Frequent Flyer Depot, Inc., George Pirkle, and Robert Pirkle v. American Airlines, Inc. ( 2009 )


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  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-08-386-CV
    FREQUENT FLYER DEPOT, INC.,                                     APPELLANTS
    GEORGE PIRKLE, AND ROBERT
    PIRKLE
    V.
    AMERICAN AIRLINES, INC.                                            APPELLEE
    ------------
    FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
    ------------
    OPINION
    ------------
    This is an accelerated interlocutory appeal from the imposition of a
    temporary injunction prohibiting appellants Frequent Flyer Depot, Inc. and its
    officers and owners, George and Robert Pirkle, from engaging in the brokering,
    purchase, sale, bartering, and solicitation of American Airlines AAdvantage®
    rewards points. Appellants challenge the injunction on seven grounds: the
    underlying suit is pre-empted by federal law; the injunction does not preserve
    the status quo; there is no enforceable contract between American and its
    AAdvantage® members prohibiting members from selling their rewards points
    to third parties; the hearing on the temporary injunction should have been
    continued for appellants to obtain discovery on their antitrust-related
    counterclaims; American failed to show an imminent injury; American has an
    adequate remedy; and principles of equity bar the imposition of an injunction.
    Because we conclude that there is no reversible error on any of these grounds,
    we affirm.
    Background
    Frequent Flyer admittedly brokers the purchase and sale of airline frequent
    flyer miles and awards, including AAdvantage® rewards points issued by
    American to its AAdvantage® members. The Pirkles are officers and owners of
    Frequent Flyer. American sued appellants and other similar brokers and their
    principals, contending that the brokering, purchase, bartering, and sale of
    AAdvantage® rewards is improper. Among its claims against appellants are
    claims for tortious interference with contract, tortious interference with
    prospective relations, misappropriation, and fraud. American also asserted a
    breach of contract claim against Robert Pirkle.     After filing suit, American
    sought and obtained a temporary injunction prohibiting appellants from buying,
    2
    selling, bartering, or soliciting AAdvantage® rewards during pendency of the suit.
    Standard of Review
    To be entitled to a temporary injunction, the applicant must plead a cause
    of action and further show both a probable right to recover on that cause of
    action and a probable, imminent, and irreparable injury in the interim. Butnaru
    v. Ford Motor Co., 
    84 S.W.3d 198
    , 204 (Tex. 2002); Argyle ISD ex rel. Bd. of
    Trustees v. Wolf, 
    234 S.W.3d 229
    , 236 (Tex. App.—Fort Worth 2007, no
    pet.); Fox v. Tropical Warehouses, Inc., 
    121 S.W.3d 853
    , 857 (Tex. App.—Fort
    Worth 2003, no pet.). A probable right of recovery is shown by alleging a
    cause of action and presenting evidence tending to sustain it.        
    Wolf, 234 S.W.3d at 236
    ; 
    Fox, 121 S.W.3d at 857
    . An injury is irreparable if damages
    would not adequately compensate the injured party or if they cannot be
    measured by any certain pecuniary standard.       
    Butnaru, 84 S.W.3d at 204
    ;
    
    Wolf, 234 S.W.3d at 236
    ; 
    Fox, 121 S.W.3d at 857
    .
    In an appeal from an order granting or denying a temporary injunction, the
    scope of review is restricted to the validity of the order granting or denying
    relief. Walling v. Metcalfe, 
    863 S.W.2d 56
    , 58 (Tex. 1993); 
    Wolf, 234 S.W.3d at 237
    ; 
    Fox, 121 S.W.3d at 857
    . Whether to grant or deny a request for a
    temporary injunction is within the trial court’s discretion, and we will not
    reverse its decision absent an abuse of discretion. 
    Butnaru, 84 S.W.3d at 204
    ;
    3
    
