Charles Watson v. Talia Heights, LLC, Talia Court, LLC and Mehta Real Estate, Ltd , 566 S.W.3d 326 ( 2018 )

Affirmed and Opinion filed October 18, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00441-CV
CHARLES WATSON, Appellant
V.
TALIA HEIGHTS, LLC, TALIA COURT, LLC, AND MEHTA REAL
ESTATE, LTD., Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2015-28746
OPINION
This dispute arises from the alleged misappropriation of appellant Charles
Watson’s name in connection with certain real estate transactions. Watson sued
appellees Talia Heights, LLC, Talia Court, LLC, and Mehta Real Estate, Ltd.
(collectively, the “Talia Appellees”), asserting claims for misappropriation of his
name and conspiracy. The trial court granted the Talia Appellees’ summary
judgment motion. Because we conclude that Watson did not produce any evidence
to support certain elements of his claims, we affirm.
BACKGROUND
Watson and Tiffanie Purvis, a Houston real estate broker, were partners in
romance and business. Watson and Purvis formed a general partnership to invest in
real estate and pursue related business opportunities. Watson’s and Purvis’s
romantic relationship ended in 2014; Watson sued Purvis in May 2015 asserting
claims arising from the parties’ business dealings.
Watson filed a first amended petition in May 2016 and added claims against
the Talia Appellees. Watson’s newly added claims alleged that Purvis and the Talia
Appellees signed certain real estate purchase contracts on behalf of Watson without
his permission. The real estate purchase contracts subsequently were assigned to
appellee Talia Heights, LLC. Watson asserts that the real estate purchase contracts
and subsequent assignments were executed without his knowledge or consent.
Watson asserts that he was identified as the properties’ purchaser because his
name would secure “a more favorable price for the subject real estate, because the
sellers would have demanded a higher price from a buyer who was a known real
estate developer or real estate broker than from a buyer who was merely an
individual and not a real estate professional.” Watson asserted claims against the
Talia Appellees for misappropriation of his name and conspiracy.
The Talia Appellees filed a no evidence and a separate traditional summary
judgment motion. See Tex. R. Civ. P. 166a(c), (i). The Talia Appellees’ no evidence
summary judgment motion asserted that Watson could not produce any evidence to
support certain elements of his misappropriation and conspiracy claims. The Talia
Appellees’ traditional summary judgment motion asserted that Watson’s claims
were barred by the applicable statute of limitations.
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The trial court signed an order on April 7, 2017, granting the Talia Appellees’
no evidence and traditional summary judgment motions and dismissing all of
Watson’s claims against the Talia Appellees. The trial court’s order did not specify
the grounds on which its decision was based. Watson timely appealed.
STANDARD OF REVIEW
When the trial court’s order does not specify the grounds it relied on in
reaching its decision, we affirm if any ground advanced by the moving party is
meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73
(Tex. 2000); Wyly v. Integrity Ins. Solutions, 502 S.W.3d 901, 904 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). The burden is on the non-moving party to show
that each independent summary judgment argument was insufficient to support the
trial court’s judgment. Brown v. Hensley, 515 S.W.3d 442, 446 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
We review de novo the trial court’s ruling on a summary judgment motion.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). When a movant has filed both a no evidence and a traditional summary
judgment motion, we typically review the propriety of the summary judgment under
the no evidence standard first. Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 792
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004)).
In a no evidence summary judgment motion, the moving party represents that
there is no evidence of one or more essential elements of a claim for which the non-
moving party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no
evidence summary judgment motion must be granted if the non-moving party does
not respond with competent evidence that raises a genuine issue of material fact on
the challenged elements. Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.—
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Houston [14th Dist.] 2005, no pet.). We take as true all evidence favorable to the
non-moving party and indulge every reasonable inference and resolve any doubts in
the non-moving party’s favor. Id.
ANALYSIS
The Talia Appellees moved for a no evidence and a traditional summary
judgment; Watson’s arguments on appeal challenge the trial court’s summary
judgment under both standards. Because we conclude that the Talia Appellees were
entitled to summary judgment on no evidence grounds, we do not address Watson’s
other arguments on appeal. See FM Props. Operating Co., 22 S.W.3d at 872-73;
Wyly, 502 S.W.3d at 904.
I. Misappropriation
The Talia Appellees assert that they were entitled to summary judgment on
Watson’s misappropriation claim because Watson cannot produce any evidence to
show that his name was misappropriated for the value associated with it.
The three elements of a misappropriation claim are (1) the defendant
appropriated the plaintiff’s name or likeness for the value associated with it, and not
in an incidental manner or for a newsworthy purpose; (2) the plaintiff can be
identified from the publication; and (3) there was some advantage or benefit to the
defendant. Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App.—
Dallas 2001, no pet.) (citing Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir.
1994)); see also Doggett v. Travis Law Firm, P.C., No. 01-17-00098-CV, 2018 WL
2141412, at *3 (Tex. App.—Houston [1st Dist.] May 10, 2018, pet. denied). “Name
misappropriation is a species of invasion of privacy, and Texas law applies a very
restrictive interpretation of the tort.” Cardiovascular Provider Res. Inc. v. Gottlich,
No. 05-13-01763-CV, 2015 WL 4914725, at *3 (Tex. App.—Dallas Aug. 18, 2015,
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pet. denied) (mem. op.).
“Texas law does not protect a name per se, but the value associated with it.”
