, 2012, Ex. 5, ¶7 to Plaintiff’s Response to
Dillard’s November 30, 2012 Motion for Summary Judgment, App. at 1190; 1 CR 802.
80 Id.
Appellant’s Amended Opening Brief and Appendix 21
publicity. Consequently, these instruments do not transfer usage rights
or the right to reproduce Clark’s image, and the declaratory relief
requested by Dillard’s and granted by the trial court is erroneous.
C. THE COURT ERRED IN GRANTING TCA’S MOTION FOR
SUMMARY JUDGMENT, DISMISSING IT FROM THE CASE.
On October 26, 2012, TCA filed a motion for summary judgment on
all claims pending against it.81 In its Traditional and No-Evidence
Motion for Summary Judgment, The Campbell Agency sought to dismiss
all claims against it by boldly asserting that it had neither a fiduciary
duty nor any sort of contractual obligation to Clark. Yet The Campbell
Agency holds itself out as an “Agency” and is in the business of
representing models and actors through its network of “agents.” 82 TCA
argued in the alternative that if it did owe any fiduciary or contractual
duties to Clark, then Clark’s claims were barred by either laches or the
81 Appendix at 270. Because the Court had previously dismissed certain claims in
response to Dillard’s motion, TCA and Clark agreed that the Court’s rulings would
apply to TCA, without waiving any arguments for appellate purposes;
CR Supp Vol.2 at 4.
82 Campbell Dep. 20:21-24, App. at 568; 1 CR 697.
Appellant’s Amended Opening Brief and Appendix 22
applicable statute of limitations. 83 The trial court granted TCA’s Motion
for Summary Judgment, and dismissed Clark’s claims against TCA. 84
1. The District Court Erred By dismissing TCA on
arguments that TCA did not advance in its Disclosures.
In response to Plaintiff’s Request for Disclosures, TCA was required
to “state the legal theories and, in general, the factual bases of [its]
claims or defenses.” Tex. R. Civ. P. 194.2(c). It was also required to
identify “persons having knowledge of relevant facts” as well as experts.
Id. at 194.2(e). None of the legal arguments or facts relied upon by TCA
in its Motion were ever disclosed in any of its Disclosures. 85 Likewise, to
support its Motion, TCA relies on the testimony of fact and expert
witnesses whose identities were never mentioned in Disclosures.86
Because TCA wholly and completely failed to disclose the facts, witnesses
and legal theories forming the basis for the motion for summary
83 Appendix at 270; CR Supp Vol. 2 at 20-22.
84 See Orders Granting Traditional and No Evidence Motions for Summary
Judgment, App. at 58-59; 1 CR 890-891.
85 See Appendix at 511-528 (#10, The Campbell Agency’s Response to Clark’s Request
for Disclosure which fails to disclose any of the legal theories of factual bases
advanced in TCA’s Motion), #11, The Campbell Agency’s First Amended Response to
Clark’s Request for Disclosure (also fails to disclose any of the legal theories or
factual bases advanced in TCA’s Motion) and #12, The Campbell Agency’s Second
Amended Response to Clark’s Request for Disclosure (failing again to disclose any of
the legal theories or factual bases advanced in TCA’s Motion).
CR Supp Vol 2 at 84,88,90.
86 Id.
Appellant’s Amended Opening Brief and Appendix 23
judgment, the court could not rely upon those witnesses, facts or legal
theories.87 The trial court erred as a matter of law by granting the
motion, and this court should reverse that decision.
2. Issues Concerning Breach of Fiduciary Duty
TCA sought dismissal of Appellant’s breach of fiduciary duty claim,
arguing that the existence of any fiduciary duty is purely a question of
law, not one of fact. In its argument, TCA failed to cite Texas Supreme
Court authority holding that the existence of fiduciary duties involving
fair dealing, trust and confidence are fact issues. 88 TCA is simply wrong
on the law.
Disputed facts exist as to what TCA’s responsibilities were at the
time that it acted as Appellant’s agent, and what responsibilities carried
forward after the agency relationship was terminated. “A talent agent,
or booking agent, is a person who finds jobs for actors, authors, film
directors, musicians, models, producers, professional athletes, writers
87 See e.g., Hernandez v. Mid-Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.--San Antonio
2005, no pet.); Chasewood Oaks Condominiums Homeowners Ass'n v. Amatek
Holdings, Inc., 977 S.W.2d 840, 845 (Tex. App.--Fort Worth 1998, pet. denied).
88 Crim Truck & Tractor Co. v. Navistar International Transportation Corp., 823
S.W.2d 591, 594 (Tex. 1992).