    Wolf, 234 S.W.3d at 237
    ; 
    Fox, 121 S.W.3d at 857
    .             Accordingly, when
    reviewing such a decision, we must view the evidence in the light most
    favorable to the trial court’s order, indulging every reasonable inference in its
    favor, and determine whether the order was so arbitrary that it exceeds the
    bounds of reasonable discretion. 
    Wolf, 234 S.W.3d at 237
    ; 
    Fox, 121 S.W.3d at 857
    . A trial court does not abuse its discretion if it bases its decision on
    conflicting evidence and at least some evidence in the record reasonably
    supports the trial court’s decision. Davis v. Huey, 
    571 S.W.2d 859
    , 862 (Tex.
    1978); 
    Wolf, 234 S.W.3d at 237
    ; 
    Fox, 121 S.W.3d at 857
    . When findings of
    fact are not requested or separately filed, as in this case, we must uphold the
    trial court’s order on any legal theory supported by the record.      Mabrey v.
    SandStream, Inc., 
    124 S.W.3d 302
    , 309 (Tex. App.—Fort Worth 2003, no
    pet.).
    Pre-emption Claim
    Appellants first contend that American’s noncontract claims against them
    are pre-empted by the Airline Deregulation Act of 1978 (ADA), which provides,
    in part, that “[e]xcept as provided in this subsection, a State, political
    subdivision of a State, or political authority of at least 2 States may not enact
    or enforce a law, regulation, or other provision having the force and effect of
    law related to a price, route, or service of an air carrier that may provide air
    4
    transportation under this subpart.” 49 U.S.C.A. § 41713(b)(1) (West 2007).
    The United States Supreme Court has held that threatened enforcement by
    state attorneys general of “fare advertising guidelines” was pre-empted by the
    ADA. Morales v. Trans World Airlines, Inc., 
    504 U.S. 374
    , 391, 
    112 S. Ct. 2031
    , 2041 (1992).       The Court has also held that claims brought by
    AAdvantage® members against American in state court alleging violations of
    Illinois’s Consumer Fraud Act were pre-empted by section 41713(b)(1). Am.
    Airlines, Inc. v. Wolens, 
    513 U.S. 219
    , 226, 
    115 S. Ct. 817
    , 823–24 (1995).
    Appellants allege that this suit likewise involves an attempt to regulate
    prices, routes, or services that is pre-empted by the Act. American counters
    that any suit brought against it attempting to apply standards to its
    AAdvantage® program would be pre-empted as an attempt to place state
    regulations upon prices, routes, or services but that any attempt by it to
    enforce via state law its own standards as to prices, routes, or services,
    including frequent flyer mile credits, is not pre-empted as impermissible state
    regulation. We agree with American.
    In Morales, the Court considered the effect the advertising restrictions
    would have on airlines’ fares, holding that the restrictions would curtail the
    airlines’ ability to communicate their fares to customers. 
    Morales, 504 U.S. at 389
    , 112 S. Ct. at 2039–40. But it also held that “‘[s]ome state actions may
    5
    affect [airline fares] in too tenuous, remote, or peripheral a manner’ to have pre-
    emptive effect.” 
    Id. at 391,
    112 S. Ct. at 2040.
    The Court further distinguished contract actions in Wolens, holding that
    the Act does not shelter airlines from suits “seeking recovery solely for the
    airlines’ alleged breach of its own self-imposed undertakings.” 
    Wolens, 513 U.S. at 228
    , 115 S. Ct. at 824. Although concluding that the Act pre-empted
    AAdvantage® members’ Illinois Consumer Fraud Act claims because mileage
    credits are akin to “rates,” the Court nevertheless held that as to contracts
    affecting such mileage credits, “[m]arket efficiency requires effective means to
    enforce private agreements.” 
    Id. at 230,
    115 S. Ct. at 824.
    After Morales and Wolens, courts have held that certain personal injury
    causes of actions against airlines are not pre-empted by the Act. See, e.g.,
    Hodges v. Delta Airlines, Inc., 
    44 F.3d 334
    , 340 (5th Cir. 1995); Continental
    Airlines v. Kiefer, 
    920 S.W.2d 274
    , 283 (Tex. 1996). In explaining its decision
    in Kiefer, the Texas supreme court noted that, “as Wolens explains at some
    length, claims are not [pre-empted] if they do not involve the enforcement of
    policy-laden state law that too closely approaches a regulatory effect on
    airlines.” 
    Kiefer, 920 S.W.2d at 283
    .
    Here, although American has brought mostly tort claims, those claims
    attempt to protect the vitality of its self-imposed obligations: those arising from
    6
    the AAdvantage® program. American’s invoking the benefits and protections
    of state law to protect its own agreements does not have the same
    impermissible regulatory effect upon prices, routes, or services that Congress
    was concerned with in enacting section 41713(b)(1). The Act was intended
    to pre-empt only those state actions having a regulatory effect upon the airlines
    rather than to preclude airlines from seeking the benefits and protections of
    state law to enforce their self-imposed standards, regulations, and contracts.
    See 
    id. (“[T]he purpose
    of ADA preemption is not to absolve airlines from all
    liability under state law, but to prohibit state regulation of air carriers, direct or
    indirect.   Congress’ concern was ‘that the States would not undo federal
    deregulation with regulation of their own.’”); see also 
    Hodges, 44 F.3d at 337
    (“Following deregulation, the CAB’s [the former Civil Aeronautics Board’s]
    statements implementing the ADA strongly support the view that the ADA was
    concerned solely with economic deregulation, not with displacing state tort
    law.”). Indeed, denying American access to state courts for such purposes
    would seem to have such an impermissible regulatory effect.
    Appellants contend that it is unfair to allow the airlines unfettered access
    to the state courts to enforce their own standards related to frequent flyer
    programs while denying access to the state courts to the states themselves and
    other parties attempting to impose standards on the airlines under state law.
    7
    But the fairness of this application is not for us to decide; we must abide by
    Congress’s intentions when determining whether a suit is pre-empted by the
    Act.   See 
    Morales, 504 U.S. at 383
    , 112 S. Ct. at 2036 (noting that in
    determining whether a suit is pre-empted under the Act, the question is one of
    statutory intent, and we must “begin with the language employed by Congress
    and the assumption that the ordinary meaning of that language accurately
    expresses the legislative purpose”).
    We conclude and hold that American’s suit against appellants is not pre-
    empted by section 41713 of the Act. We overrule appellants’ first issue.
    Status Quo
    In their second issue, appellants contend that the injunction fails to
    preserve the status quo. According to appellants, they have been operating
    their business since 2002; they allege that American has known about their
    activities since that time, or at least since the beginning of the lawsuit.
    Appellants claim that because American knowingly allowed their activities to
    continue for some time, the last peaceable uncontested status is to allow
    appellants to continue their business.
    The purpose of a temporary injunction is to preserve the status quo until
    a trial on the merits. 
    Butnaru, 84 S.W.3d at 204
    ; 
    Wolf, 234 S.W.3d at 237
    ;
    