Express One Int’l, Inc., 53 S.W.3d at 900. To establish liability for
misappropriation, “the defendant must have appropriated to his own use or benefit
the reputation, prestige, social or commercial standing, public interest or other
values” of the plaintiff’s name. Moore v. Big Picture Co., 828 F.2d 270, 275 (5th
Cir. 1987) (citing Restatement (Second) of Torts § 652C, cmt. c (1977)). An
appropriation generally becomes actionable when the plaintiff’s name is used “‘to
advertise the defendant’s business or product, or for some similar commercial
purpose.’” Express One Int’l, Inc., 53 S.W.3d at 900 (quoting Matthews, 15 F.3d at
437).
These principles are discussed in Cardiovascular Provider Resources, Inc.,
2015 WL 4914725, at *1-2. The defendant maintained an “investor list” that
governed the defendant’s investment in a separate entity — the more investors who
were listed, the more money the defendant was able to invest. Id. The plaintiff
brought a misappropriation claim against the defendant after the defendant refused
to remove the plaintiff’s name from the investor list. Id. at *2. The jury returned a
verdict for the plaintiff on his misappropriation claim. Id.
The Dallas Court of Appeals reversed the jury’s verdict and concluded that
the plaintiff “failed to provide any evidence that his name specifically had a unique
value that was misappropriated and diluted” by the defendant. Id. at *3, *5. Because
“there [was] no evidence to show that [the defendant’s] use of [the plaintiff’s name]
on its investor list had anything to do with seeking or deriving a benefit from [the
plaintiff’s] reputation, prestige, notoriety or skill,” the plaintiff failed to show that
his inclusion on the investor list had anything to do with his unique skills or
reputation. Id. at *3. The court also pointed out that the plaintiff “was merely a
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member of a pool of physicians with identical qualifications” and that, when the
plaintiff’s name was removed from the investor list, “it was replaced with that of
another physician with no impact on [the defendant’s] investment.” Id.
Analyzing this teaching, we conclude that Watson did not satisfy his summary
judgment burden because he did not bring forth any evidence to show that the Talia
Appellees misappropriated his name to benefit from the value associated with it.
Watson’s summary judgment evidence did not show that his name was used to take
advantage of his “reputation, prestige, social or commercial standing, public interest
or other values.” See Moore, 828 F.2d at 275.
Watson’s arguments on appeal focus on the benefits conferred on the Talia
Appellees from the real estate transactions at issue. Watson asserts that the Talia
Appellees received (1) $12 million in revenue from the development of the
purchased properties; (2) a co-obligor under the terms of the real estate purchase
contracts; and (3) a “lock-up right on valuable properties for development.” Watson
asserts that these benefits resulted from the misappropriation of his name.
But Watson does not present any evidence or argument showing that these
benefits derived from the Talia Appellees’ misappropriation of the value associated
with Watson’s name. These alleged benefits stemmed from the real estate
transactions themselves — not from his name’s reputation, prestige, or notoriety, or
from the transactions’ ability to capitalize on these qualities. See id. Accordingly,
these benefits do not constitute any evidence showing that Watson’s name was
misappropriated for the value associated with it. See Express One Int’l, Inc., 53
S.W.3d at 900 (“Texas law does not protect a name per se, but the value associated
with it.”).
Watson asserts in his reply brief that the Talia Appellees used his name in the
challenged real estate transactions because he “was anonymous in the real estate
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investing game,” thereby permitting the appellees to “underhandedly ‘lock-up’
valuable real estate properties for development.” This argument runs counter to the
showing necessary to avoid summary judgment on Watson’s misappropriation
claim.
The Talia Appellees’ no evidence summary judgment motion required
Watson to produce evidence showing that his name was misappropriated to take
advantage of his reputation, prestige, or other values. See Moore, 828 F.2d at 275.
Watson’s argument instead suggests that his name was misappropriated because it
lacks these attributes and could be considered “anonymous.” As in Cardiovascular
Provider Resources, Inc., this argument does not show that the Talia Appellees’
alleged misuse of Watson’s name had “anything to do with [Watson’s] unique skills
or reputation” — it instead suggests that Watson’s name was interchangeable with
that of any other “anonymous” individual. See 2015 WL 4914725, at *3.
Watson did not present any evidence or argument showing that his name was
misappropriated for the value associated with it. The Talia Appellees were entitled
to a no evidence summary judgment on Watson’s misappropriation claim.
II. Conspiracy
Concluding that Watson did not satisfy his summary judgment burden with
respect to his misappropriation claim, we also affirm summary judgment on
Watson’s derivative conspiracy claim.
There is no independent liability for civil conspiracy. Four Bros. Boat Works,
Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 668 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied). Civil conspiracy often is described as a “derivative tort”
because a defendant’s liability requires proof of his participation in another
underlying tort for which the plaintiff seeks to hold him liable. Wohlstein v. Aliezer,
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321 S.W.3d 765, 775 (Tex. App.—Houston [14th Dist.] 2010, no pet.). If summary
judgment is granted as to the underlying tort, summary judgment also must be
granted with respect to the derivative conspiracy claim. See id.
Watson asserted against the Talia Appellees a claim for misappropriation of
his name and a derivative conspiracy claim. Because we conclude that the Talia
Appellees were entitled to summary judgment on Watson’s misappropriation claim,
the appellees also were entitled to summary judgment on Watson’s derivative
conspiracy claim. See Wolhstein, 321 S.W.3d at 775; Four Bros. Boat Works, Inc.,
217 S.W.3d at 668.
CONCLUSION
We conclude that the Talia Appellees were entitled to summary judgment on
no evidence grounds. We need not address Watson’s other arguments on appeal.
We affirm the trial court’s April 7, 2017 order.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Busby.
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