Stephen W. Clark v. Dillard's Inc. and the Campbell Agency

• Court: Court of Appeals of Texas
• Decided: January 13, 2015
• Docket: 05-13-01503-CV
• Status: Published

Opinion

ACCEPTED 05-13-01503-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 1/13/2015 3:31:15 PM LISA MATZ CLERK

IN THE TEXAS COURT OF APPEALS FOR THE FIFTH DISTRICT AT DALLAS FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/13/2015 3:31:15 PM STEPHEN W. CLARK, § LISA MATZ Clerk § Appellant, § § v. § § No. 05-13-01503-CV DILLARD’S, INC. and § THE CAMPBELL § AGENCY, INC., § § Appellees. §

On Appeal from the 44th Judicial District Court of Dallas County, Texas Cause No. DC-11-12848

APPELLANT’S AMENDED OPENING BRIEF AND APPENDIX

KENNEDY LAW, P.C. Stephen A. Kennedy Texas Bar No. 11300425 1445 Ross Ave., Suite 4950 Dallas, TX 75202 Telephone: (214) 716-4343 Facsimile: (214) 593-2821

Counsel for Appellant

ORAL ARGUMENT REQUESTED

i IDENTITY OF PARTIES AND COUNSEL

Appellant tenders this list of all parties and counsel to the trial

court’s judgment to assist this court in determining qualification and

recusal under Rule 38 of the Texas Rules of Appellate Procedure:

Appellant: Stephen W. Clark

Counsel in the Court of Appeals: Stephen A. Kennedy KENNEDY LAW, P.C. 1449 Ross Ave., Suite 4950 Dallas, TX 75202

Kristen E. Knauf KENNEDY LAW, P.C. 1449 Ross Ave., Suite 4950 Dallas, TX 75202

Counsel in the Trial Court: John B. Rizo, Sr. LAW OFFICE OF JOHN B RIZO, SR. 3214 Samuell Blvd. Dallas, TX 75223

Kenneth P. Kula Kennedy Clark & Williams, P.C. 1700 Pacific Ave., Suite 1280 Dallas, TX 75201

Appellant’s Amended Opening Brief and Appendix ii Appellee: Dillard’s, Inc.

Counsel in the Trial Court and Court of Appeals: Ophelia Camina Susman Godfrey LLP 901 Main St., Suite 5100 Dallas, TX 75202-3775

Counsel in the Trial Court David D. Wilson Friday, Eldredge & Clark 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201-3522

Patricia A. Nolan The Law Offices of Patricia A. Nolan 1701 N. Market Street Suite 200, LB 42 Dallas, Texas 75202

Appellee: The Campbell Agency, Inc.

Counsel in the Court of Appeals: Brian A. Sheguit The Bassett Firm Two Turtle Creek Village 3838 Oak Lawn Ave, Suite 1300 Dallas, TX 75219

Counsel in the Trial Court:

Michael J. Noordsy The Bassett Firm Two Turtle Creek Village 3838 Oak Lawn Ave, Suite 1300 Dallas, TX 75219

Appellant’s Amended Opening Brief and Appendix iii J. Andrew Robertson The Bassett Firm Two Turtle Creek Village 3838 Oak Lawn Ave, Suite 1300 Dallas, TX 75219

Trial Court Judge:

Hon. Eric V. Moyé 14th Judicial District Court, Dallas County, Texas

Hon. Carlos Cortez 44th Judicial District Court, Dallas County, Texas

Appellant’s Amended Opening Brief and Appendix iv TABLE OF CONTENTS

Table of Contents ...................................................................................... v I. ISSUES PRESENTED FOR REVIEW ........................................................ 1 II. STATEMENT OF FACTS ....................................................................... 2 III. ARGUMENT ........................................................................................ 7 A. THE COURT ERRED IN DENYING CLARK’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON MISAPPROPRIATION OF LIKENESS. .............. 7 1. Standard of Review .................................................................... 7 2. Appellant Established that He was Entitled To Summary Judgment as a matter of law.......................................................... 9 a. Defendants appropriated Clark's likeness for the value associated with it ........................................................................... 10 b. It is undeniable that Clark can be and is identified through the publication ................................................................ 13 c. Appellants obtained a benefit from appropriating Clark's likeness ............................................................................................. 14 B. THE COURT ERRED IN GRANTING IN PART DILLARD’S MOTION FOR SUMMARY JUDGMENT, DISPOSING OF SEVERAL CLAIMS AND REMEDIES FOR DAMAGES. ..................................................................... 16

C. THE COURT ERRED IN GRANTING TCA’S MOTION FOR SUMMARY JUDGMENT, DISMISSING IT FROM THE CASE. ........................................ 22

1. The District Court Erred By dismissing TCA on arguments that TCA did not advance in its Disclosures. ...... 23 2. Issues Concerning Breach of Fiduciary Duty..................... 24 3. Issues Pertaining to Breach of Contract Claim ................. 27 4. Issues Pertaining to the Statute of Limitations and Laches Affirmative Defenses ....................................................... 28

Appellant’s Amended Opening Brief and Appendix v 5. TCA Has Failed to Carry its Burden as to The Discovery Rule. .................................................................................................. 32 D. IT WAS ABUSE OF DISCRETION TO CONSTRUCTIVELY STRIKE APPELLANT’S EXPERT THE DAY BEFORE TRIAL. ................................... 33 1. Dillard’s First Motion to Strike Plaintiff’s Expert ............. 34 a. Plaintiff Timely Identified Dr. Sealey .................................. 35 b. No Expert Report Could Be Generated................................ 37 c. The Standard in Texas for the Admission of Expert Opinion Evidence ........................................................................... 38 d. The Qualifications of Dr. Peter Sealy ................................... 38 2. Dillard’s Second Motion to Strike Plaintiff’s Expert ........ 40 E. THE COURT FAILED TO TAKE JUDICIAL NOTICE OF PAST PLEADINGS. ........................................................................................... 40