    Fox, 121 S.W.3d at 857
    . “Status quo is defined as ‘the last, actual, peaceable,
    8
    noncontested status which preceded the pending controversy.’”           Universal
    Health Servs., Inc. v. Thompson, 
    24 S.W.3d 570
    , 577 (Tex. App.—Austin
    2000, no pet.) (quoting Transp. Co. v. Robertson Transps., Inc., 
    152 Tex. 551
    , 
    261 S.W.2d 549
    , 553–54 (1953)); see 
    Wolf, 234 S.W.3d at 237
    .
    George Pirkle testified at the temporary injunction hearing that an attorney
    for American called him “several times” in 2002 about domain names
    connected to Frequent Flyer’s website, frequentflyerdepot.com. The attorney
    told George that those domain names constituted trademark infringement and
    that American wanted them back. George told the attorney that the domain
    names were connected to frequentflyerdepot.com, and he agreed to give them
    to American. Although George testified that the attorney did not tell him to
    stop operating frequentflyerdepot.com, he also admitted that he could not recall
    whether they had talked about Frequent Flyer’s brokerage business. He also
    said that the lawyer never told him that American would permit Frequent Flyer
    to sell AAdvantage® miles.
    Since 2005, American has stopped travel on tickets sold by Frequent
    Flyer by freezing the accounts of AAdvantage® members who American
    discovers have improperly sold their rewards points to a third party. But George
    Pirkle admitted that American successfully discovers and stops travel on
    Frequent Flyer’s transactions only between about three and four to ten percent
    9
    of the time. American’s representative testified that these “policing” efforts are
    disruptive, causing operational difficulties for American and diverting resources
    away from legitimate ticketing.
    When American deposed George Pirkle as the designated representative
    of Frequent Flyer, 1 he admitted that Frequent Flyer “brokers” AAdvantage®
    rewards points; in other words, Frequent Flyer buys rewards points from
    AAdvantage® members and sells those points to third parties. He agreed that
    American had asked Frequent Flyer to stop doing so “earlier this year [2008],”
    and he confirmed that Frequent Flyer had refused.          American sought the
    temporary injunction hearing shortly after taking appellants’ depositions.
    If, as American claims, appellants’ activities are in violation of its
    agreements with AAdvantage® members,2 the last peaceable, noncontested
    status is for appellants to refrain from selling AAdvantage® rewards points.
    There is no evidence that American knew of Frequent Flyer’s brokering
    activities in 2002 when its attorney contacted George Pirkle about the domain
    names; as George himself testified, he bought around 136 domain names when
    he started. Likewise, there is no evidence that American knew in 2005 and
    1
    … American says in its brief that the depositions had been delayed due
    to George Pirkle’s poor health; appellants do not dispute this.
    2
    … Appellants do not challenge on appeal whether American proved a
    probable right to recover on its causes of action.
    10
    later that the AAdvantage® accounts it was freezing for the improper sale of
    rewards points were sold through Frequent Flyer in particular.3 Even so, it is
    a reasonable inference that American could not have known the full extent of
    Frequent Flyer’s activities, considering George’s testimony that Frequent Flyer
    transactions were “caught” only between three to ten percent of the time.
    American moved for a temporary injunction when it learned the full extent
    of Frequent Flyer’s activities and Frequent Flyer refused to discontinue those
    activities even in the face of American’s suit. American should not be denied
    its ability to obtain injunctive relief to which it is otherwise entitled simply
    because it took some time for it to discover Frequent Flyer’s admittedly
    concealed activity. See Sharma v. Vinmar Int’l, Ltd., 
    231 S.W.3d 405
    , 428–29
    (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that complete
    preservation of status quo in case involving improper use of trade secrets to
    operate competing chemical sales company was that new company would not
    be able to sell any of the disputed chemicals). We hold that the trial court’s
    injunction properly preserves the status quo pending resolution of the suit.
    Accordingly, we overrule appellants’ second issue.
    3
    … George and Robert both testified that Frequent Flyer instructs
    customers who purchase rewards points from it to tell American that the points
    are a gift and that such representations are lies.
    11
    Enforceability of Agreement Between American and AAdvantage® Members
    Appellants contend in their third issue that there is no evidence that
    American has a binding contract with its AAdvantage® members such that
    appellants’ actions in buying and selling, and inducing AAdvantage® members
    to buy and sell, AAdvantage® rewards points are improper as alleged by
    American in its tort claims.
    To become an AAdvantage® member, a person must agree to American’s
    online User Agreement, which contains the following provision: “At no time
    may AAdvantage® mileage credit or award tickets be purchased, sold or
    bartered. Any such mileage or tickets are void if transferred for cash or other
    consideration.” The User Agreement also contains other provisions allowing
    American to change the terms of the AAdvantage® program, upon which
    appellants base their claim that the User Agreement lacks mutuality and is,
    therefore, unenforceable.      Specifically, the User Agreement states that
    American may,
    in its discretion, change the AAdvantage® program rules,
    regulations, travel awards, and special offers at any time with or
    without notice. . . . American Airlines may make one or more of
    [certain enumerated] changes at any time even though such
    changes may affect your ability to use the mileage credit or awards
    12
    that you have already accumulated. American Airlines reserves the
    right to end the AAdvantage® program with six months notice.4
    According to appellants, this clause shows a fatal lack of mutuality, rendering
    the entire agreement unenforceable.
    A bilateral contract is one in which there are mutual promises between
    two parties to the contract, each being both a promisor and a promisee.
    Hutchings v. Slemons, 
    141 Tex. 448
    , 
    174 S.W.2d 487
    , 489 (1943); The
    Colony, Tex. v. N. Tex. Mun. Water Dist., 
    272 S.W.3d 699
    , 725 (Tex.
    App.—Fort Worth, no pet. h.). A bilateral contract must be based upon a valid
    consideration, in other words, mutuality of obligation. Fed. Sign v. Tex. S.
    Univ., 
    951 S.W.2d 401
    , 409 (Tex. 1997); The 
    Colony, 272 S.W.3d at 725
    .
    Consideration may consist of either benefits or detriments to the contracting
    parties; it may consist of some right, interest, profit, or benefit that accrues to
    one party, or alternatively, of some forbearance, loss, or responsibility that is
    undertaken or incurred by the other party. The 
    Colony, 272 S.W.3d at 725
    ; In
    re C & H News Co., 
    133 S.W.3d 642
    , 647 (Tex. App.—Corpus Christi 2003,
    orig. proceeding). The existence of a written contract presumes consideration
    4
    … The agreement also states that American “may amend its rules of the
    Program at any time without notice.”
    13
    for its execution. The 
    Colony, 272 S.W.3d at 725
    ; Doncaster v. Hernaiz, 
    161 S.W.3d 594
    , 603 (Tex. App.—San Antonio 2005, no pet.).
    A contract that lacks mutuality of obligation is illusory and void and thus
    unenforceable. The 
    Colony, 272 S.W.3d at 725
    ; Tex. S. Univ. v. State St.
    Bank & Trust Co., 
    212 S.W.3d 893
    , 914 (Tex. App.—Houston [1st Dist.]
    2007, pet. denied). A promise is illusory when it fails to bind the promisor who
    retains the option of discontinuing performance without notice. Light v. Centel
    Cellular Co. of Tex., 
    883 S.W.2d 642
    , 645 (Tex. 1994); The 
    Colony, 272 S.W.3d at 725
    ; Rogers v. Alexander, 
    244 S.W.3d 370
    , 382 (Tex. App.—Dallas
    2007, no pet. h.). But mutuality in each clause of a contract is not required
    when consideration is given for the contract as a whole. Howell v. Murray
    Mortgage Co., 
    890 S.W.2d 78
    , 87 (Tex. App.—Amarillo 1994, writ denied).
    The test for mutuality is applied and determined when enforcement is
    sought, not when the promises are made. 
    Hutchings, 174 S.W.2d at 489
    ;
    Cherokee Commc’ns, Inc. v. Skinny’s, Inc., 
    893 S.W.2d 313
    , 316 (Tex.
    App.—Eastland 1994, writ denied). Accordingly, even if an illusory promise
    renders a contract unilateral, consideration can still be established by part
    performance by the promisee.      
    Hutchings, 174 S.W.2d at 489
    ; Cherokee
    
