Affirmed and Opinion Filed August 23, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00001-CV
JAMIE CRUSE VRINIOS, Appellant V. MARY KAY, INC., Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-05560
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Pedersen, III In this case involving breach of contract, appellant complains the evidence is
legally and factually insufficient to support the jury’s answers to questions
concerning waiver and materiality of breach. We affirm the trial court’s judgment.
Background
Appellant Jamie Cruse Vrinios began her relationship with appellee Mary
Kay, Inc. as an independent beauty consultant. She eventually became a national
sales director (NSD) in appellee’s organization and signed an independent national
sales director agreement (the NSD agreement). The NSD agreement imposed certain “responsibilities” on appellant for a period of two years after its termination. The
NSD agreement was amended September 1, 2012.1 The amendment required
appellant, upon termination of her NSD agreement, to immediately delete or destroy
all personal information in her possession that she had received from appellee
regarding appellee’s beauty consultants and sales directors.
Additionally, appellant signed a family security program agreement (the FSP
agreement) that became effective December 1, 2002. The FSP agreement provided
that appellee would pay appellant monthly payments upon appellant’s retirement. It
imposed continuing obligations on appellant “for so long as [appellant] is entitled to
receive benefits under the Plan.”
In September 2017, appellee informed appellant that she had violated her
agreements and that it intended to terminate her NSD agreement on or before
December 31, 2017. Appellee notified appellant,
It is important that you immediately cease and desist from engaging in any and all activities that would constitute a breach of your agreements with the Company. These activities include, but are not limited to, the following: misusing Mary Kay independent sales force members’ personal information in violation of data privacy obligations; promoting your Magnificent Warrior and Crazy Like Foxes books (or any other materials not licensed through the Creative Works Program) to the Mary Kay independent sales force; promoting your daughter’s Kinbe business to the Mary Kay independent sales force;
1 We collectively refer to the NSD agreement and its September 1, 2012 amendment as “the NSD agreement.” –2– promoting Sarasota IV Lounge or any other treatment providers to the independent sales force; promoting the Jesus Alliance to the Mary Kay independent sales force and/or soliciting funds from the independent sales force for the Jesus Alliance; soliciting funds from the Mary Kay independent sales force for your personal expenses; inviting third parties to attend events with Mary Kay independent sales force in attendance and to solicit or promote third party products or services to the independent sales force at these events; misusing personal information of Mary Kay independent sales force members to invite them to non-Mary Kay related events; charging Mary Kay independent sales force members an excessive fee to participate in a Mary Kay educational or motivational event organized or led by you; misrepresenting the Mary Kay opportunity; pressuring Independent Beauty Consultants to purchase large amounts of inventory; using intimidation tactics to harass or intimidate members of the Mary Kay independent sales force; use of Mary Kay’s trademarks/trade name in the promotion of another business, organization, or in any manner not expressly permitted by the Company; disparaging Mary Kay Inc., Mary Kay Inc. employees and/or members of the Mary Kay independent sales force; engaging in business activities that are likely to damage Mary Kay’s reputation and goodwill. Appellant requested to be allowed to step down as NSD effective January 1,
2018, and to become eligible to receive FSP payments thereafter. Appellee agreed—
if appellant complied with conditions memorialized in an amended NSD agreement.
The amended NSD agreement reaffirmed “continuing obligations” from the NSD
–3– agreement and the FSP agreement. Section 5 of the amended NSD agreement
provided in part,
NSD [appellant] acknowledges and agrees that NSD’s ability to become eligible to receive payments under the Family Security Program is dependent and contingent upon NSD’s compliance with her obligations under the terms of this Amendment as well as the continuing obligations set forth in the NSD Agreement and Family Security Program Agreement as described herein. A breach of these material provisions will result in NSD forfeiting any right to payments under the Family Security Program[.]