1. The Campbell Agency’s Motion for Summary Judgment . 42 2. The Motion for Summary Judgment Granted in the Henley Litigation ........................................................................... 44 F. DESPITE APPELLANT’S CLEAR PLEA FOR ANY AND ALL DAMAGES PERMISSIBLE UNDER TEXAS LAW THE COURT REFUSED TO CONSIDER DISGORGEMENT OF PROFITS. ................................................................ 45

G. THE COURT OVERRULED APPELLANT’S OBJECTIONS TO JURY QUESTIONS THAT WERE INCORRECT AS A MATTER OF LAW AND WERE INTERNALLY INCONSISTENT. ................................................................. 46

Conclusion ............................................................................................... 48 Certificate of Service ............................................................................... 50

Appellant’s Amended Opening Brief and Appendix vi I. ISSUES PRESENTED FOR REVIEW

On July 16, 2013, the Court called this case for trial; the parties

closed the evidence on July 18, 2013; and, on July 19, 2013, the jury

returned a verdict. The Court entered a Final Judgment on August 5,

2013.1 In the Final Judgment, the Court entered judgment for

Appellant, Stephen Clark (“Appellant” or “Clark”) on his unjust

enrichment claim which resulted in an actual damages award of $4,500.2

The Court ordered that Clark take nothing on his misappropriation of

likeness claim against Dillard’s Inc. (“Dillard’s”). 3 Clark filed a Motion

for New Trial on August 30, 2013. 4 After oral argument The Motion for

New Trial was denied on October 2, 2013. 5

The issues presented for appeal fall into two categories: rulings by

the district court on summary judgment motions, which are evaluated

under a de novo standard, and rulings made on specific motions issued

prior to and during trial, which are considered under an abuse of

discretion standard.

1 Final Judgment, Appendix at 2249; 2 CR 514-516. 2 Id. 3 Id. 4 Plaintiff’s Motion for New Trial, Appendix at 2139; 2 CR 589-695. 5 Order re: Motion for New Trial, Appendix at 2247; 2 CR 729.

1 The de novo issues subject to this appeal include the trial court’s

rulings (1) denying Plaintiff’s motion for summary judgment on

misappropriation of likeness, (2) granting in part two of Dillard’s motions

for summary judgment dismissing several claims from the suit, and (3)

granting TCA’s motion for summary judgment, dismissing it from the

case.

The other issues involve (1) the district court’s decision to strike

Clark’s damages expert the day before trial because he failed to provide

an expert report, which is not required under the Texas Rules, (2) failing

to take judicial notice of three matters relevant to enhanced damages,

and (3) issuing inconsistent and incorrect jury instructions on the issue of

misappropriation of likeness.

II. STATEMENT OF FACTS

This is a case about an international model whose images were

used by a department store as the face of its men’s underwear package.

In that situation, the model’s agent communicates directly with the

model to determine whether the model is available and is willing to

accept the booking. The model is paid two fees: a “day rate” for a photo

shoot, and additional compensation for specifically enumerated usage

Appellant’s Amended Opening Brief and Appendix 2 rights, which are released to the client. The usage rights are documented

in writing. The model may use a one-page carbon paper “voucher” to

release specific rights to use his image. The voucher includes a number of

individual and specific usage rights available for selection by the model.

The usage rights that the model may select include fashion shows,

billboards, point of purchase, informal, national ad and product

packaging. In other instances, a multipage contract is used to secure the

model’s release. Examples of a voucher and multipage contract are

attached in the Appendix. 6

In addition to securing the model’s release, the client must get a

second release from the photographer, who owns the copyrights to the

photography. The photographer typically sends an invoice to the client

for the copyrights released. The invoice includes a release valid upon

payment of the invoice. An example of the second invoice is part of the

Appendix.7

In this controversy, and as explained more fully below, Clark, was

the model,8 The Campbell Agency, Inc. (“TCA”) was the agency, 9 the

6 Appendix at 1631 and 1466; 1 CR 847, 1536 7 Appendix at 1066; 1 CR 678. 8 Appendix at 142; CR Supp Vol. 3 at 43-44.

Appellant’s Amended Opening Brief and Appendix 3 client was Dillard’s 10 and the photographer was Mollie McKool

Photography, Inc. (“McKool”)11

For the better part of two decades, Clark had a successful career

that took him across the globe. 12 His livelihood depended on third parties

paying him for specific usage rights for his image to sell clothing, men’s

fragrances, and related personal accessories. 13 Within the first few years

of his career, Clark was hired to model in advertising campaigns for high

profile clients such as J. Crew, Giorgio Armani, Christian Dior, and

Chanel. 14 Additionally, he worked with some of the most respected

photographers in the world, including Patrick Demarchilier, Karl

Lagerfeld, Aldo Fallai, Victor Skrebneski, Aldo Rossi and Neil

Kirksuch. 15 Further, Clark was the face of Hanes underwear pursuant to

a multipage agreement for product packaging with Hanes. 16

TCA is a talent agency that represents models, actors and other

9 Appendix at 143; CR Supp Vol. 3 at 43-44. 10 Id. 11 Appendix at 368, 968; CR Supp Vol.2 at 52, 1 CR 580. 12 Plaintiff’s Response to The Campbell Agency’s Traditional and No-Evidence Motion

for Summary Judgment dated November 26, 2012, App. at 876; 1 CR 488. 13 Appendix at 875; 1 CR 487. 14 Id. and 1536 – 1590; 1 CR 487, RR Vol. 12 at 24-85

15 Appendix at 875; 1 CR 487. 16 Id. and Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary

Judgment, App. at 1466; 1 CR 487, 1536. Appellant’s Amended Opening Brief and Appendix 4 artists who work in commercial print, broadcast television, and other

forms of media and advertising. 17 In 1997, Clark began using TCA as his

talent agent. 18 Approximately one year later, in September 1998,

Dillard’s, one of TCA’s clients, wanted Clark to model men’s underwear

under the product name Roundtree and Yorke. 19 Clark attended but did

not execute any written release for usage rights. During this photo

shoot, Clark modeled various styles of men’s underwear and

undershirts20 and was paid his day rate for this photo shoot. He did not

receive any additional usage fee for the resulting photographic images. 21

A couple of years after the photo shoot, Clark moved to Paris, France and

worked in, among other places, South Africa, Italy, Japan, Spain and

Germany. 22 Following his move, Clark resided outside of the U. S.

consistently until 2009 and did not visit any of Dillard’s stores during his

infrequent trips to the U. S. for photo shoots or to visit family. 23 Dillard’s

does not have any stores located outside the United States. 24

17 Deposition of Nancy Campbell, Appendix at 568; 1 CR 697 at 20. 18 Affidavit of Stephen Clark, Appendix at 143; CR Supp Vol. 3 at 43-46. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. See also, Deposition of Stephen Clark, Appendix at 383; CR Supp Vol 2 at 67. 24 Affidavit of Mike McNiff, Appendix at 970; 1 CR 578- 580.