    Commc’ns, 893 S.W.2d at 316
    ; cf. Alex Sheshunoff Mgmt. Servs., L.P. v.
    Johnson, 
    209 S.W.3d 644
    , 650–51 (Tex. 2006) (distinguishing general rule as
    14
    to covenants not to compete, which, by statute, must be enforceable when
    entered into).
    Here, the clause pointed to by appellants allows American to terminate
    the program upon notice and allows American to change the terms of the
    program with or without notice. However, that does not mean American is
    without obligation to its members under the User Agreements. In consideration
    for AAdvantage® members’ purchasing paid travel on American and its partner
    airlines, and purchasing other services from specified providers, American
    agrees to provide rewards points to those customers.               It is nonsensical for
    appellants to argue that no enforceable agreement exists when their entire
    business depends on the enforceability of that agreement. In other words, if
    American has no obligation to issue a ticket in exchange for rewards points
    when an AAdvantage® member fully complies with the User Agreement,
    appellants are ill-positioned to complain about the trial court’s enjoining their
    activities, which depend on American’s complying with its obligation even when
    a ticket is obtained in violation of the applicable User Agreement. Appellants
    cannot have it both ways.
    Additionally,   as   appellants   point   out   in   their    brief,   American’s
    misappropriation claim “as alleged requires a showing that [appellants]
    ‘wrongfully[]obtained award tickets.’” The key word here is “obtained,” in the
    15
    past tense. It is undisputed that American has issued tickets in exchange for
    rewards points purchased through Frequent Flyer. With regard to those tickets,
    then, American has performed under the applicable User Agreements. Thus,
    even if American’s consideration was illusory when it entered into the
    applicable User Agreements, its subsequent performance under those
    agreements established consideration, rendering those agreements enforceable.
    See 
    Hutchings, 174 S.W.2d at 489
    ; Cherokee 
    Commc’ns, 893 S.W.2d at 316
    .
    The same holds true for tickets that American will issue in exchange for
    rewards points in the future. If American does not issue any such tickets, then
    the question of whether American can enforce the no-sale rule is moot. But if
    American does issue tickets in exchange for rewards points acquired through
    purchase or barter—then it will again have partially performed under the User
    Agreements at issue, thus establishing the necessary consideration to render
    those agreements enforceable. See 
    Hutchings, 174 S.W.2d at 489
    ; Cherokee
    
