*1 GRAHAM, Appellant, Michelle P. INC., Appellee. KAY
MARY
No. 14-98-01152-CV. Texas, of Appeals
Court (14th Dist.).
Houston
July *3 Barnett, Craddock,
Fritz John R. John Stevenson, Houston, Hart appellants. for Dallas, McCarty, John Francis Richard Houston, Sheehy, appellees. E. SEARS, LEE, Panel consists Justices and HUTSON-DUNN.* MAJORITY OPINION SEARS, (Assigned). A. ROSS Justice injunction Michelle appeals barring selling Mary Kay her from Cos- metics items at her retail locations. sought injunction, arguing Inc. only acquire Graham could inducing representatives sales * Sears, Lee, signment. Senior Justices A. Ross Norman sitting by D. Camille Hutson-Dunn as- business, with her and that agreements
breach their distribution with interfered agreements litigation instant sham constitut- Mary Kay. prohibit These at a ed later added a process. sale of cosmetics “retail” abuse She injunction and at- agreed permanent location. The trial court and en- claim for joined selling torney’s fees. Both sides moved for sum- acquiring judgment. In The trial court Mary Kay products mary granted this fashion. points judgment of error contends motion twelve granting granted erred both in Graham’s claims and against the trial court injunction permanent prohibiting overruling injunction and in her counter- her from tortiously interfering relationship claims that inter- between had consultants, enjoining and its fered with her business and sued *4 Mary Kay products from ac- selling bad faith. We affirm. her fashion, quired banning in her this FACTS AND PROCEDURAL Mary trademarked using any Kay from HISTORY in materials her business.
Appellee Mary Kay Cosmetics a man- ufacturer and distributor of cosmetic and STANDARD OF REVIEW under its own brand toiletry products judg party moving summary The for through It its products name. markets showing has of that no ment the burden Consultants,” Beauty who “Independent genuine of material fact exists and issue of and sell cus- work out their homes to as a matter judgment that it is entitled level, marketing a a personal tomers at 166a(c); v. of law. TEX.R. CIV. P. Nixon successfully pursued by com- scheme the Management Mr. 690 Property pany inception since its in 1963. (Tex.1985). 546, In decid S.W.2d 548-549 ing disputed a material fact issue whether beauty Mary Kay consul- Graham was the precludes summary judgment, review signed Beauty her Independent tant. She as all ing court will take true evidence Agreement in but was Consultant nonmovant; every the reasonable favoring in dis- company terminated 1991 when the in the will be inference from evidence Kay selling Mary covered she was cosmet- nonmovant, any in the dulged favor of her ics at a flea market. After termi- his Nix will resolved in favor. doubts nation, began buying cosmetics on, who 690 S.W.2d at A defendant beauty from current and sell- consultants conclusively least one of the negates at from cart them at flea markets and ing plaintiffs elements each of essential Through at Houston mall. her contacts summary is entitled to causes action distributors, with current Gra- Casas, 856 v. lists, judgment. Wornick Co. Kay price acquired Mary ham also (Tex.1993). If trial 733 S.W.2d Kay bags, Mary mar- shopping on which specify ground does not court brochures, training keting will summary judgment granted, we books, which admits she she videos grounds if asserted any affirm in used her retail business. v. Rogers movant are meritorious. action to re- brought this (Tex. Enters., 772 79 Ricane S.W.2d tortiously interfering strain Graham from 1989) beauty it with its with the contracts has summary both move for parties inducing them sell When (by consultants may non-prevailing party judgment, product) and their excess as motion (by using appeal prevailing party’s its infringing trademarks its Strauss, 745 as its own. Jones and train- well bags promotional shopping (Tex.1988). counterclaimed, party Each materials). 900 S.W.2d the movant carry as its own burden had the Texas must claiming Mary Kay violated mo Act, and, response party’s tortiously in the other Enterprise Antitrust Free tion, to breach willing as the non-movant. James v. Hitch sons who were this ISD, (Tex.App.— their agreement cock S.W.2d clause in and sell their denied). writ [1st Dist.] Houston As to Graham. Graham knew of review each of the sum we motions for this restriction because she been a mary consultant, judgment, indulge agreement all signed we reasonable selling inferences and all in favor resolve doubts and was terminated for cosmetics University non-movant. Tex. at a location. judg- retail The Big Carpet, Health Science Ctr. v. Train ment evidence showed that Graham ca- Inc., (Tex.1987). joled into these consultants con- her, all grounds summary judg they consider to sell to after tinuing even knew ment movant trial presented dealing Graham was breach of the. preserved Thus, court when properly appeal. their we find agreements. there Cates, Cincinnati Ins. Co. v. ample evidence of willful and inten- Life Graham, tional interference that these acts were essential to Graham’s conduct of We will first trial consider whether the business, and that properly granted Mary Kay relief harmed its own business and summary judgment proceeding. under the selling products. manner and method of will then *5 We consider whether trial properly Graham denied relief. Graham also contends that Mary However, to Kay prove damages. failed MARY KAY’S CLAIMS law, damage under Texas actual is not 1. Tortious Interference An required. injunction may granted be employer when the can provide proof of The trial court found that Graham “probable injury.” v. Sys Martin Linen tortiously interfered with Mary Inc., Hospitals tems 671 S.W.2d contractual with relations members its (Tex.App.