Appellant’s Amended Opening Brief and Appendix 24
and other people in various entertainment businesses. An agent also
defends, supports and promotes the interest of his/her clients.” 89
Issues of fact exist as to the scope of TCA’s responsibilities to
Appellant. Was TCA required to “defend, support and promote”
Appellant at any time? What were the on-going responsibilities of TCA
for the TCA-generated bookings after Appellant changed agents? Was
there an agency agreement and, if so, what were the terms of the
agreement? What were TCA’s continuing obligations as to Appellant
with respect to any dispute with Dillard’s? Was TCA required to monitor
usage? Was it reasonable for Appellant to expect that TCA was
monitoring usage during the time of the agency relationship? Is it
reasonable that prolonged usage by Defendant Dillard’s could not have
escaped the attention of TCA? These and other questions regarding the
relationship between Appellant and TCA are issues of fact for a jury.
The answers to these questions would determine whether fiduciary
and/or contractual obligations existed between Clark and TCA.
TCA’s owner and executive admitted that industry protocols require
the booking talent agent to contact the talent with issues relating to any
89See, e.g., Business Essentials and Social Responsibilities, Tenae Wheeler, 2012.
Wheeler’s definition has been quoted word-for-word in 1,320 articles, webpages and
other publications based on a Google search of the referenced quotation.
Appellant’s Amended Opening Brief and Appendix 25
job booked by the talent agency. Campbell admitted that “[i]t is proper
protocol in our business if an agency books a job and, if there's an issue,
then that agency should be the one to contact the client.” 90 The “client”
in this context, Campbell is the agent, Clark is the talent and Dillard’s is
the client.
Through this testimony, Campbell confirms by admission that
industry protocols require an agent to contact the retail client when an
issue arises and that the obligation to do so is ongoing. Those “industry
protocol” obligations support the position that TCA had fiduciary duties
of fair dealing, confidence and trust which are fact issues to be
determined by a jury pursuant to the Texas Supreme Court’s decision in
Crim Truck. 91
During her deposition, Campbell admitted that she did nothing to
contact the Client, Dillard’s, when she learned of the problem. 92 She also
admitted that she took no action to confirm that Clark’s rights were
preserved. “I wasn’t looking for Stephen’s image on anything.” 93
90 Campbell Dep. 76:14-17, App. at 624; 1 CR 711.
91 823 S.W.2d at 594 (Tex. 1992).
92 Campbell Dep. 73:17-18, App. at 621; 1 CR 711.
93 Campbell Dep. 250:11-12, App. at 798; 1 CR 755.
Appellant’s Amended Opening Brief and Appendix 26
TCA admitted that it took no action during the 1998-2000 time
frame to monitor usage, which Appellant contends was in violation of its
fiduciary duties and in breach of contract. These admissions prove that
TCA did not satisfy its obligations and, at the very least, resulted in fact
issues, requiring denial of the motion for summary judgment. In her
deposition testimony, Campbell conceded that, in response to Appellant’s
request that TCA defend his publicity rights consistent with such
industry protocol, “I told him no.” 94
3. Issues Pertaining to Breach of Contract Claim
As noted above, TCA relied on legal arguments, fact witnesses and
facts that were not disclosed in its responses to requests for disclosures.
To avoid duplication, Appellant will not repeat that argument here.
There are facts in dispute that preclude summary judgment on the
contract claims. In her deposition, Campbell admitted that TCA was
responsible for approaching Dillard’s when an issue arose regarding the
use of Appellant’s image because TCA secured the representation.
Campbell admitted that “[i]t is proper protocol in our business if an
agency books a job and, if there's an issue, then that agency should be the
94 Campbell Dep.73:17-18, App. at 621; 1 CR 711.
Appellant’s Amended Opening Brief and Appendix 27
one to contact the client.” 95 Through this testimony, Campbell confirms
that the contractual obligations of an agent to defend a model’s right of
publicity are continuous in nature for the jobs booked by that agency.
Campbell further admitted that Appellant contacted TCA,
identified the issue with Dillard’s and requested that TCA resolve the
issue. Specifically, Campbell admitted that “he asked if I would call
Dillard's” 96 on his behalf, as required under the “industry protocol.” In
her deposition testimony, Campbell conceded that, in response to
Appellant’s request that TCA defend his publicity rights consistent with
such industry protocol, “I told him no.” 97 By refusing to defend
Appellant’s right of publicity for the job at issue, Appellant contends that
TCA breached contractual obligations and/or fiduciary duties. Thus,
TCA’s Motion should be denied based on the testimony of its President,
Nancy Campbell.