    Commc’ns, 893 S.W.2d at 316
    .5
    5
    … Moreover, we note that, as a practical matter, American is effectively
    conceding the enforceability of the User Agreements. Appellants criticize
    American for relying on cases construing similar airline passenger incentive
    agreements because in those cases the passengers themselves—who were
    seeking to enforce the agreements—conceded the existence of enforceable
    agreements. See Mozingo v. Alaska Air Group, Inc., 
    112 P.3d 655
    , 661–62
    (Alaska 2005); Grossman v. USAir, Inc., 33 Phila. Co. Rptr. 427, 431–32 (C.P.
    1997). But the key factor that makes this case similar to those is that the party
    16
    For these reasons, we conclude and hold that American’s AAdvantage®
    User Agreements do not fail for lack of mutuality, and we overrule appellants’
    third issue.
    Continuance
    In their fourth issue, appellants claim that the trial court abused its
    discretion by refusing to continue the temporary injunction hearing.
    Appellants moved for a continuance both before and after the temporary
    injunction hearing on the ground that American had refused to produce
    documents in response to appellants’ Third Request for Production. Appellants
    requested these documents in conjunction with their counterclaims against
    American for interference with contractual and business relations, tortious
    interference with prospective relations, a declaratory judgment that appellants’
    actions in purchasing and selling AAdvantage® rewards points are not improper,
    violations of the Texas Free Enterprise Act, violations of the DTPA, and
    injunctive relief.   In particular, appellants claimed they needed additional
    discovery on their antitrust claims, their equitable defenses, and whether
    American had an adequate remedy at law.              The gist of appellants’
    seeking enforcement—here, American—effectively concedes enforceability of
    the agreements by attempting to enforce them.
    17
    counterclaims is that American is a competitor and is unlawfully attempting to
    restrict their ability to maintain a competing business.
    Appellants’ complaint fails initially because they failed to support their
    written motion for continuance with an affidavit as required by rule 251. Tex.
    R. Civ. P. 251. Generally, when a movant fails to comply with rule 251, we
    presume the trial court did not abuse its discretion by denying a motion for
    continuance.   Villegas v. Carter, 
    711 S.W.2d 624
    , 626 (Tex. 1986); Sw.
    Country Enters., Inc. v. Lucky Lady Oil Co., 
    991 S.W.2d 490
    , 493 (Tex.
    App.—Fort Worth 1999, pet. denied); see also Tri-Steel Structures, Inc. v.
    Baptist Found. of Tex., 
    166 S.W.3d 443
    , 448–49 (Tex. App.—Fort Worth
    2005, pet. denied) (holding that trial court did not abuse its discretion by
    denying motion for continuance when not in proper “affidavit form”).
    Appellants did not comply with rule 251; thus, we conclude and hold that
    the trial court did not abuse its discretion by denying their motion for
    continuance.    Moreover, if necessary to protect a proven legal right, a
    temporary injunction may issue even if it has the effect of restraining
    competition, so long as it is narrowly tailored to preserve the status quo.
    