-Houston no [1st Dist.] sales force. The elements of such an ac writ). an applicant Such must show a 1) tion are: the existence of a contract noncompensable injury there can 2) subject interference, to the occurrence legal be no real of damages, measure an act of interference that was willful none that can be determined with a suffi 3) intentional, act proximate was a degree cient Id. A certainty. company’s 4) cause of the plaintiffs damages, and clientele, goodwill, loss of marketing tech damage actual Holloway has occurred. v. niques, stability office the like are not Skinner, (Tex. 898 S.W.2d 795-796 value, easily assigned they a dollar but 1995); Victoria & Bank Trust Co. v. Bra qualify “probable injury” as for purposes dy, 811 S.W.2d injunctive relief. (quoting Id. David v. Graham first claims Mary Shields, Inc., Halsey Bache Stuart failed to show improper interference (Tex.App.-Houston S.W.2d 754 [1st Dist.] proximate cause. We disagree. Under writ). Injunctive may no relief also Mary Kay agreement, sales in a proper case which actual dam consultants did not have the sell right to See, Clubb, ages not. v. e.g., are Seelbach products to Graham for resale. This was 749 (Tex.App.-Texarkana sales organization direct and consultants pet. denied)(affirming injunction in where users, to the persons sold end not to in sufficient evidence precluded monetary tending to products. sign re-sell the By damages). damages Because these will agreement with Mary Kay, injunctive relief, support they satisfy the agreed consultants to sell direct to the requirement of in our damages case. We consumer. find court did err in granting the trial not The evidence showed that ac- summary judgment Mary Kay to on its tively sought Mary salesper- current tortious interference of action. cause argues clearly
Graham also that to seeks be identi Mary Kay fied with the to trademark and Kay’s sales are con agreements “at-will” for personal goodwill use benefit the that tracts, acting and that she was within organization has up been built over inducing legal rights Mary Kay’s years. It is hard to draw another consultants to disagree. deal her. We conclusion, given the fact that she used parties may tortiously Third not interfere brochures, Kay shopping bags, merely with a contract it is an at- because training videos in her business. The evi will contract. Sterner v. Marathon Oil stamp dence shows Graham even used a (Tex.1989); 767 S.W.2d Call frequent on her customer cards similar er-Times Pub. Co. Triad Communica Mary Kay the trademarked rose. There tions, 18, 21 (Tex.App.-Corpus testimony trappings was also these writ). Christi no Graham’s interest among caused confusion customers as in inducing Mary Kay salespeople ending long whether to leave and work for her. marketing prod standing policy against ability Their value their establishments, ucts left through retail get Mary Kay products continue to from some customers with the belief that Gra Mary Kay. They only could do that if their operating “Mary Kay ham was outlet contractual relations with were store.” object intact. The the interference was this claim Graham seeks to defeat therefore not in a switch in con inducing that, arguing selling gen because she was relations, in exploiting existing tractual but merchandise, she is insu uine contractual relations to Graham’s benefit disagree. liability. lated Fed (and detriment). We find eral distributors courts have found that privileged Graham’s claim that she was may selling genuine merchandise never *6 her conduct because of the “at-will” status a manufacturer’s misappropriate theless insupportable. of these contracts is trademark if use of the trademark misleading could the have the effect Competition/Trademark 2. Unfair man public relationship as to its the Violation Al Bandag Inc. v. Bolser’s ufacturer. (Fed.Cir. Stores, 903, Tire F.2d 911 750 To a claim for unfair establish Johnson, 1984); F.Supp. v. 587 Stormor competition based on unauthorized use a (W.D.Mich.1984). Here, in 275 name, plaintiff or a must trademark trade the and mar goodwill tended to trade on plaintiffs show that use of its trade name keting by Mary built up methods acquired secondary meaning, has a profit. years personal over the mark similarity that the or use of the We find that established name is such that the defendant’s use and unautho competition claim of unfair likely public. would be confuse the trade rized utilization of the Goen, 420, Hudgens v. 673 423 mark. the trial court did Therefore 1984, (Tex.App.-Fort Worth writ refd judgment. err granting n.r.e.). secondary A meaning means that Injunctive relief produc particular trademark identifies a public. er in the mind of Hanover the the trial Graham also contends v. Trail Manufacturing Co. Ed Hanover perma in granting court erred (Tex.1968). ers, Inc., 109, 111 434 S.W.2d injunctive Injunctive relief nent relief. idea protection “This stems form the basic applicant can demon proper where the repre 1) act; that a trademark or trade name wrongful strate: the existence of 3) up 2) harm; goodwill that has been built the sents imminent existence of 4) time, energy, money injury; of the user irreparable existence of remedy at law. adequate of an mark.” absence of the Id.