4. Issues Pertaining to the Statute of Limitations and
Laches Affirmative Defenses
TCA also sought summary judgment on its affirmative defenses of
statute of limitations and laches. To prevail on either defense, TCA is
95 Campbell Dep. 76:14-17, App. at 624; 1 CR 711.
96 Campbell Dep. 73:17-18, App. at 621; 1 CR 711.
97 Id.
Appellant’s Amended Opening Brief and Appendix 28
first required to state the accrual date for each cause of action, which it
does not do. Without an accrual date, TCA cannot argue that any
limitations or laches period expired. TCA has the burden to prove (1)
when the action accrued; (2) when Clark knew that he had an action to
assert; and (3) that the discovery rule does not apply.
A cause of action accrues when “a wrongful act causes some legal
injury, even if the fact of injury is not discovered until later, and even if
all resulting damages have not yet occurred.” 98 The breach of fiduciary
duty and breach of contract causes of action are inextricably tied to
Dillard’s use of Appellant’s images for product packaging. Had Dillard’s
never used the images for product packaging, there would be no breach of
fiduciary duty by TCA. Likewise, had Dillard’s never used the product
packaging, there would be no breach of contract.
This leads to the question of when Dillard’s first started using the
images for product packaging. Dillard’s has been unable to establish a
reliable date of first use. The only evidence that Dillard’s has produced
regarding its first use is the affidavit testimony of Mike McNiff.
However, McNiff’s lack of personal knowledge became obvious during his
98Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Burke v. Insurance Auto
AuctionsCorp., 169 S.W.3d 771, 776 (Tex. App. -- Dallas 2005, pet. denied).
Appellant’s Amended Opening Brief and Appendix 29
deposition when he testified that the images in question were used for
product packaging “around 1991,” seven years before the photography
shoot occurred. 99 After getting a hint from his lawyer that his deposition
answer was wrong (over the objection of counsel for Appellant), Mr.
McNiff changed his testimony to say that he “believed it was around
2001.” 100 Immediately following this ambiguous statement, the witness
finally admitted, “I don't know exactly when the merchandise hit the
floor, no, sir.” 101
The witness also admitted that paragraph 2 of his Affidavit is false.
In this part of his Affidavit, McNiff claimed to have supervisory
responsibility over advertising agencies, modeling agencies and photo
studios. When asked in his deposition if he in fact had that supervisory
authority, he admitted that he did not. Ex. 1at 38-39. When asked who
did have supervisory responsibility, McNiff testified it was Christine
Rowell, another Dillard’s employee. Ex. 1 at 40-41.
Damages are an element that must be proved as part of a cause of
99 McNiff Dep. See Plaintiff’s Response to Dillard’s Motion for Summary Judgment
dated November 27, 2014 Ex. 1 pg 28, App. at 1249;1 CR 593.
100 Id. at 1251; 1 CR 594.
101 Id. at 1252;1 CR 594.
Appellant’s Amended Opening Brief and Appendix 30
action for breach of fiduciary duty. 102 Similarly, damages are required to
prove breach of contract. 103 The key issue, therefore, is the date when
Appellant first could have suffered damages and asserted a valid claim
for breach of fiduciary duty. The earliest time that TCA can assert that
this cause of action accrued is the date of first use of the images on
product packaging by Dillard’s because, until that time, Appellant had
suffered no damages. As indicated above, neither TCA nor Dillard’s can
say when the images were first used. Therefore, TCA cannot carry its
burden of proof in establishing the date when the cause of action accrued.
The identical argument applies for the breach of contract cause of
action. The cause of action did not accrue until Appellant suffered
damages, an essential element of the claim, which occurred only upon
first use of the images. Again, TCA cannot prove the date of first use,
and therefore, cannot prove when the cause of action accrued.
Finally, TCA admitted in its Answer to Plaintiff’s First Amended
Petition that it “does not have personal knowledge whether the photos
shown in Plaintiff’s Original Petition were even taken during the 9.16.98
shoot.” Ex.13 at p. 2. Given this admission, the question arises as to
102See Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied).
103See Stewart v. Sanmina Texas, L.P., 156 S.W.3d 198, 214 (Tex. App.-Dallas 2005,
no pet.)
Appellant’s Amended Opening Brief and Appendix 31
whether any aspect of TCA’s Motion can be granted until a fact-finder
determines whether the photos used by Dillard’s were in fact from the
9.16.98 photography session.
5. TCA Has Failed to Carry its Burden as to The
Discovery Rule.