    Sharma, 231 S.W.3d at 428
    –29 (“While ordinarily a temporary injunction
    should operate as a corrective rather than a punitive measure, when a choice
    must be made between a failure to provide adequate protection of a recognized
    18
    legal right and the punitive operation of the writ, the latter course must be
    taken. ”). We overrule appellants’ fourth issue.
    Proof of Injury
    Appellants’ fifth issue complains that American failed to meet its burden
    to prove that it was injured.
    American alleged that it is injured by Frequent Flyer’s actions because
    customers who purchase void rewards points from appellants (because those
    purchases violate the no-sale rule) would likely have purchased tickets from
    American had they not obtained the void tickets; thus, those customers likely
    displaced other AAdvantage® members or other paying American customers
    who would have purchased tickets had the seats not been occupied by travelers
    using the void tickets.    American also alleged that it lost goodwill with
    AAdvantage® members in that those members were prevented from using their
    AAdvantage® rewards points because seats were occupied by persons using the
    void tickets. Appellants contend that American “offered no evidence of any
    identified passenger, actual or potential, who suffered any aspect of
    [American’s] litany of claimed injuries.”
    A party proves irreparable injury for injunction purposes by proving that
    damages would not adequately compensate the party or cannot be measured
    by any certain pecuniary standard.     
    Butnaru, 84 S.W.3d at 204
    ; Fox, 
    121 19 S.W.3d at 857
    . An injunction is not proper when the claimed injury is merely
    speculative, however; fear and apprehension of injury are not sufficient to
    support a temporary injunction. Jordan v. Landry’s Seafood Rest., Inc., 
    89 S.W.3d 737
    , 742 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (op. on
    reh’g).
    American offered the testimony of Jim Balsom, Manager of AAdvantage®
    systems and partner support. He testified without objection that American is
    reluctant to challenge the veracity of AAdvantage® members’ representations
    when booking travel because “that would not engender goodwill[;] in fact, [it
    would] probably cost [American] significant goodwill if we were to do that.”
    Additionally, he testified that such an inquiry “[w]ould take [a] significant
    amount of time and add significantly to [American’s] costs.”
    Balsom further testified that brokering operations such as Frequent Flyer’s
    “cause[] customers to question [American’s] ability to manage and maintain the
    program and deliver the benefits that we’ve promised to customers.” He said
    that when American discovers a void transaction due to Frequent Flyer’s
    activities, its business is disrupted and it must divert resources away from
    legitimate customers to deal with the void transactions. He also testified that
    freezing the AAdvantage® accounts at issue causes ill will for the member.
    20
    Balsom further stated that dealing with these types of transactions causes
    “operational difficulties or issues.”
    Regarding displacement, Balsom testified that when Frequent Flyer sells
    an AAdvantage® member’s rewards points to a third party, that third party
    displaces a customer “who would either pay cash for that ticket or . . . who
    would redeem AAdvantage® miles for the seat.”       He said it also “does use
    resources through [American’s] reservations office [and] potentially AA.com for
    other business purposes” instead of valid ticket sales.
    Appellants challenge American’s displacement evidence, pointing to
    Securities and Exchange Commission reports filed by AMR, American’s parent
    company, showing that, generally, between 2003 and 2007, twenty to thirty
    percent of seats on American’s flights were empty. It also points to statements
    in those reports to the effect that, with respect to the AAdvantage® program,
    AMR “believes displacement of revenue passengers is minimal given the
    Company’s load factors, its ability to manage frequent flyer inventory, and the
    relatively low ratio of free award usage to total passengers boarded.”
    According to appellants, absent evidence from specific flights on which
    displacement occurred, American cannot overcome this evidence of empty
    seats on its flights.
    21
    The SEC filings do not give information for specific flights; indeed, the
    vacancies in paying seats may be higher due to higher numbers of business
    travelers paying a lower price for rewards points tickets through Frequent Flyer
    than paying for typical full-fare seats. 6    And the isolated statement that
    displacement is minimal is clearly in relation to the function of the program
    according to its guidelines; in other words, passenger displacement is minimal
    when the program is operating without outside influences.
    American points to additional evidence as supporting the proof of injury
    requirement, such as the fact that it is virtually impossible to police appellants’
    6
    … As the United State Supreme Court noted in Morales,
    The expenses involved in operating an airline flight are almost
    entirely fixed costs; they increase very little with each additional
    passenger. The market for these flights is divided between
    consumers whose volume of purchases is relatively insensitive to
    price (primarily business travelers) and consumers whose demand
    is very price sensitive indeed (primarily pleasure travelers).
    Accordingly, airlines try to sell as many seats per flight as possible
    at higher prices to the first group, and then to fill up the flight by
    selling seats at much lower prices to the second group (since
    almost all the costs are fixed, even a passenger paying far below
    average cost is preferable to an empty seat). In order for this
    marketing process to work, and for it ultimately to redound to the
    benefit of price-conscious travelers, the airlines must be able to
    place substantial restrictions on the availability of the lower priced
    seats (so as to sell as many seats as possible at the higher rate),
    and must be able to advertise the lower 
    fares. 504 U.S. at 389
    , 112 S. Ct. at 2040.
    22
    actions (when American discovers a void ticket, Frequent Flyer simply buys
    more miles and issues a new one), that American has to devote resources to
    investigating and policing appellants’ actions that disrupt its operation and
    divert its resources from legitimate customers, and the unobjected-to evidence
    that American’s inability to police activities such as Frequent Flyer’s causes
    AAdvantage® members to question its ability to effectively run the program.
    Disruption to a business can be irreparable harm. Lavigne v. Holder, 
    186 S.W.3d 625
    , 629 (Tex. App.—Fort Worth 2006, no pet.); David v. Bache
    Halsey Stuart Shields, Inc., 
    630 S.W.2d 754
    , 757 (Tex. App.—Houston [1st
    Dist.] 1982, no writ) (“This harm would not only disrupt the organized business
    dealings of Bache but would also threaten customer confidence in Bache’s
    handling of their private affairs, and probably cause Bache to lose not only
    customers but profits as well.”). Moreover, assigning a dollar amount to such
    intangibles as a company’s loss of clientele, goodwill, marketing techniques,
    and office stability, among others, is not easy. Martin v. Linen Sys. for Hosps.,
    Inc., 
    671 S.W.2d 706
    , 710 (Tex. App.—Houston [1st Dist.] 1984, no writ).
    American offered specific, undisputed evidence of intangible harm to its
    business, including the AAdvantage® program, resulting from appellants’
    actions.   Balsom’s testimony was not speculative and is supported by the
    Pirkles’ own testimony about Frequent Flyer’s operations, specifically, its
    23
    instructions to AAdvantage® members intended to conceal its activities from
    American.
    We conclude and hold that American presented evidence of an irreparable
    injury. Thus, we overrule appellants’ fifth issue.
    Adequate Remedy
    In their sixth issue, appellants claim that if American presented sufficient
    evidence to meet its burden of proof as to injury, that same evidence shows
    that American has an adequate remedy in damages. Specifically, appellants
    claim that damages can be calculated easily from AMR’s SEC filings if American
    can provide the identity of specific displaced passengers. They also contend
    that American cannot show lost profits because it has not made any profit since
    at least 2002.
    American counters that even if damages can be assigned to displaced
    passengers, appellants “do not refute the evidence . . . that their conduct
    disrupts American’s business . . . in many ways and affects the reputation and
    loyalty it has developed over years with its customers.”
    An adequate remedy is one that is as complete, practical, and efficient to
    the prompt administration of justice as is equitable relief. 
    Mabrey, 124 S.W.3d at 317
    . Damages are an inadequate remedy if they are difficult to calculate.
    