755
Co.,
Hues
814
petition govern
v. Warren Petroleum
Those who
th
526,
(Tex.App.-Houston
generally
[14
529
ment for redress are
immune
denied).
1991,
Injunctive
liability.
generally
writ
relief
Dist.]
antitrust
See
remedy
is an
v.
appropriate
when a claim
Eastern Railroad Presidents Conference
127,
Freight,
Noerr Motor
365 U.S.
81
tortious interference is involved. Trans
(1961).
523,
ble cause.
used
did
The trial court
not err
Moreover,
prosecu-
her malicious
because
appellant’s summary judg-
that
finding
fail,
of
her
process
tion and abuse
claims
to
proof
pre-
ment
failed
overcome this
injunctive relief also fails. We
claim for
sumption.
err in granting
find the trial court did not
Conspiracy
judgment on this
of action
cause
point of error.
appellant’s
and overrule
“a
conspiracy is
combina
Civil
by
persons
accomplish
tion
two or more
to
4.Slander
purpose
accomplish
an unlawful
or to
agents Mary
also contends
Appellant
by
lawful
means.” Mas
purpose
unlawful
per
against
se
her
Kay committed slander
sey v.
Armco Steel
a)
the mall
telling customers at
that she
(Tex.1983). Appellant’s
conspira
civil
illegal-
had
she sold
acquired
Mary
claim
on her
cy
hinges
assertion that
b)
her;
ly;
Mary
was
suing
that
suit
Kay’s
bringing
conduct
instant
c)
have her
going
was
to
wrongful.
Because we have found
jail.
put in
wrongful,
Kay’s suit was
lawful, appellant’s
purpose
that her
In order to be actionable without
conspiracy
claim for civil
cannot be sus
into one
damage,
must fall
proof of
slander
tained.
crime,
of a
categories:
imputation
of four
disease, injury
imputation of a loathsome
3. Abuse of Process
business,
office,
or
person’s
profession
also contends
calling,
imputation
or
of sexual misconduct.
filing of
lawsuit consti
this
Villasenor,
Villasenor v.
process.
disagree.
tutes an
abuse
writ).
1995, no
(Tex.App.-San
Antonio
comprise
Three
the tort of abuse
elements
In
affidavit attached
her brief and in the
(1) the
an
process:
defendant made
contends
pleadings, appellant
use
illegal, improper
perverted
or
of the
beauty consultants
Kay sales directors and
neither warranted nor au
process, a use
acquired
that she had
told her customers
(2) the
process;
thorized
defendant
and that
product illegally
purpose
or
in exer
ulterior motive
going
put
her and was
suing
cising
illegal, perverted
improper
such
true,
jail.
if
would
allegations,
These
(3) damage
process;
use of the
issue
to wheth
sufficient to raise a fact
as
act.
illegal
a result of such
plaintiff as
by agents
er
was slandered
(Tex.
Towber,
Bossin v.
id.;
(2d)
Mary Kay. See
Restatement
1994, writ de
App.—Houston [14th Dist.]