On December 31, 2017, appellant stepped down from her position as an NSD
in accordance with the amended NSD agreement. Appellee made initial FSP
payments to appellant. On April 16, 2018, appellant sent an email to 6,642 persons,
most of whom were affiliated with appellee.2 On April 30, 2018, appellee delivered
2 The email in part stated,
Our third Health & Wellness podcast will be April 23rd at 12 PM EST, You won’t [sic] want to miss this continuing series on increasing your health awareness. Our second Health & Wellness podcast discussed chronic Illnesses like: fibromyalgla, auto-immune disorders, multiple sclerosis, arthritis, and so much more. John Monhollon, M.D. of the Florida Integrated Medical Center in Sarasota shared with us how living a healthier lifestyle and making smart choices can directly impact these diseases. This podcast has been posted to Jamie’s website www.jamievrinios.com. We hope you enjoyed it!
As we look forward to our next Health & Wellness podcast discussing Living an Optimal Lifestyle, we invite you to re-listen to our first two life saving podcast [sic] and share it with your friends and family!
Also, if you have specific needs and are interested in a one on one phone consultation with Dr. Monhollon, please email Jamie at JamieCVrinlos@aol.com. We will get you on his schedule promptly. Referrals from our podcast participants and seminar attendees will receive a discount and a series of B12 shots. When making your appointment through Jamie; [sic] provide the code 7777 and let them know you are a participant in the Health & Wellness podcast with Jamie Vrinios and Dr. Monhollon.
* * *
–4– a letter to appellant. The letter stated appellant had breached her NSD agreement,
FSP agreement, and amended NSD agreement by sending the April 16, 2018 mass
email to appellee’s sales force. It referred to the amended NSD agreement’s
forfeiture clause. The letter stated appellant’s participation in the FSP was “hereby
terminated” and that appellee would no longer make FSP payments to appellant.
Subsequently, appellee filed this lawsuit. Appellee alleged appellant’s
sending the April 16, 2018 email violated her agreements (a) not to promote,
distribute, or sell to other members of [appellee’s] sales organization, (b) not to
engage in recruiting [appellee’s] beauty consultants, sales directors, or national sales
directors, and (c) not to use any names, mailing lists, or other information that she
obtained during her association with [appellee]. Appellee sought damages and
injunctive relief. Appellant answered and filed a counterclaim. She asserted appellee
breached the FSP agreement by failing to make FSP payments to her. She sought
monetary and injunctive relief. Appellee in part answered that its nonperformance
of the FSP agreement was excused due to appellant’s waiver and prior material
breach.
A jury heard the case. In its answer to jury question 1, the jury found appellant
failed to comply with the NSD agreement by failing to delete or destroy all personal
Coming soon! We will be posting on Jamie’s site a link to purchase the supplements mentioned by Dr. Monhollon in this week’s podcast. Be sure to keep checking the JCV Must Have section of the website for details.
–5– information that she received directly or indirectly from appellee regarding
appellee’s independent beauty consultants, independent sales directors, and national
sales directors in her possession. In its answer to jury question 2, the jury found
appellant failed to comply with the FSP agreement by sending the April 16, 2018
mass email to appellee’s sales force. Moreover, the jury found in its answer to jury
question 3 that appellee failed to comply with the FSP agreement by failing to pay
appellant thereunder. However, in its answer to jury question 4, the jury found
appellee’s failure to comply with the FSP agreement was excused due to appellant’s
waiver. In jury question 5, the jury found appellee’s failure to comply with the FSP
agreement was excused by appellant’s previous failure to comply with a material
obligation of the FSP agreement. In answer to jury question 6, the jury found
appellee was not entitled to damages.
The trial court’s judgment provided that both parties take nothing. Appellant
filed a notice of appeal. This appeal followed.
Appellant’s Issues on Appeal
In her first issue on appeal, appellant argues the evidence is legally insufficient
or, in the alternative, factually insufficient to support the jury finding that she waived
appellee’s breach of the FSP agreement. In her second issue, appellant argues, the
evidence is legally or, in the alternative, factually insufficient to support the jury
finding that a prior material breach on her part excused appellee’s breach of the FSP
agreement.