    Id. at 318–19.
    24
    According to American, while the evidence appellants point to may show
    that some of its damages are calculable, it does not show a way to calculate
    damages for American’s claims of loss of goodwill and other intangibles. We
    agree. As we have already stated, the intangible types of injuries testified to
    by Balsom are the types of injuries to which a dollar value may not easily be
    assigned.   
    Martin, 671 S.W.2d at 710
    .      A remedy is not adequate simply
    because some of the proven damages are calculable. See Tex. Indus. Gas v.
    Phoenix Metallurgical Corp., 
    828 S.W.2d 529
    , 532 (Tex. App.—Houston [1st
    Dist.] 1992, no writ) (“For a legal remedy to be adequate, it must give the
    applicant complete, final, and equal relief.”); see also Towers v. Grogan, No.
    01-97-00946-CV, 
    1998 WL 191760
    , at *4 (Tex. App.—Houston [1st Dist.]
    Apr. 23, 1998, no pet.) (not designated for publication) (holding that although
    some breach of contract damages were calculable, specific damages for which
    Grogan sought injunctive relief were intangibles, incapable of being measured
    by damages).
    We conclude and hold that American proved that damages are not
    adequate to fully compensate it for its injuries.   Accordingly, we overrule
    appellants’ sixth issue.
    25
    Equitable Concerns
    Appellants’ seventh issue raises equitable claims, including laches and
    unclean hands.
    Appellants first contend that American’s temporary injunction claim is
    barred by laches because American has failed to take action against appellants
    despite knowing since 2002 the type of business Frequent Flyer was engaged
    in. Appellants claim Frequent Flyer has been prejudiced by American’s inaction
    because the Pirkles never would have expanded the business since 2002 had
    they known American objected to Frequent Flyer’s conduct.
    A party asserting the defense of laches must show both an unreasonable
    delay by the other party in asserting its rights and harm resulting to it because
    of the delay. Rogers v. Ricane Enters. Inc., 
    772 S.W.2d 76
    , 80 (Tex. 1989);
    In re Roxsane R., 
    249 S.W.3d 764
    , 771 (Tex. App.—Fort Worth 2008, orig.
    proceeding).   Here, we have already discussed the lack of evidence that
    American knew or should have known of appellants’ activities when its lawyer
    contacted George Pirkle in 2002 about the domain names. In addition, we have
    also pointed to the evidence that Frequent Flyer purposefully concealed its
    dealings from American and instructed AAdvantage® members to do the same.
    Accordingly, we do not believe that the evidence shows that American
    deliberately slumbered on its rights with regard to appellants’ conduct.
    26
    Moreover, there was evidence from which the trial court could have
    concluded that appellants failed to show prejudice; the trial court elicited
    testimony from George that Frequent Flyer’s expansion also had to do with
    increased trade in other airlines’ frequent flyer miles. George also testified that
    he had been aware of American’s no-sale provision since at least 2005 because
    American had stopped travel on tickets bought with rewards points sold by
    Frequent Flyer before that time. Accordingly, we conclude and hold that the
    trial court did not abuse its discretion by rejecting appellants’ claim of laches.
    Appellants contend that American has unclean hands because “the
    evidence shows that [American] is part of an illegal conspiracy with regard to
    the antitrust laws of the United States and the State of Texas.” According to
    appellants, the temporary injunction prevents (and American’s suit seeks to
    prevent) them from competing with American.           Appellants also claim that
    American must do equity to obtain equity and that American has failed to do
    so by authorizing Points.com and its airline partners to trade with members for
    AAdvantage® rewards points. This argument appears to incorporate appellants’
    antitrust and anticompetition claims. But as we have already held, an otherwise
    proper injunction will not be rendered improper by claims that such an injunction
    would have a preclusive effect on competition. See 
    Sharma, 231 S.W.3d at 27
    429.    Thus, we conclude and hold that the trial court did not abuse its
    discretion by rejecting appellants’ equitable defenses.
    We overrule appellants’ seventh issue.
    Conclusion
    Having overruled all of appellants’ issues, we affirm the trial court’s order
    granting the temporary injunction.
    TERRIE LIVINGSTON
    JUSTICE
    PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
    DELIVERED: February 26, 2009
    28
    