Appellant’s Amended Opening Brief and Appendix 5 In approximately November 2009, Appellant was informed by a

friend via Facebook that Dillard’s was using Clark’s image of the

underwear photos taken in 1998. The images appeared on packaging for

Dillard’s in-house brand of men’s underwear without Clark’s knowledge

or compensating him. 25 Because TCA was Clark’s agent at the time the

photographs were taken, Clark asked TCA to contact Dillard’s to resolve

the matter.26 Industry protocol required Dillard’s to pay Clark for usage

rights and to pay TCA for its commission. 27 TCA refused to defend

Clark’s rights adverse to Dillard’s, breaching fiduciary and/or contractual

duties and industry protocols. 28

Clark did not agree that Dillard’s or any party could use his image

for product packaging. 29 Nor did he execute any usage agreement, release

or other document with any of the parties involved in the photoshoot,

including TCA, Dillard’s or McKool. 30 Other than his day rate for

appearing for the modelling session, Clark was never paid a usage fee for

25 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47. 26 Deposition of Nancy Campbell, 72:20-73:5, App. at 438; 1 CR 710. 27 Deposition of Nancy Campbell, 76:11-25, App. at 439; 1 CR 711. 28 Appendix at 143-144; CR Supp Vol. 3 at 45-46. 29 Appendix at 413 and App. at 1640 ¶ 8; 1 CR 550; 1169. 30 Id.

Appellant’s Amended Opening Brief and Appendix 6 his images by any party. 31 The images used include Clark’s face and torso

on product packaging for men’s underwear garments. 32

III. ARGUMENT

A. THE COURT ERRED IN DENYING CLARK’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON MISAPPROPRIATION OF LIKENESS.

1. Standard of Review

An appellate court reviews a summary judgment de novo to

determine whether a party’s right to prevail is established as a matter of

law.33 Summary judgment is proper when the movant establishes that

there is no genuine issue of material fact and that the movant is entitled

to judgment as a matter of law. 34

As explained more fully below, Clark filed his Motion for Partial

Summary Judgment on May 25, 2012 on the issue of misappropriation of

his likeness. 35 In response to Clark’s Motion, Dillard’s argued that Clark

was not entitled to summary judgment because he could not establish

that the misappropriation was not incidental, there was no value

31 Id. ¶ 9; 1 CR 1169. 32 Appendix at 997-1007;1 CR 605-620. 33 Tex. Integrated Conveyor Sys. v. Innovative Conveyor Concepts, 300 S.W.3d 348,

365; See also Chappell v. Allen, 414 S.W.3d 316, Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211. 34 Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). 35 Plaintiff’s Motion for Partial Summary Judgment, App. at 102; CR Supp Vol. 3 at 4.

Appellant’s Amended Opening Brief and Appendix 7 associated with his image because he is not a celebrity, and because the

public at large would not recognize him absent celebrity status or proof of

actual recognition. 36 Dillard’s arguments were misleading however,

because there was and is value associated with Clark’s image, and

neither celebrity-status nor wide-spread recognition are required under

the law. Further, Clark had alleged actual recognition.37

Dillard’s further alleged Clark consented to the use on product

packaging38 but could not produce a release evidencing this position.39

There are no documents supporting that Clark released his right of

publicity and no testimony from anyone with personal knowledge that he

ever signed a release. To further support this flawed argument, Dillard’s

misused Clark’s deposition testimony, failing to use the corrected version

of his transcript. 40 The unsigned and uncorrected transcript had several

errors which were corrected by the witness. Dillard’s quoted the

uncorrected version of the transcript, attempting to use errors in the

transcript to create a fact issue on when Clark first learned of the use of

36 Appendix at 169; CR Supp Vol. 2 at 6 37 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47. 38 Appendix at 177-178; CR Supp Vol. 2 at 14-15. 39 Trial Transcript, Vol 8, 188:1-11, App. at 93; RR 8 at 188. 40 Appendix at 174; CR Supp Vol. 2 at 11.

Appellant’s Amended Opening Brief and Appendix 8 his image. 41 Clark did not see the image in 1999 as Dillard’s claimed;

had Dillard’s quoted the deposition transcript as corrected this issue

would not have been a matter requiring consideration by the lower court

or this court of appeals. 42

Nevertheless, based on the above, the district court erred as it

relied on Dillard’s invalid arguments and, in doing so, denied Clark’s

motion. 43 Because Clark established that there is no genuine issue as to

any material fact concerning Appellees misappropriation of his likeness,

he was entitled to judgment as a matter of law.

2. Appellant Established that He was Entitled To Summary Judgment as a matter of law

Under TEX. R. CIV. P. 166a(c), a plaintiff is entitled to

summary judgment if:

(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any

41 Id. 42 Clark Deposition at 136: 15-16 App. at 393 and errata sheet dated August 13, 2012, App. at 2258 and 1357; 1 CR 532. 43 Order dated September 7, 2012, App. at 55-56; 1 CR 401.

