Stephen W. Clark v. Dillard's Inc. and the Campbell Agency
460 S.W.3d 714
| Tex. App. | 2015Background
- Clark, a fashion model, sued Dillard’s and The Campbell Agency for misappropriation of likeness and unjust enrichment over packaging using his image from 1998–2011.
- Photographs were taken in 1998; Dillard’s paid the photographer who paid TCA, which paid Clark; later packaging used Clark’s image without additional payment.
- Packaging evolved from nose-to-waist views (2001–2002) to full-face images (Sept. 2005–Sept. 2011).
- Clark first became aware of use in 2009–2010 and filed suit Oct. 5, 2011; TCA sought summary judgment; court denied Clark’s summary judgment but granted others.
- Jury awarded Clark $9,000 for misappropriation (later excused as a mistake) and $4,500 for unjust enrichment; Dillard’s cross-appealed that the unjust-enrichment claim was time-barred; overall judgment reversed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Misappropriation of likeness and timeliness | Clark asserts misappropriation and seeks judgment on merits | Dillard’s argues misappropriation is time-barred and contested on summary judgment | Clark cannot appeal denial of summary judgment; issues on misappropriation addressed on merits |
| Injunctive relief, unfair practices, declaratory relief | Clark sought injunction and relief for unfair practices | Dillard’s moved for summary judgment on these claims | Trial court’s summary judgments upheld; Clark’s injunctive, unfair practices, declaratory relief claims rejected |
| Breach of fiduciary duty and agency against TCA | Clark claims TCA owed fiduciary duties as his agent | TCA contends no fiduciary relationship; no control over means/details | Court upheld summary judgment for TCA on agency grounds; no fiduciary duty established |
| Jury charge objections and preservation | Clark objected to jury questions 3 and 4 as incorrect/ inconsistent | Record fails to show timely objections were made | No preservation of error; issues not reviewed on appeal |
Key Cases Cited
- Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) (burden to prove limitations is on defendant; discovery rule absence)
- Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) (accrual generally; date determined as a matter of law)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (discovery rule limited to inherently undiscoverable injuries)
- S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (illustrates inherently undiscoverable injuries)
- Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) (discovery rule applicability and limitations)
- Hays v. Hall, 488 S.W.2d 412 (Tex. 1972) (illustrative of undiscoverable injury)