In its motion, TCA took the position that the discovery rule does not
apply to Appellant’s causes of action. The burden is on TCA to show that
the discovery rule is unavailable to Appellant. 104 To do so the Defendant
must (1) conclusively prove the date the cause of action accrued
and (2) negate the applicability of the discovery rule if it applies
and (3) has been pleaded or otherwise raised. 105 TCA did not plead
the defenses. 106 Even if it had pleaded those defenses, TCA cannot and
does not provide evidence for when each cause of action accrued. As
noted above, none of the Defendants could testify as to when Dillard’s
first started using the photos on product packaging.
To negate the applicability of the discovery rule, a defendant must
prove, as a matter of law, that there is no genuine issue of material fact
about when the plaintiff discovered or, in the exercise of reasonable
104 Peggy Woods, C.R.N.A., V. William M. Mercer, Inc., Et Al. 769 S.W.2d 515, 518.
105 Id.
106 Appendix at 530; 1 CR 457-464.
Appellant’s Amended Opening Brief and Appendix 32
diligence, should have discovered the nature of his injury. 107 Again, none
of the Appellees can say when Dillard’s first started using the product
packaging.
As noted above, TCA has failed to plea or prove the date the cause
of action accrued. 108 It cannot carry its burden of proof that the discovery
rule does not apply. For this reason the Motion should have been denied.
D. IT WAS ABUSE OF DISCRETION TO CONSTRUCTIVELY STRIKE
APPELLANT’S EXPERT THE DAY BEFORE TRIAL.
On July 16, 2013 the trial court denied Defendant’s Motion to
Strike Expert filed on July 12, 2013, but qualified its ruling by stating “if
Plaintiff chooses to call Peter Sealey as an expert, he shall make Mr.
Sealey’s expert report available by 9:30 a.m. on July 16, 2013.” 109 The
trial court erred by constructively striking Plaintiff’s expert the day
107 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 223; KPMG Peat
Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999);
108 The discovery rule applies when the publication is either fraudulently concealed or
not easily discoverable. S.V. v R.V., 933 S.W.2d 1, 6; Pedro Nosnik et al. v. Ginsberg
and Brusilow, et. al., 2000 Tex. App. LEXIS 3730, 3737. An injury need not be
absolutely impossible to discover and discovery of a particular injury is dependent not
solely on the nature of the injury but on the circumstances in which it occurred. S.V.
v. R.V. at 7. In the present case the injury occurred in a chain of department stores
located exclusively in the United States. There were no visible operations for
Appellant to discover while residing in France. Under the circumstances, the
unauthorized use of Appellant’s image was not easily discoverable. When Plaintiff did
learn of the misappropriation in 2009 he began to work with his then-current
modeling agency to resolve the issue.
109 Order Regarding Pretrial Hearing, July 16, 2013 para 4; 2 CR 418.
Appellant’s Amended Opening Brief and Appendix 33
before trial because Plaintiff’s expert was qualified and no expert report
could be drafted without Dillard’s first supplementing its disclosures.
1. Dillard’s First Motion to Strike Plaintiff’s Expert
On July 15, 2012, Plaintiff timely designated two damages experts
Lloyd D. Robinson and Dr. Peter Sealey. After timely designating both
experts Plaintiff chose not to call Mr. Lloyd Robinson for strategic
reasons. On the eve of trial, July 15, 2013, the Court, in response to
Dillard’s Motion to Strike Plaintiff’s Expert Witness, ruled that Dr.
Sealey may only testify if he could draft and provide Dillard’s with an
expert report the next morning; a feet impossible for Dr. Sealey to meet.
Therefore, the Court erred because its actions constituted a
constructively strike of Plaintiff’s intended damages expert, Dr. Peter
Sealey.
Defendant filed the first of two Motions to Strike Plaintiff’s Experts on
August 7, 2012. Defendant complains that Plaintiff failed to timely
designate its expert and to provide the general substance of Dr. Sealey’s
opinions, the basis of his opinions, and the foundation of his expertise.
Plaintiff, in his response, contended that his designation was timely and
adequate from the beginning. In any event, Plaintiff properly
Appellant’s Amended Opening Brief and Appendix 34
supplemented its designation/disclosures as discovery continued in this
case and months before this trial date. Defendant did not object to the
adequacy of the supplemented disclosures.
a. Plaintiff Timely Identified Dr. Sealey
First, Defendant claimed that Plaintiff did not timely designate Dr.
Sealey as a witness and he is therefore barred from testifying under
“Rule 215(5) Tex. R. Civ. P.,” 110 Rule 215.5 states:
215.5 Failure of Party or Witness to Attend to or
Serve Subpoena; Expenses.