Appellant’s Amended Opening Brief and Appendix 9 material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion . . . .” 44

In order to establish misappropriation of likeness, Clark must

show: “(1) that Dillard’s appropriated Clark’s . . . likeness for the value

associated with it, and not in an incidental manner or for a newsworthy

purpose; (2) Clark can be identified from the publication; and (3) there

was some advantage or benefit to Dillard’s.” 45

a. Defendants appropriated Clark's likeness for the value associated with it

“The threshold issue to determine in analyzing this element is

whether Defendant[s] actually appropriated [Clark’s] name or

likeness.” 46 The photographs of Clark on the Infringing Packaging are

clear and Defendants do not dispute that Clark’s images are on the

Infringing Packaging. Based thereon, “the Court [must] conclude[] that

there is no genuine fact issue in dispute as to whether Defendant[s]

appropriated Plaintiff’s . . . likeness.” 47

44 TEX. R. CIV. P. 166a; See also State Farm Fire and Cas. Co. v. Vaughan, 968 S.W.2d 931, 932 (Tex. 1998); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548– 49 (Tex. 1985). 45 See generally, Henley v. Dillard Department Stores, 46 F. Supp. 2d 587, 590

(citation omitted) (N.D. Tex. 1999). 46 Id. at 591. 47 Id. at 592.

Appellant’s Amended Opening Brief and Appendix 10 Dillard’s argued that Clark consented to the use of his image because he

agreed to pose for the photos and because the photographer released her

photographic copyrights in the images. 48 But Appellants have not and

cannot produce any documentation to show that Clark assigned the

rights to his image to Dillard’s or the photographer. 49 Because the

photographer did not hold Clark’s right to publicity, she could not

transfer it to Dillard’s. As for the right of publicity, Clark never

consented to the use of his image on product packaging, let alone the

ongoing use over several years. 50

“The second issue the Court must resolve is whether Defendant[s]

appropriated Plaintiff’s name or likeness for the value associated with it,

and not in an incidental manner.”51 It is disingenuous for Dillard’s to

argue that the use of Clark’s image was incidental and not for the value

associated with it.52 The record reflects that Mr. Clark was the face of

48 Dillard’s Opposition to Plaintiff’s Motion for Partial Summary Judgment dated July 30, 2012, App. at 170; CR Supp Vol. 1 at 7 49 Trial transcript of Dean Worley, App. at 93; Affidavit of Mollie McKool, App. at

1190 ¶7 and 1192 ¶ 18-19; 1 CR 802; 804. 50 Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary

Judgment, App. at 1640 ¶8;1 CR 1169. 51 Henley, 46 F. Supp. 2d at 592. 52 Id.

Appellant’s Amended Opening Brief and Appendix 11 Chanel 53 and a favorite of Giorgio Armani. 54 He appeared as James Bond

in Bazaar’s Magazine, 55 and was the face for Hanes underwear,

appearing on Hanes’ product packaging. 56 Having a couture model

appear on product packaging, or in a national advertising campaign is

more valuable and more expensive than using a model with lesser

credentials. This is the case with Dillard’s. Using Clark’s image would

require appropriate compensation, such as the compensation paid by

Hanes for Clark’s product packaging for men’s underwear garments. By

its very nature, the “purpose of advertising is to persuade a consumer to

purchase a particular product.” 57 Thus, there is value inherently

associated with the images used on advertising. In fact, Dillard’s has

previously admitted through its Vice President of Sales Promotion that

with respect to advertising or packaging, the “chief importance” is “the

visual presentation of information.” 58 This is the very reason Dillard’s

chose these photos for its packaging and continued to use them in excess

53 Trial Transcript, Vol. 8 at 30:5-7 and 143:16-144:8, App. at 89 and 91-92; RR 8 at 30, 143-144. 54 Id. at 27:1-9, App. at 88; RR 8 at 27. 55 Id. 56 Deposition of Stephen W. Clark, July 10, 2012, at 77:13-15, App. at 379; 1 CR 518. 57 Christoff v. Nestle USA, Inc., 62 Cal. Rptr. 3d 122, 132 (Cal. Ct. App. 2007). 58 Henley, 46 F. Supp. 2d at 593.

Appellant’s Amended Opening Brief and Appendix 12 of six years. Thus, Clark’s image on the Infringing Packaging was clearly

and indisputably appropriated for the value associated with it.

b. It is undeniable that Clark can be and is identified through the publication

The Infringing Packaging clearly displays Clark’s face. Mr. Clark is

recognizable to friends, family, other models, and agents. Contrary to the

Appellant Dillard’s misleading assertions, which were relied upon by the

trial court, there is no requirement that the misappropriated image be

widely recognizable, a household name or of celebrity status. 59 “To

establish liability, plaintiff need prove no more than that he or she is

reasonably identifiable in defendant’s use to more than a de minimus

number of persons.” 60 Because Clark’s face is plainly visible, any number

of people who know him personally or are familiar with his other

modeling work can easily recognize him. As mentioned above, Clark

discovered Dillard’s use precisely because a friend recognized him on

Roundtree & Yorke packaging and brought it to his attention. 61 But this

is not to say that Clark was only recognizable to his close friends and

59 Dillard’s Opposition to Plaintiff’s Motion for Partial Summary Judgment dated July 30, 2012, App. at 167; CR Supp Vol 1 at 4-6. 60 Henley, 46 F. Supp. 2d at 595 (quoting McCarthy, 1 The Rights of Publicity &

Privacy § 3.2 (1998)). 61 Trial Transcript, Vol. 8 at 47:16 - 24, App. at 90; RR 8 at 47.

Appellant’s Amended Opening Brief and Appendix 13 family. Clark testified at trial that he had been recognized for his work

with Chanel,62 and the advertisement for Chanel was framed and hung

in office of his agent, Nancy Campbell of the Campbell Agency. 63 Clark

has shown that he is reasonably identifiable in the image used by

Dillard’s. Consequently, there is no genuine issue as to whether Clark’s

likeness can be identified from the publication or Infringing Packaging.

c. Appellants obtained a benefit from appropriating Clark's likeness

Dillard’s cannot legitimately claim that it did not obtain an

advantage or benefit from using Clark’s likeness, nor do they dispute it in

their Opposition to Plaintiff’s Motion for Partial Summary Judgment. 64

Dillard’s does not dispute the benefit derived from using Clark’s image,

so there is no dispute as to material facts concerning the benefit derived

by Appellants.