–6– Standard of Review
When a party attacks the legal sufficiency of an adverse finding on an issue
on which it did not have the burden of proof, it must demonstrate on appeal that no
evidence supports the adverse finding. See Graham Cent. Station, Inc. v. Pena, 442
S.W.3d 261, 263 (Tex. 2014). We will sustain a legal sufficiency challenge if the
evidence offered to prove a vital fact is no more than a scintilla. See id. In evaluating
the legal sufficiency of the evidence to support a finding, we view the evidence in
the light most favorable to the finding, indulging every reasonable inference
supporting it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
“must credit favorable evidence if reasonable jurors could, and disregard contrary
evidence unless reasonable jurors could not.” Id. at 827. The “final test for legal
sufficiency” is “whether the evidence at trial would enable reasonable and fair-
minded people to reach the verdict under review.” Id. Proper legal-sufficiency
review prevents reviewing courts from substituting their opinions on credibility for
those of the jurors. See id. at 817–18.
In reviewing the factual sufficiency of the evidence to support a jury finding
for which the party did not have the burden of proof, we consider and weigh all of
the evidence and set aside the verdict only if the evidence that supports the finding
is so weak as to make the verdict clearly wrong and manifestly unjust. See Ins. All.
v. Lake Texoma Highport, LLC, 452 S.W.3d 57, 73 (Tex. App.—Dallas 2014, pet.
denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We defer to the
–7– jury’s implicit determinations of credibility and weight to be given to the evidence.
See Wise v. SR Dallas, LLC, 436 S.W.3d 402, 408 (Tex. App.—Dallas 2014, no pet.)
(citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).
Waiver
In appellant’s first issue on appeal, she argues, “[A]ppellee was not excused
from complying with its promises under the FSP under a waiver theory.” Appellee
responds that appellant waived any right to FSP payments by acknowledging and
agreeing in the amended NSD agreement that breach of the NSD agreement or the
FSP agreement would result in appellant’s forfeiture of FSP payments and by
subsequently not complying with the agreements. Appellee argues that appellant’s
sending the April 16, 2018 mass email to its sales force was conduct plainly contrary
to the NSD agreement and the FSP agreement.
The Forfeiture Provision Did Not Terminate December 31, 2017
Appellant initially contends the amended NSD agreement and its forfeiture
clause terminated on December 31, 2017, and was not in effect when her April 16,
2018 email was sent. Appellant maintains the amended NSD agreement—with its
forfeiture provision—is a “bridge” agreement intended to allow her to continue
working until she would retire on December 31, 2017 and to subsequently receive
FSP payments.
In response, appellee argues the amended NSD agreement, with its forfeiture
clause, contains no termination date and was in effect when appellant sent the April
–8– 16, 2018 email. It argues that even if the amended NSD agreement was a “bridge”
away from some past obligations, it also contained continuing obligations that did
not terminate on December 17, 2017.
Appellant mainly argues section 5 of the amended NSD agreement terminated
on December 31, 2017, because section 5 contains a sentence that “states the
requirements necessary for [appellant] to ‘become eligible’ for FSP benefits, not to
‘become and remain’ eligible.’” (Emphasis in original.) Appellant argues, “When
parties mean ‘become and remain eligible’ for benefits, they say so in their
agreement.” (Emphasis in original.) She relies on two opinions in support of that
argument. See Medvigy v. Metro. Life Ins. Co., No. H-08-2623, 2010 WL 518774
(S.D. Tex. Feb. 2, 2010); Whitehead v. Lee Enters., No. 4:12CV01302 ERW, 2013
WL 3542686 (E.D. Mo. July 11, 2013). In Medvigy, the district court held that a
divorced spouse seeking insurance benefits did not “remain eligible” to receive
benefits under the terms of insurance. See Medvigy, 2010 WL 518774, at *4 (the
certificate of insurance stated, “You and Your Dependents will only be insured for
the benefits: for which You and Your Dependents become and remain eligible.”). In
Whitehead, the district court held that at the time of his death, plaintiff’s husband
was not covered under a group life insurance plan and that no benefits were payable
to the plaintiff under the plan on his death. See Whitehead, 2013 WL 3542686, at *4
(the plan provided, “You will only be insured for the benefits: for which You become
and remain eligible; . . . and which are in effect.”). Although opinions from federal
–9– courts may be relied on as persuasive authority, Texas appellate courts are obligated
to follow only higher Texas courts and the United States Supreme Court. See
Builders FirstSource, Inc. v. White, No. 05-22-00724-CV, 2023 WL 2674083, at *2
n.1 (Tex. App.—Dallas Mar. 29, 2023, no pet.) (mem. op.) (citing Penrod Drilling
Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)). We do not find Medvigy or
Whitehead pertinent here. Those opinions—involving the federal Employee
Retirement Income Security Act and insurance provisions and coverage issues
involving a divorced spouse and a deceased person—are remote from the context,
issues, and contract provisions involved in this lawsuit.