(a) Failure of party giving notice to attend. If the
party giving the notice of the taking of an oral deposition
fails to attend and proceed therewith and another party
attends in person or by attorney pursuant to the notice,
the court may order the party giving the notice to pay
such other party the reasonable expenses incurred by
him and his attorney in attending, including reasonable
attorney fees.
(b) Failure of witness to attend. If a party gives
notice of the taking of an oral deposition of a witness and
the witness does not attend because of the fault of the
party giving the notice, if another party attends in
person or by attorney because he expects the deposition
of that witness to be taken, the court may order the
party giving the notice to pay such other party the
reasonable expenses incurred by him and his attorney in
attending, including reasonable attorney fees.
110 Defendant’s Motion to Strike, App. at 2064; 2 CR 84.
Appellant’s Amended Opening Brief and Appendix 35
Defendant did not depose Dr. Sealey nor has it served him a
subpoena, therefore this Rule is inapplicable and results in a groundless
allegation. If the Defendant meant to refer to TRCP Rule 193.6, which
superseded Rule 215.5 in 2003, Clark also prevails. Rule 193.6(a) states:
193.6 Failing to Timely Respond - Effect on Trial
(a) Exclusion of evidence and exceptions. A party
who fails to make, amend, or supplement a discovery
response in a timely manner may not introduce in
evidence the material or information that was not timely
disclosed, or offer the testimony of a witness (other
than a named party) who was not timely
identified, unless the court finds that:
(1) there was good cause for the failure to timely
make, amend, or supplement the discovery
response; or
(2) the failure to timely make, amend, or
supplement the discovery response will not
unfairly surprise or unfairly prejudice the other
parties.
If this in fact is the rule to which Defendant intended to cite,
Defendant overlooked the fact that Plaintiff amended his disclosures on
July 15, 2012, prior to the close of discovery and prior to the date when
Attorney Camina made an appearance in this case. The disclosures were
sent by certified mail to Patricia Nolan, the attorney representing
Appellant’s Amended Opening Brief and Appendix 36
Dillard’s at the time. The certified mail receipt is attached hereto in the
Appendix,111 proving that Dillard’s counsel received the documents.
The disclosures sent on July 15, 2012, and received by Attorney
Nolan on July 22, 2012, disclose Peter Sealey as an expert and disclose
Mr. Sealey’s damages contentions. In addition on, March 20, 2013
Plaintiff supplemented his disclosures further setting forth Mr. Sealy’s
damages theory. Additional information was also provided regarding the
punitive damages theory in March, 2013. That additional information is
based on Mr. Sealey’s review of discovery that had been produced by
Dillard’s after September 10, 2012.
b. No Expert Report Could Be Generated
In his response to disclosures, Clark offered to provide an expert
report from Dr. Sealy upon the satisfaction of one condition: Dillard’s
fully answer discovery concerning sales of each of the products bearing
Clark’s face and torso. 112 Dillard’s was previously ordered to produce
financials on September 5, 2012.113 Dillard’s provided some, but not all, of
the documents ordered, claiming it could not locate all of the documents.
111 Appendix at 2154; 2 CR 604.
112 Trial transcript Vol. 6, 54:7-55:10, App. at 67-68.
113 Appendix at 2253; 1 CR 397-400.
Appellant’s Amended Opening Brief and Appendix 37
Because Dillard’s either could not, or would not, produce the needed
discovery, the statement in the disclosures was nullified.
c. The Standard in Texas for the Admission of
Expert Opinion Evidence
Rule 702 of the Texas Rules of Evidence permits a witness qualified
by knowledge, skill, experience, training, or education to testify on
scientific, technical, or other specialized subjects if the testimony would
assist the trier of fact in understanding the evidence or determining a
fact issue. 114 A two-part test governs whether expert test only is
admissible: 1) is the expert qualified, and 2) is the testimony relevant
and based on a reliable foundation? 115
d. The Qualifications of Dr. Peter Sealy
As evidenced by his Curriculum Vitae, 116 and provided to Defendant
in Plaintiff’s Supplemental Disclosures served on Defendant on July 15,
2012, Dr. Peter Sealey, is qualified in knowledge, skill experience and
training to provide his opinions regarding Plaintiff’s damages.
Dr. Sealey is the former Senior Vice President of Global Marketing
at The Coca-Cola Company where he launched Diet Coke and also served
114 Tex. R. Civ. Evid 702; Gammill v Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
718 (Tex. 1998).