For more than a decade, Dillard’s attracted customers and sold

merchandise based on Clark’s image. As Judge Solis observed in a

similar case against Dillard’s for the misappropriation of another

individual’s name or likeness: “[O]ne of the primary purposes of

62 Trial Transcript, Vol. 8 at 143:16-144:8, App. at 91-92; RR 8 at 143-144. 63 Id. at Vol. 7, 177:24 – 178:5, App. at 85-86; RR 7 at 177-178. 64 Appendix at 167; CR Supp Vol 1 at 4.

Appellant’s Amended Opening Brief and Appendix 14 advertising is to motivate a decision to purchase a particular product or

service. The first step toward selling a product or service is to attract the

consumers’ attention.’” 65 But the benefit received from Dillard’s does not

even have to be monetary or financial: Clark simply needed to prove that

Appellants “derived some commercial benefit from the use of [Appellee’s]

name or likeness as opposed to deriving no commercial benefit.”66

Although Dillard’s most likely made millions of dollars in profits from the

sales of the Roundtree & Yorke underwear in the Infringing Packaging, it

need not have made a dime in order for Appellants to have derived a

benefit from the misappropriation of Clark’s image. “If a defendant

appropriates a plaintiff’s name or likeness for his own commercial

advantage, he necessarily derives a benefit from its use.” 67 The court in

the other Dillard’s misappropriation case went on to explain that “[t]he

plaintiff in a right to publicity action is not required to show that the

defendant made money off the commercial use of the name or likeness.” 68

Rule 166a clearly states:

65 Henley, 46 F. Supp. 2d at 594 (quoting Newcombe v. Adolf Coors Co., 157 F.3d 686, 693 (9th Cir.1998)). 66 Id. at 596 (citing Restatement (Second) of Torts § 652C cmt. d). 67 Id. 68 Id.

Appellant’s Amended Opening Brief and Appendix 15 The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, . . . show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion . . . .” 69

It is undisputed that Dillard’s obtained a long-term benefit from its

misappropriation of Clark’s image. As stated above, there were no

material issues of fact regarding Dillard’s misappropriation of Clark’s

likeness. The trial court erred when it relied on Dillard’s misleading and

invalid arguments and denied Appellant’s Motion for Partial Summary

Judgment as to Defendant’s Misappropriation of Likeness. Therefore,

this Court should reverse the lower court’s ruling and grant judgment in

favor of Appellant as a matter of law.

B. THE COURT ERRED IN GRANTING IN PART DILLARD’S MOTION FOR SUMMARY JUDGMENT, DISPOSING OF SEVERAL CLAIMS AND REMEDIES FOR DAMAGES.

In its December 27, 2012 Order, the trial court created a triad of

reversible errors by granting in part Dillard’s Motion for Summary

Judgment on the issues of injunctive relief, unfair business practices, and

69 TEX. R. CIV. P. 166a(c) (emphasis added). Appellant’s Amended Opening Brief and Appendix 16 declaratory relief. 70 Like this Court’s review of the trial court’s denial of

Plaintiff’s Motion for Partial Summary Judgment, the rulings of the trial

court on Dillard’s Motions for Partial Summary Judgment are evaluated

under a de novo standard of review.71

First, the trial court erred by ruling in favor of Dillard’s on its

Traditional and No Evidence Motions for Summary Judgment with

respect to Clark’s request for injunctive relief. Dillard’s argued that it

does not intend to use Clark’s image on product packaging in the future.

Yet this argument fails to account for the fact that a request for a

permanent injunction should be decided only after a plaintiff has proven

a defendant’s liability. Dillard’s statement is neither evidence nor an

enforceable promise that Dillard’s will not, in fact, repeat their unlawful

conduct. But by choosing to adopt Dillard’s unsupported statement of

intent, the trial court robbed Clark of his right to seek injunctive relief

after a trier of fact decides the liability issues.

Second, the trial court erred by ruling in favor of Dillard’s on

Clark’s claims of unfair business practices. In Plaintiff’s Second Amended

70 Order on Dillard’s Traditional and No Evidence Motions for Summary Judgment filed November 27, 2012 and November 30, 2012 (dated December 27, 2012), App. at 61-62; 1 CR 1121. 71 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003);

Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Appellant’s Amended Opening Brief and Appendix 17 Petition, Clark pleaded in the alternative to his claim of

misappropriation of likeness that Defendants’ conduct constituted an

unfair business practice. The theory is that unless there was an

agreement between Clark and the Defendants allowing for the use of

Clark’s image on packaging – which there was not – then Defendants

acquired the right to use Clark’s images through some means other than

Clark’s express consent. These alternative means constitute an unfair

business practice.

There is no evidence to support the existence of a contract –

written, oral, or otherwise – between Clark and Defendants. What the

evidence does show, however, is that Dillard’s was able to use the

Infringing Packaging for 10 years without having to pay for the use of

Clark’s image neither initially, nor after a term of years as a renewal, nor

as any kind of increase over time as is typical in the industry. 72 Clark

suffered damages not only from these lost wages, but also by losing the

opportunity for publicity and exposure that otherwise could have resulted

from an advertising campaign lasting over 10 years.

72See Affidavit of Stephen W. Clark dated Sept. 14, 2012, Ex. 9 to Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary Judgment, App. at 1886 ¶14. 1 CR 486-490; 489. Appellant’s Amended Opening Brief and Appendix 18 Dillard’s urged the trial court to hold that it had the rights to use

Clark’s image in any manner by virtue of timely paying its invoice to

McKool. But McKool Photography could not transfer rights that it never

possessed, and Clark never gave any publicity rights to McKool to be

transferred. 73 Therefore, even if this Court agrees with Dillard’s

argument, it must also acknowledge that Clark’s rights were transferred

without his knowledge or consent. This unauthorized transfer of Clark’s

rights deprived him of control of his image for business purposes,

prevented his benefitting from the use of that image and also from

earning fees to which he was otherwise rightfully entitled.