Although appellant’s argument hinges on section 5’s three isolated words—
“to become eligible”—we must construe the amended NSD agreement as a whole.
See Nettye Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 639 S.W.3d 682, 690
(Tex. 2022). When construing contracts, our objective is to ascertain the true
intentions of the parties as expressed in the writing itself, beginning with the
instrument’s express language. See id. at 689. In doing so, we consider the entire
writing and attempt to harmonize the provisions so all are given effect and none is
rendered meaningless. See id. at 690. We afford contract language its plain,
grammatical, and ordinary meaning unless doing so would clearly defeat the parties’
intentions or the instrument shows the parties used the terms in a different or
technical sense. See id.
–10– Appellant’s argument fails to consider all the terms of the amended NSD
agreement that relate to whether the parties intended its forfeiture provision to
terminate on December 31, 2017. See id.; see also Austin Tr. Co. v. Houren, 664
S.W.3d 35, 42 (Tex. 2023) (“Contract terms cannot be viewed in isolation; each
provision must be considered in the context of the contract as a whole.”). For
example, section 4 of the amended NSD agreement provides, “NSD understands that
she must immediately come into compliance with the terms of her NSD agreement,
as amended herein, and must continue to comply with the terms through December
31, 2017, and longer as discussed in paragraph 5 below.” (Emphasis added.)
Additionally, section 5 of the amended NSD agreement provides that appellant
acknowledges and agrees to comply with obligations “set forth in her [NSD]
Agreement that survive termination of her [NSD] Agreement and the obligations set
forth in the Family Security Program agreement.” (Emphasis added.) The plain,
grammatical, and ordinary meaning of these provisions demonstrate an intent that
appellant’s obligations under the continuing obligations of the NSD agreement and
FSP agreement do not terminate on December 31, 2017, as appellant argues, but
instead continue in effect thereafter. See Nettye Engler Energy, LP, 639 S.W.3d at
690. Moreover, appellant’s argument would render “meaningless” the above-
emphasized terms of section 4 and 5. See id.; see TM Prods., Inc. v. Nichols, 542
S.W.2d 704, 708 (Tex. App.—Dallas 1976, no pet.) (a presumption exists that every
provision of a contract was included for a particular purpose, and courts must
–11– presume the parties intended every word to have meaning, effect, and purpose unless
it is plainly repugnant to the meaning of the overall contract).
Additionally, the amended NSD refers to the FSP agreement. Accordingly,
we construe the amended NSD agreement and the FSP agreement together to
determine whether the parties expressed an intent that the forfeiture provision of the
amended NSD agreement terminated December 31, 2017. See Gray & Co. Realtors
v. Atl. Hous. Found., Inc., 228 S.W.3d 431, 436 (Tex. App.—Dallas 2007, no pet.)
(instruments pertaining to the same transaction may be read together to ascertain the
parties’ intent). The FSP agreement’s sections 5.1 and 5.2 provide, “The first
payment of a Participant’s monthly . . . retirement benefit shall be made as of the
Participant’s . . . retirement date.”3 Additionally, section 10.2 of the FSP
agreement—addressing “continuing obligations”—states, “Participant agrees to
faithfully observe and comply with the following [continuing] covenants and
agreements for so long as Participant is entitled to receive benefits under the Plan[.]”