Document Info

Docket Number: 02-08-00386-CV

Filed Date: 2/26/2009

Precedential Status: Precedential

Modified Date: 9/4/2015

Authorities (30)

Hutchings v. Slemons , 141 Tex. 448 ( 1943 )

Morales v. Trans World Airlines, Inc. , 112 S. Ct. 2031 ( 1992 )

Monzingo v. Alaska Air Group, Inc. , 2005 Alas. LEXIS 58 ( 2005 )

Cherokee Communications, Inc. v. Skinny's, Inc. , 893 S.W.2d 313 ( 1995 )

Jordan v. Landry's Seafood Restaurant, Inc. , 2002 Tex. App. LEXIS 7483 ( 2002 )

Continental Airlines, Inc. v. Kiefer , 39 Tex. Sup. Ct. J. 468 ( 1996 )

Alex Sheshunoff Management Services, L.P. v. Johnson , 50 Tex. Sup. Ct. J. 44 ( 2006 )

ARGYLE INDEPENDENT SCHOOL DIST. v. Wolf , 234 S.W.3d 229 ( 2007 )

Doncaster v. Hernaiz , 2005 Tex. App. LEXIS 773 ( 2005 )

Mabrey v. SandStream, Inc. , 2003 Tex. App. LEXIS 10467 ( 2003 )

Rogers v. Alexander , 2007 Tex. App. LEXIS 5103 ( 2007 )

Rogers v. Ricane Enterprises, Inc. , 32 Tex. Sup. Ct. J. 458 ( 1989 )

Fox v. Tropical Warehouses, Inc. , 121 S.W.3d 853 ( 2004 )

In Re Roxsane R. , 2008 Tex. App. LEXIS 2321 ( 2008 )

Butnaru v. Ford Motor Co. , 45 Tex. Sup. Ct. J. 916 ( 2002 )

Howell v. Murray Mortgage Co. , 890 S.W.2d 78 ( 1994 )

City of the Colony v. North Texas Municipal Water District , 272 S.W.3d 699 ( 2008 )

Transport Co. of Texas v. Robertson Transports , 152 Tex. 551 ( 1953 )

Davis v. Huey , 22 Tex. Sup. Ct. J. 8 ( 1978 )

Tri-Steel Structures, Inc. v. Baptist Foundation of Texas , 2005 Tex. App. LEXIS 4115 ( 2005 )

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