Finally, the trial court erred by granting Dillard’s summary

judgment on Clark’s request for declaratory relief. Clark is entitled to

declaratory relief under the Texas Uniform Declaratory Judgment Act

(“UDJA”). A person interested under a written contract, or whose rights,

status, or other legal relations are affected by a contract may have any

question of construction or validity arising under said contract

determined and obtain a declaration of rights, status, or other legal

73Dillard’s Response to Plaintiff’s Motion for Partial Summary Judgment, dated July 30, 2012, exhibit 5, App. at 205-206 ¶10; 1 CR 803. Appellant’s Amended Opening Brief and Appendix 19 relations thereunder. 74 When declaratory relief is sought, all persons

who have or claim any interest that would be affected by the declaration

must be made parties. 75 Dillard’s asserts that an invoice between

Dillard’s and McKool reflect an agreement between Clark and Dillard’s

granting Dillard’s unlimited use of Clark’s image. But Clark never

entered into an agreement with any of the parties transferring his right

of publicity. Clark never had an agreement with Dillard’s, and McKool

acknowledges that there was never any agreement between it and

Clark. 76 Clark is an interested party and his legal rights are affected by

how these instruments are interpreted. Therefore, Clark is entitled to

have the usage rights determined by the Court. The UDJA permits

Clark’s request for a declaratory judgment.

A declaratory judgment is appropriate only if a justiciable

controversy exists as to the rights and status of the parties and the

controversy will be resolved by the declaration sought. A justiciable

controversy exists when there is a real and substantial controversy

involving a genuine conflict of tangible interests and not merely a

74 UDJA §37.004(a). 75 Id. at §37.006(a). 76 Affidavit of Mollie McKool, App. at 1190 ¶7 and 1192 ¶18; 1 CR 802; 804.

Appellant’s Amended Opening Brief and Appendix 20 theoretical dispute. 77 Here there is a justiciable controversy because

there is a dispute over whether a contract ever existed and, if a contract

existed, what rights were transferred thereunder. Clark never granted

his right of publicity or the unlimited right to use his image to any of the

Defendants.78 McKool did not have any rights in Clark’s image.79

Instead, McKool only possessed the copyright to the photographs

themselves (i.e. a right to the elements attributed to the photographer’s

artistic ability – lighting, angle, shadow, background, etc.). While it is

true that the invoice between McKool and Dillard’s transferred McKool’s

copyrights in the images, it hardly follows that the invoice transferred

any of Clark’s rights as the model. 80 As previously discussed with regard

to Clark’s claim of unfair business practices, there is no evidence to

support the existence of a contract – written, oral, or otherwise – between

McKool and Clark. There is no language on either the invoice between

Dillard’s and McKool or any voucher received by Clark acknowledging

that he showed up for the photo shoot that transfers Clark’s right of

77 Bonham State Bank v. Raymond G. Beadle, 907 S.W.2d 465 (Tex. 1995). 78 Affidavit of Stephen W. Clark, Ex. 20, ¶5 to Plaintiff’s Response to Dillard’s November 30, 2012 Motion for Summary Judgment, App. at 1888; 1 CR 1169. 79 Affidavit of Mollie McKool, dated Sept. 13, 2012, Ex. 5, ¶7 to Plaintiff’s Response to

Dillard’s November 30, 2012 Motion for Summary Judgment, App. at 1190; 1 CR 802. 80 Id.

Appellant’s Amended Opening Brief and Appendix 21 publicity. Consequently, these instruments do not transfer usage rights

or the right to reproduce Clark’s image, and the declaratory relief

requested by Dillard’s and granted by the trial court is erroneous.

C. THE COURT ERRED IN GRANTING TCA’S MOTION FOR SUMMARY JUDGMENT, DISMISSING IT FROM THE CASE.

On October 26, 2012, TCA filed a motion for summary judgment on

all claims pending against it.81 In its Traditional and No-Evidence

Motion for Summary Judgment, The Campbell Agency sought to dismiss

all claims against it by boldly asserting that it had neither a fiduciary

duty nor any sort of contractual obligation to Clark. Yet The Campbell

Agency holds itself out as an “Agency” and is in the business of

representing models and actors through its network of “agents.” 82 TCA

argued in the alternative that if it did owe any fiduciary or contractual

duties to Clark, then Clark’s claims were barred by either laches or the

81 Appendix at 270. Because the Court had previously dismissed certain claims in response to Dillard’s motion, TCA and Clark agreed that the Court’s rulings would apply to TCA, without waiving any arguments for appellate purposes; CR Supp Vol.2 at 4. 82 Campbell Dep. 20:21-24, App. at 568; 1 CR 697.

Appellant’s Amended Opening Brief and Appendix 22 applicable statute of limitations. 83 The trial court granted TCA’s Motion

for Summary Judgment, and dismissed Clark’s claims against TCA. 84

1. The District Court Erred By dismissing TCA on arguments that TCA did not advance in its Disclosures.

In response to Plaintiff’s Request for Disclosures, TCA was required

to “state the legal theories and, in general, the factual bases of [its]

claims or defenses.” Tex. R. Civ. P. 194.2(c). It was also required to

identify “persons having knowledge of relevant facts” as well as experts.

Id. at 194.2(e). None of the legal arguments or facts relied upon by TCA

in its Motion were ever disclosed in any of its Disclosures. 85 Likewise, to

support its Motion, TCA relies on the testimony of fact and expert

witnesses whose identities were never mentioned in Disclosures.86

Because TCA wholly and completely failed to disclose the facts, witnesses

and legal theories forming the basis for the motion for summary

83 Appendix at 270; CR Supp Vol. 2 at 20-22. 84 See Orders Granting Traditional and No Evidence Motions for Summary Judgment, App. at 58-59; 1 CR 890-891. 85 See Appendix at 511-528 (#10, The Campbell Agency’s Response to Clark’s Request

for Disclosure which fails to disclose any of the legal theories of factual bases advanced in TCA’s Motion), #11, The Campbell Agency’s First Amended Response to Clark’s Request for Disclosure (also fails to disclose any of the legal theories or factual bases advanced in TCA’s Motion) and #12, The Campbell Agency’s Second Amended Response to Clark’s Request for Disclosure (failing again to disclose any of the legal theories or factual bases advanced in TCA’s Motion). CR Supp Vol 2 at 84,88,90. 86 Id.