115 E.I du Pont de Nemours v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).
116 Appendix at 2156; 2 CR 606-610.
Appellant’s Amended Opening Brief and Appendix 38
as President of Marketing at Columbia Pictures. He is the former co-
director of the Center of Marketing and Technology at the Haas School of
Business, U.C. Berkeley, has been a professor at the Stanford Graduate
School of Business and currently teaches entertainment marketing at the
Drucker/Ito Center Graduate School of Management at Claremont
University. He consults to numerous global corporations and Silicon
Valley start-ups such as VeriSign, General Motors, Coke, Sony,
Anheuser-Busch, Visa U.S.A., UPS, ImproveNet, Johnson & Johnson,
Hewlett-Packard, Kodak, and Nokia. He currently serves, or has served,
on the Boards of Directors of cFares, Inc.,4Info, IMMI, inc., Reply!,
StrongMail, Round Table Pizza, L90, Inc., MediaPlex, Inc., T/R Systems,
United Parcel Service Capital, Learning Framework and Kinzan.com. He
serves, or has served, on the Boards of Advisors of Intent MediaWorks,
Facebook, Cognitive Labs, Rearden Commerce, Veoh, HomeGain.com,
Space.com, Learning Framework, Zinio & eVoice.com.
Dr. Sealey received a Bachelor of Science degree in Business from
the University of Florida, a Master of Industrial Administration degree
from Yale University, and Master of Arts in Management and Doctor of
Philosophy degrees in Management and Information Technology from the
Appellant’s Amended Opening Brief and Appendix 39
Peter F. Drucker Graduate Management Center at The Claremont
Graduate School.
2. Dillard’s Second Motion to Strike Plaintiff’s Expert
Dillard’s Second Motion to Strike Plaintiff’s Expert was filed on
Friday, July 12, 2013 at 3:32pm, knowing that trial was to begin the
following Monday morning. In its second Motion to Strike Plaintiff’s
Expert, Dillard’s, for the first time, argued that Dr. Sealey should have
provided Defendant with an expert report despite the fact that, as
repeatedly mentioned in Plaintiff’s initial and amended disclosures, Dr.
Sealey could not create an expert report without Dillard’s first providing
certain outstanding discovery materials. 117 Furthermore, Dillard’s did not
ask for Dr. Sealey’s expert report. Under TRCP 194.2(f)(4)(A) a party can
ask for a report from the other party’s retained testifying expert in a
request for disclosures. Dillard’s never served on Plaintiff such a request,
instead it waited until the eve of discovery to demand a report. The
court’s ruling for Dillard’s was erroneous because Dr. Sealey could not
have drafted a report without Dillard’s first supplementing its discovery.
E. THE COURT FAILED TO TAKE JUDICIAL NOTICE OF PAST
PLEADINGS.
117 Appendix at 2162; 2 CR 84.
Appellant’s Amended Opening Brief and Appendix 40
A Texas Court “shall take judicial notice [of facts] if requested by a
party and supplied with the necessary information.” 118 Therfore, it is
mandatory for a Court to take judicial notice of another court's records if
a party provides proof of the records. 119 Failure to take Judicial Notice is
reviewed for abuse of discretion, reviewing the entire record. 120
While this case was in the trial court, Appellant provided the Court
with copies of the following documents: (1) the Order granting The
Campbell Agency’s Motion for Summary Judgment; 121 (2) the case law
decision detailing the summary judgment granted in the Henley v.
Dillard Department Stores case122 (“Henley Litigation”); and (3) the
Court’s finding of Mollie McKool Photography, Inc. as a responsible third
party in this case. 123 Incredibly, the trial court did not take judicial
notice of these documents. The law plainly states “the Court shall”; there
is no room for discretion or argument, despite Defendant’s claim that the
118 TEX. R. EVID. 201(d) (emphasis added).
119 Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); MCI Sales
& Serv. Inc. v. Hinton, 329 S.W.3d 475, 497 n.21 (Tex. 2010).
120 In re A.R., 236 S.W.3d 460, 477 (Tex.App.-Dallas 2007); Daugherty v. Southern
Pac. Transp. 772 S.W.2d 81, 83 (1989).
121 Appendix at 2054; 2 CR 448.
122 Appendix at 2039; 2 CR 434.
123 Appendix at 2059; 2 CR 452.
Appellant’s Amended Opening Brief and Appendix 41
request did not comport with Texas Rules of Evidence 201. 124 By ignoring
the plain meaning of the word “shall,” the trial court has once again
erred.