(1976).
question
§
cmt. c
The
Touts
nied).
critical
of this tort is
aspect
The
*8
Mary Kay can
then becomes whether
after it has
improper
process
use of
of its
vicariously
for the actions
held
liable
process is used
been issued.
Id. When the
in this instance.
“agents”
intended,
for the
for which it
purpose
accompanied by an ulterior
though
even
showing of affirmative
Without
motive,
process
of
occurs. Bau
no abuse
plaintiff
Kay which led
action
Vuitton, S.A.,
&
bles Beads
Louis
its em
were
believe its
consultants
(Tex.App.-Texarkana
378-378
S.W.2d
torts
Mary Kay not liable for the
ployees,
writ).
1989, no
Baptist
independent contractors.
of its
v,
Sys.
Sampson,
Hospital
Mem.
pro
claim for abuse of
Appellant’s
(Tex.1998).
945, 949
affidavit, in which
cess rests on her own
that,
disa-
argues
by failing to
if
expanded
Appellant
have
that she would
she stated
agents, Mary
the actions of its
uncertainty
her
vow
were
for
it
not
true,
constitute
held
If
this would not
ratified their conduct and can be
ha-
dise.
would
appellant
ble
But
not
because she
for it.
does
show tortious interference
steps Mary Kay
what affirmative
took to
to the
equal
superior right
have an
or
authority
clothe its
force in apparent
subject
agreement.
sales
See Vic-
matter of
they
making.
were
the statements
v. Brady,
Bank & Trust
toria
Also,
deposition
in
said her
appellant
(Tex.1991);
(Second)
Restatement
only
against Mary Kay are
claims
related
§
and
m and n
comments
ToRTS
to the
the instant
Thus we
filing of
suit.
(1979).
acknowledged
also
or-
Appellant
court
in granting
find the trial
did not err
Mary Kay,
dering products directly from
on
summary judgment
appellant’s slander
approval
this was with the
of Michelle
but
claim.
Ogden, marketing
supplied
director who
account
and the
appellant with her
number
CONCLUSION
any
under
In
numbers of consultants
her.
We find the trial court
not err in
did
case,
purchased,
once the
were
products
granting summary
injunc-
and
judgment
in
Mary Kay had no further interest
them.
tive relief in favor of
Inc.
The
Dr.
D.
Miles
Co.v. John
Park
See
Medical
judgment of the trial
affirmed.
373, 409,
& Sons
220 U.S.
31 S.Ct.
(1911).
light
Under judgment our at that record letters meeting, the contains we take all evidence to the favorable non- from directors and consultants to every movant and indulge as true reason- mall manager appellant where set able in inference the nonmovant’s favor. up shop, mall urging the to terminate Harris, Walker v. I that lease. a reasonable infer- believe I believe there are at least indulged ence should been have two in which a in instances fact issue arose sanction- coordinating fact this proceeding which should have summary judg- this activity, precluding precluded summary judgment. appellant’s ment on interference tortious counterclaim. judgment
While par- recites that the fact, stipulated ties there issue of was no I the law Finally, am convinced that agreement stipula- there is no written trademark The on is on side. guide agreement tion to us. With no of the nonmovant shows evidence favor us, guide presume agreed-upon we will only dealt provided by parties facts are the ones independent sold sales *9 appellate record. And this record is bags This includes shopping force. conflicting rife with facts. Ogden purchased books from which First, Ogden appel- sold deposition testimony appel- in her doctrine, that all Under first sale once a lant asserted she ever did was lant. publication product, local trademark owner sells his shoppers’ advertise buyer may product resell buy Mary ordinarily that she would merchan- original incurring under mark -without
any liability. NEC Electronics trademark Abco, F.2d
v. CAL Circuit
(9th Cir.1987). Furthermore, the first sale may even applies
doctrine when consumers believe the reseller is affiliated
erroneously producer. Se
with or authorized Stores, Longs Drug F.3d
bastian Int’l v. th(9 Cir.1995). I appellant- believe
may thus be immunized from trademark dealing
liability for in items which were however, Kay. by Mary agree,
sold I
appellant enjoined using can
trademark rose. against recourse is the sales consultants who
directors products. supply
chose to otherwise, I majority
Because the holds
respectfully dissent. FRIERMOOD, Appellant,
Blaien FRIERMOOD, Appellee.
Debbie B.
No. 14-99-00328-CV. Texas, Appeals
Court Dist.). (14th
Houston
July