Appellant’s Amended Opening Brief and Appendix 23 judgment, the court could not rely upon those witnesses, facts or legal

theories.87 The trial court erred as a matter of law by granting the

motion, and this court should reverse that decision.

2. Issues Concerning Breach of Fiduciary Duty

TCA sought dismissal of Appellant’s breach of fiduciary duty claim,

arguing that the existence of any fiduciary duty is purely a question of

law, not one of fact. In its argument, TCA failed to cite Texas Supreme

Court authority holding that the existence of fiduciary duties involving

fair dealing, trust and confidence are fact issues. 88 TCA is simply wrong

on the law.

Disputed facts exist as to what TCA’s responsibilities were at the

time that it acted as Appellant’s agent, and what responsibilities carried

forward after the agency relationship was terminated. “A talent agent,

or booking agent, is a person who finds jobs for actors, authors, film

directors, musicians, models, producers, professional athletes, writers

87 See e.g., Hernandez v. Mid-Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.--San Antonio 2005, no pet.); Chasewood Oaks Condominiums Homeowners Ass'n v. Amatek Holdings, Inc., 977 S.W.2d 840, 845 (Tex. App.--Fort Worth 1998, pet. denied). 88 Crim Truck & Tractor Co. v. Navistar International Transportation Corp., 823

S.W.2d 591, 594 (Tex. 1992). Appellant’s Amended Opening Brief and Appendix 24 and other people in various entertainment businesses. An agent also

defends, supports and promotes the interest of his/her clients.” 89

Issues of fact exist as to the scope of TCA’s responsibilities to

Appellant. Was TCA required to “defend, support and promote”

Appellant at any time? What were the on-going responsibilities of TCA

for the TCA-generated bookings after Appellant changed agents? Was

there an agency agreement and, if so, what were the terms of the

agreement? What were TCA’s continuing obligations as to Appellant

with respect to any dispute with Dillard’s? Was TCA required to monitor

usage? Was it reasonable for Appellant to expect that TCA was

monitoring usage during the time of the agency relationship? Is it

reasonable that prolonged usage by Defendant Dillard’s could not have

escaped the attention of TCA? These and other questions regarding the

relationship between Appellant and TCA are issues of fact for a jury.

The answers to these questions would determine whether fiduciary

and/or contractual obligations existed between Clark and TCA.

TCA’s owner and executive admitted that industry protocols require

the booking talent agent to contact the talent with issues relating to any 89See, e.g., Business Essentials and Social Responsibilities, Tenae Wheeler, 2012. Wheeler’s definition has been quoted word-for-word in 1,320 articles, webpages and other publications based on a Google search of the referenced quotation. Appellant’s Amended Opening Brief and Appendix 25 job booked by the talent agency. Campbell admitted that “[i]t is proper

protocol in our business if an agency books a job and, if there's an issue,

then that agency should be the one to contact the client.” 90 The “client”

in this context, Campbell is the agent, Clark is the talent and Dillard’s is

the client.

Through this testimony, Campbell confirms by admission that

industry protocols require an agent to contact the retail client when an

issue arises and that the obligation to do so is ongoing. Those “industry

protocol” obligations support the position that TCA had fiduciary duties

of fair dealing, confidence and trust which are fact issues to be

determined by a jury pursuant to the Texas Supreme Court’s decision in

Crim Truck. 91

During her deposition, Campbell admitted that she did nothing to

contact the Client, Dillard’s, when she learned of the problem. 92 She also

admitted that she took no action to confirm that Clark’s rights were

preserved. “I wasn’t looking for Stephen’s image on anything.” 93

90 Campbell Dep. 76:14-17, App. at 624; 1 CR 711. 91 823 S.W.2d at 594 (Tex. 1992). 92 Campbell Dep. 73:17-18, App. at 621; 1 CR 711. 93 Campbell Dep. 250:11-12, App. at 798; 1 CR 755.

Appellant’s Amended Opening Brief and Appendix 26 TCA admitted that it took no action during the 1998-2000 time

frame to monitor usage, which Appellant contends was in violation of its

fiduciary duties and in breach of contract. These admissions prove that

TCA did not satisfy its obligations and, at the very least, resulted in fact

issues, requiring denial of the motion for summary judgment. In her

deposition testimony, Campbell conceded that, in response to Appellant’s

request that TCA defend his publicity rights consistent with such

industry protocol, “I told him no.” 94

3. Issues Pertaining to Breach of Contract Claim

As noted above, TCA relied on legal arguments, fact witnesses and

facts that were not disclosed in its responses to requests for disclosures.

To avoid duplication, Appellant will not repeat that argument here.

There are facts in dispute that preclude summary judgment on the

contract claims. In her deposition, Campbell admitted that TCA was

responsible for approaching Dillard’s when an issue arose regarding the

use of Appellant’s image because TCA secured the representation.

Campbell admitted that “[i]t is proper protocol in our business if an

agency books a job and, if there's an issue, then that agency should be the

94 Campbell Dep.73:17-18, App. at 621; 1 CR 711. Appellant’s Amended Opening Brief and Appendix 27 one to contact the client.” 95 Through this testimony, Campbell confirms

that the contractual obligations of an agent to defend a model’s right of

publicity are continuous in nature for the jobs booked by that agency.

Campbell further admitted that Appellant contacted TCA,

identified the issue with Dillard’s and requested that TCA resolve the

issue. Specifically, Campbell admitted that “he asked if I would call

Dillard's” 96 on his behalf, as required under the “industry protocol.” In

her deposition testimony, Campbell conceded that, in response to

Appellant’s request that TCA defend his publicity rights consistent with

such industry protocol, “I told him no.” 97 By refusing to defend

Appellant’s right of publicity for the job at issue, Appellant contends that

TCA breached contractual obligations and/or fiduciary duties. Thus,

TCA’s Motion should be denied based on the testimony of its President,

Nancy Campbell.