1. The Campbell Agency’s Motion for Summary
Judgment
The Court erred in not ruling on Plaintiff’s Request for Judicial
Notice in the Bifurcated Proceedings Regarding Court’s Entry of
Summary Judgment for The Campbell Agency because, Appellant
requested that the Court take Notice and the Court was “supplied with
the necessary information.” Tex. R. Evid. 201(d). On July 17, 2013,
Appellant filed his Request for Judicial Notice in the Bifurcated
Proceedings Regarding Court’s Entry of Summary Judgment for The
Campbell Agency.125 Attached to this Request, as Exhibit 1, Appellant
provided the Court with a copy of the order granting The Campbell
Agency’s Motion for Summary Judgment and therefore requested that
the Court take judicial notice of said judgment. Despite Appellant’s
meeting the requirements for mandatory judicial notice, the Court did
not take judicial notice.
124Trial Transcript Vol. 6, 20:12-13 dated July 15, 2013, App. at 65.
125Plaintiff’s Request for Judicial Notice in Bifurcated Proceedings, App. at 2054;
2 CR 448.
Appellant’s Amended Opening Brief and Appendix 42
The consequence of this failure was that the jury heard testimony
casting blame on TCA for failure to monitor Clark’s works and enforce
proper usage; however, they were not made aware why TCA was not a
participating in the case, or that they had been granted a summary
judgment. This allowed the jury to consider mitigating circumstances
when assessing fault/damages against Dillard’s and also did not give
them the full picture of TCA’s involvement other than as an expert
witness. Consequently, testimony given by an interested party was given
inappropriate weight, Appellant was hampered in attempts to impeach
TCA, and the award against Dillard’s was unreasonably low.
Appellant’s Amended Opening Brief and Appendix 43
2. The Motion for Summary Judgment Granted in the
Henley Litigation
The Court erred in not ruling on Plaintiff’s Request for Judicial
Notice in the Bifurcated Proceedings Regarding Entry of Summary
Judgment Against Dillard’s in the Henley Litigation because Appellant
requested that the Court take Notice and the Court was “supplied with
the necessary information.” 126 On July 17, 2013, Appellant filed the
aforementioned request and attached thereto, as Exhibit 1, a copy of the
Henley Court’s memorandum and opinion. 127 Despite Appellant meeting
all the requirements for judicial notice, the Court failed to take judicial
notice of the Henley case.
Dillard’s history of misappropriating likeness was pivotal to the
question of enhanced damages. Had the Court judicially noticed the
prior misappropriation case and it then been admitted for the jury’s
consideration, the jury would have had the opportunity to properly
evaluate the question of Dillard’s malice, which they were asked to
determine. The jury was asked whether Dillard’s acted with malice.
Because they had no knowledge of Dillard’s prior misappropriation, or
126Tex. R. Evid. 201(d).
127Plaintiff’s Request for Judicial Notice in Bifurcated Proceedings, App. at 2054;
2 CR 434.
Appellant’s Amended Opening Brief and Appendix 44
the fact that the prior case put Dillard’s on notice regarding their shoddy
and illegal advertising practices, of course they found no malice. Had
they been aware of the fact that Dillard’s had knowledge of what
constituted “misappropriation of likeness,” the jury very likely would not
have answered Question 4 finding the misappropriation excused by
mistake.
F. DESPITE APPELLANT’S CLEAR PLEA FOR ANY AND ALL
DAMAGES PERMISSIBLE UNDER TEXAS LAW THE COURT
REFUSED TO CONSIDER DISGORGEMENT OF PROFITS.
The trial court erred in granting Dillard’s Bench Brief Regarding
Disgorgement of Profits filed on July 12, 2013, 128 because Appellant
properly requested disgorgement of profits in each of his three Petitions.
On October 15, 2011, Clark filed his Original Complaint where he
pleaded for “[a] judgment awarding actual and punitive damages, an
accounting of Dillard’s profits, disgorgement of those profits, attorneys’
fees, pre-judgment and post judgment interest.” 129 On September 17,
2012, Clark filed his First Amended Complaint where he pleaded for:
[a] judgment awarding actual … actual and punitive
damages against Campbell for breach of fiduciary duties;
or alternatively, contract damages against Defendant
128 Plaintiff’s Motion for New Trial dated August 30, 2013, App. at 2148-49; 2 CR 589-
601.
129 Id.
Appellant’s Amended Opening Brief and Appendix 45
Campbell, plus attorneys’ fees, pre-judgment and post-
judgment interest for all claims where such awards
are available under Texas law. emphasis added.130
Finally on November 29, 2012, Clark filed his Second Amended
Complaint where he pleaded for:
[a] judgment awarding all available damages against all
Defendants, … plus attorneys’ fees, pre-judgment and
post-judgment interest for all claims where such
awards are available under Texas law. emphasis
added. 131
In each of Clark’s three Petitions, he clearly and consistently
pleaded for disgorgement of profits. In his first Petition Appellant
specifically sought disgorgement of profits. In the subsequent two
petitions, Appellant pleaded for “all claims where such awards are
available under Texas law” thereby encompassing disgorgement of
profits. Therefore, the trial court erred in granting Dillard’s objection to
Appellant’s request for disgorgement of profits.