(Emphasis added.) Taken together, these FSP provisions express the intent that the
FSP agreement’s continuing obligations were ineffective until December 31, 2017,
when appellant retired, and became effective thereafter. Consequently, it would be
unreasonable to conclude that the parties intended the amended NSD agreement’s
forfeiture clause to terminate on December 31, 2017—just when appellant’s
3 As noted, appellant’s retirement date was December 31, 2017.
–12– obligation to observe the FSP agreement’s continuing obligations, expressly subject
to forfeiture under the amended NSD agreement, were to begin.
Notably, appellant’s “to become eligible” argument fails to squarely address
the language of the amended NSD agreement’s forfeiture provision, which states,
A breach of these material provisions [the amended NSD agreement, the continuing obligations of the NSD agreement, and the FSP agreement] will result in NSD forfeiting any right to payment under the Family Security Program agreement as described herein.
(Emphasis added.) The forfeiture provision does not express an intent that it
terminates December 31, 2017. Rather, we conclude the plain and ordinary language
of the forfeiture clause itself expresses the intent that appellant will not remain
eligible to receive FSP payments upon breach of, among other things, the FSP
agreement’s continuing-obligations provisions. See Nettye Engler Energy, LP, 639
S.W.3d at 689–90; Highland Credit Opportunities CDO, L.P. v. UBS AG, 451
S.W.3d 508, 523 (Tex. App.—Dallas 2014, no pet.) (a court may not write into a
contract terms the parties did not insert or add terms under the guise of construction,
nor may it construe the language in such a way as would distort the contract’s
apparent meaning). This conclusion harmonizes and gives effect to relevant
provisions of the amended NSD agreement and the FSP agreement described above.
See Nettye Engler Energy, LP, 639 S.W.3d at 690.
We adhere to the above-stated rules of contract construction and conclude the
amended NSD agreement can be given a definite and certain legal meaning. See id.
–13– We conclude as a matter of law that the forfeiture provision contained in the
amended NSD did not terminate on December 31, 2017, but instead remained in
effect at the time appellant sent the April 16, 2018 email.
Appellant Fails To Demonstrate Ambiguity
Appellant next asserts the amended NDS is ambiguous.4 Whether a contract
is ambiguous or not is a question of law. See id. A contract subject to more than one
reasonable interpretation is ambiguous, giving rise to a fact issue regarding the
parties’ intent. See id. If a contract has a certain and definite meaning, the contract
is unambiguous, and we will construe it as a matter of law and enforce it as written.
See id. Mere disagreement regarding contractual interpretation does not create
ambiguity. See URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 763 (Tex. 2018).
We disagree with appellant’s assertion that section 5 of the amended NSD
agreement is ambiguous. First, we concluded above that the amended NSD can be
given certain and definite meaning. Consequently, the amended NSD agreement is
4 Appellant states her ambiguity assertion in three sentences, as follows,
Finally, even if—assuming for the sake of argument only—Section 5 of the amended NSD agreement is ambiguous on whether forfeiture of FSP benefits is a remedy for breaches occurring after December 31, 2017, the evidence still does not support a finding that [appellant] intentionally relinquished a known right. Ambiguity means a contract provision is susceptible to two or more reasonable interpretations. Am. Mfrs. Mut. Ins. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Axiomatically, a party cannot be charged with knowing and understanding the legal consequences of an ambiguous contract clause—and thus intentionally relinquishing a known right by agreeing to it—if the clause is susceptible to one interpretation that results in a loss of the allegedly waived right and one that does not.
(Emphasis added.)
–14– not ambiguous, and we construe it as a matter of law and enforce it as written. See
Nettye Engler Energy, LP, 639 S.W.3d at 690. Second, we do not accept appellant’s
invitation to simply assume ambiguity. Appellant fails to argue why any specific
term of the amended NSD is subject to more than one “reasonable” interpretation
and therefore is ambiguous. See id. Instead of demonstrating ambiguity, appellant
presents mere disagreement about contractual interpretation. See URI, Inc., 543
S.W.3d at 763 (mere disagreement regarding contractual interpretation does not
create ambiguity).