G. THE COURT OVERRULED APPELLANT’S OBJECTIONS TO JURY
QUESTIONS THAT WERE INCORRECT AS A MATTER OF LAW AND
WERE INTERNALLY INCONSISTENT.
The trial court erred by overruling Clark’s objections to the jury
charge. Clark renews all of his objections to the jury charge as reflected
130 Id.
131 Id.
Appellant’s Amended Opening Brief and Appendix 46
in the record.132 Two jury instructions are particularly serious because
they were internally inconsistent, redundant, and led to an inconsistent
result.
Question No. 3: Do you find from a preponderance of the evidence
that Dillard’s misappropriation was excused?
Question No. 4: Do you find from a preponderance of the evidence
that Dillard’s misappropriation was excused as a result of mistake?
Questions 3 and 4 are identical except for the four additional words
in Question 4 that qualify the word “excused.” In Question 3, the word
“excused” is unqualified and, therefore, includes all possible bases for any
excuse. To that question, the jury answered “no”: that Dillard’s was not
excused from any possible mistake. Question 4 asked the same question
again, but added the words “as a result of mistake.” This question clearly
caused confusion as the jury answered “yes” to this question. This leaves
the record with two internally inconsistent fact findings which lead to
two different results with respect to the claims for misappropriation of
likeness.
132See generally, Trial Transcript Vol. 11, pp. 27:18 – 32:7, App. at 95-100; RR 11 at
27-32.
Appellant’s Amended Opening Brief and Appendix 47
Question 4 should not have been presented to the jury because
mistake is not a defense to the cause of action for misappropriation of
likeness. The elements of a misappropriation of name or likeness claim
are: 133
1. The defendant appropriated the plaintiff’s name or likeness for the
value associated with it;
2. The plaintiff can be identified from the publication; and
3. The defendant reaped some advantage or benefit.
If Dillard’s was not excused from using the images, there was a
misappropriation. Whether Dillard’s made a mistake is irrelevant. By
including Question 4, which was inconsistent with Question 3, the Court
created unnecessary confusion and a reversible error.
CONCLUSION
For the foregoing reasons, Appellants respectfully request that this
Court of Appeals make the following rulings: (1) that the trial court’s
order denying Appellant’s motion for partial summary judgment be
reversed and that the Court of Appeals render judgment that Dillard’s
misappropriated three of Appellant’s images; (2) that the trial court’s
133Brown v. Ames, 201 F.3d 654, 657-58 (5th Cir. 2000); Matthew v. Wozencraft, 15
F.3d 432, 437 (5th Cir. 1994); Benavidez v. Anheuser Busch, Inc., 878 F.2d 102, 104
(5th Cir. 1989).
Appellant’s Amended Opening Brief and Appendix 48
order granting in part Dillard’s motion for summary judgment,
dismissing claims for injunctive relief, unfair business practices and
declaratory relief be reversed and remanded for further proceedings; (3)
that the trial court’s order dismissing TCA from the case be reversed and
remanded for further proceedings; (4) that the trial Court’s decision to
strike Appellant’s damages expert the day before trial be reversed and
remanded; (5) that the trial court’s decision to exclude consequential
damages be reversed and remanded for further proceedings; (6) that the
trial court’s failure to take judicial notice of identified matters be
reversed and remanded for further proceedings; (7) that the trial court’s
decision to overrule Appellant’s objections to the court’s jury instructions
on misappropriation of likeness be reversed; and (8) that the trial court’s
order denying Appellant’s motion for new trial be reversed, and that a
new trial proceed.
Appellant’s Amended Opening Brief and Appendix 49
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of this
instrument is being served on a USB drive by United States Mail on this
27th day of March, 2014, upon the following counsel of record for
appellees:
Ophelia Camina
Susman Godfrey LLP
901 Main St., Suite 5100
Dallas, TX 75202
Brian A. Sheguit
The Bassett Firm
Two Turtle Creek Village
3838 Oak Lawn Ave., Suite 1300
Dallas, TX 75219
/s/ Stephen A. Kennedy
Stephen A. Kennedy
Kennedy Law, P.C.
1445 Ross Avenue, Suite 4950
Dallas, TX 75202
(214) 716-4343
skennedy@saklaw.net
Attorney for Appellant
Appellant’s Amended Opening Brief and Appendix 50