The Evidence Sufficiently Supports the Jury’s Answer on Waiver
Appellant finally argues the evidence is legally insufficient or, in the
alternative, factually insufficient to support the jury’s answer on waiver.
Jury Question 4 asked,
Was [appellee’s] failure to comply with the FSP Agreement excused?
A failure to comply by [appellee] is excused if compliance is waived by [appellant].
Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.
Answer “Yes” or “No.”
Answer: Yes
We understand appellant to make two specific arguments. First, appellant
argues, “[A]s a matter of law, executing the NSD amendment did not waive Jamie’s
right to benefits under the FSP—the forfeiture clause no longer applied [after her
–15– retirement on December 31, 2017].” (Emphasis added.) However, we concluded
above that the forfeiture clause did not terminate December 31, 2017, and instead
remained in effect when appellant sent the April 16, 2018 email. Consequently,
appellant’s first argument is baseless.
Second, appellant argues the evidence “does not support” the jury’s waiver
finding because, “Axiomatically, a party cannot be charged with knowing and
understanding the legal consequences of an ambiguous contract clause—and thus
intentionally relinquishing a known right by agreeing to it—if the clause is
susceptible to one interpretation that results in a loss of the allegedly waived right
and one that does not.” However, we rejected above that appellant’s argument that
section 5 and its forfeiture clause were ambiguous. Consequently, appellant’s
insufficiency argument based on asserted ambiguity is groundless. Appellant makes
no additional argument concerning the legal or factual sufficiency of the evidence to
support the jury’s answer on waiver.
Nonetheless, we review the record under the above-stated standards of review
to determine whether the evidence is legally or factually insufficient to support the
jury’s answer to the waiver question. In the court below, the amended NSD
agreement and the FSP agreement were admitted into evidence. The amended NSD
agreement provided that appellant’s failure to comply with the FSP agreement’s
continuing obligations would result in forfeiture of FSP payments. Appellant
testified that she had read the amended NSD agreement’s forfeiture provision and
–16– that she understood the meaning of forfeiture. She acknowledged she understood
that once she retired as an NSD, she had to comply with the FSP agreement’s
continuing obligations “to remain” eligible to receive FSP payments. She testified
she understood that if she breached the FSP agreement’s continuing obligations, then
she would not be entitled to FSP payments. In addition, the jury found in its answer
to jury question 2 that appellant failed to comply with the FSP agreement by sending
the April 16, 2018 email. Because appellant does not argue the evidence was
insufficient to support the jury’s answer to Jury Question 2, this Court is bound by
it. See Hughes v. Pearcy, No. 03-10-00319-CV, 2014 WL 701453, at *6 (Tex.
App.—Austin Dec. 8, 2014, pet. denied) (mem. op.). Consequently, we conclude the
record contains some evidence that appellant waived the right to complain about
forfeiture of her FSP payments by (1) agreeing in the amended NSD agreement that
FSP payments would be forfeited if she failed to comply with the FSP agreement
and (2) subsequently failing to comply with the FSP agreement. See Graham Cent.
Station, Inc., 442 S.W.3d at 263. Moreover, we conclude the evidence supporting
the jury’s waiver finding is not so weak as to make the verdict clearly wrong and
manifestly unjust. See Ins. All., 452 S.W.3d at 73.
We overrule appellant’s first issue on appeal.5
5 Due to our disposition of appellant’s first issue on appeal, we need not and do not address appellant’s second issue on appeal. –17– Conclusion
We affirm the trial court’s judgment.
/Bill Pedersen, III/ BILL PEDERSEN, III 230001F.P05 JUSTICE
–18– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMIE CRUSE VRINIOS, Appellant On Appeal from the 116th Judicial District Court, Dallas County, Texas No. 05-23-00001-CV V. Trial Court Cause No. DC-18-05560. Opinion delivered by Justice MARY KAY, INC., Appellee Pedersen, III. Justices Partida- Kipness and Garcia participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee MARY KAY, INC. recover its costs of this appeal from appellant JAMIE CRUSE VRINIOS.
Judgment entered this twenty-third day of August, 2024.
–19–