4. Issues Pertaining to the Statute of Limitations and Laches Affirmative Defenses

TCA also sought summary judgment on its affirmative defenses of

statute of limitations and laches. To prevail on either defense, TCA is

95 Campbell Dep. 76:14-17, App. at 624; 1 CR 711. 96 Campbell Dep. 73:17-18, App. at 621; 1 CR 711. 97 Id.

Appellant’s Amended Opening Brief and Appendix 28 first required to state the accrual date for each cause of action, which it

does not do. Without an accrual date, TCA cannot argue that any

limitations or laches period expired. TCA has the burden to prove (1)

when the action accrued; (2) when Clark knew that he had an action to

assert; and (3) that the discovery rule does not apply.

A cause of action accrues when “a wrongful act causes some legal

injury, even if the fact of injury is not discovered until later, and even if

all resulting damages have not yet occurred.” 98 The breach of fiduciary

duty and breach of contract causes of action are inextricably tied to

Dillard’s use of Appellant’s images for product packaging. Had Dillard’s

never used the images for product packaging, there would be no breach of

fiduciary duty by TCA. Likewise, had Dillard’s never used the product

packaging, there would be no breach of contract.

This leads to the question of when Dillard’s first started using the

images for product packaging. Dillard’s has been unable to establish a

reliable date of first use. The only evidence that Dillard’s has produced

regarding its first use is the affidavit testimony of Mike McNiff.

However, McNiff’s lack of personal knowledge became obvious during his

98Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Burke v. Insurance Auto AuctionsCorp., 169 S.W.3d 771, 776 (Tex. App. -- Dallas 2005, pet. denied). Appellant’s Amended Opening Brief and Appendix 29 deposition when he testified that the images in question were used for

product packaging “around 1991,” seven years before the photography

shoot occurred. 99 After getting a hint from his lawyer that his deposition

answer was wrong (over the objection of counsel for Appellant), Mr.

McNiff changed his testimony to say that he “believed it was around

2001.” 100 Immediately following this ambiguous statement, the witness

finally admitted, “I don't know exactly when the merchandise hit the

floor, no, sir.” 101

The witness also admitted that paragraph 2 of his Affidavit is false.

In this part of his Affidavit, McNiff claimed to have supervisory

responsibility over advertising agencies, modeling agencies and photo

studios. When asked in his deposition if he in fact had that supervisory

authority, he admitted that he did not. Ex. 1at 38-39. When asked who

did have supervisory responsibility, McNiff testified it was Christine

Rowell, another Dillard’s employee. Ex. 1 at 40-41.

Damages are an element that must be proved as part of a cause of

99 McNiff Dep. See Plaintiff’s Response to Dillard’s Motion for Summary Judgment dated November 27, 2014 Ex. 1 pg 28, App. at 1249;1 CR 593. 100 Id. at 1251; 1 CR 594. 101 Id. at 1252;1 CR 594.

Appellant’s Amended Opening Brief and Appendix 30 action for breach of fiduciary duty. 102 Similarly, damages are required to

prove breach of contract. 103 The key issue, therefore, is the date when

Appellant first could have suffered damages and asserted a valid claim

for breach of fiduciary duty. The earliest time that TCA can assert that

this cause of action accrued is the date of first use of the images on

product packaging by Dillard’s because, until that time, Appellant had

suffered no damages. As indicated above, neither TCA nor Dillard’s can

say when the images were first used. Therefore, TCA cannot carry its

burden of proof in establishing the date when the cause of action accrued.

The identical argument applies for the breach of contract cause of

action. The cause of action did not accrue until Appellant suffered

damages, an essential element of the claim, which occurred only upon

first use of the images. Again, TCA cannot prove the date of first use,

and therefore, cannot prove when the cause of action accrued.

Finally, TCA admitted in its Answer to Plaintiff’s First Amended

Petition that it “does not have personal knowledge whether the photos

shown in Plaintiff’s Original Petition were even taken during the 9.16.98

shoot.” Ex.13 at p. 2. Given this admission, the question arises as to 102See Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied). 103See Stewart v. Sanmina Texas, L.P., 156 S.W.3d 198, 214 (Tex. App.-Dallas 2005, no pet.) Appellant’s Amended Opening Brief and Appendix 31 whether any aspect of TCA’s Motion can be granted until a fact-finder

determines whether the photos used by Dillard’s were in fact from the

9.16.98 photography session.

5. TCA Has Failed to Carry its Burden as to The Discovery Rule.

In its motion, TCA took the position that the discovery rule does not

apply to Appellant’s causes of action. The burden is on TCA to show that

the discovery rule is unavailable to Appellant. 104 To do so the Defendant

must (1) conclusively prove the date the cause of action accrued

and (2) negate the applicability of the discovery rule if it applies

and (3) has been pleaded or otherwise raised. 105 TCA did not plead

the defenses. 106 Even if it had pleaded those defenses, TCA cannot and

does not provide evidence for when each cause of action accrued. As

noted above, none of the Defendants could testify as to when Dillard’s

first started using the photos on product packaging.

To negate the applicability of the discovery rule, a defendant must

prove, as a matter of law, that there is no genuine issue of material fact

about when the plaintiff discovered or, in the exercise of reasonable

104 Peggy Woods, C.R.N.A., V. William M. Mercer, Inc., Et Al. 769 S.W.2d 515, 518. 105 Id. 106 Appendix at 530; 1 CR 457-464.

Appellant’s Amended Opening Brief and Appendix 32 diligence, should have discovered the nature of his injury. 107 Again, none

of the Appellees can say when Dillard’s first started using the product

packaging.

As noted above, TCA has failed to plea or prove the date the cause

of action accrued. 108 It cannot carry its burden of proof that the discovery

rule does not apply. For this reason the Motion should have been denied.

D. IT WAS ABUSE OF DISCRETION TO CONSTRUCTIVELY STRIKE APPELLANT’S EXPERT THE DAY BEFORE TRIAL.

On July 16, 2013 the trial court denied Defendant’s Motion to

Strike Expert filed on July 12, 2013, but qualified its ruling by stating “if

Plaintiff chooses to call Peter Sealey as an expert, he shall make Mr.

Sealey’s expert report available by 9:30 a.m. on July 16, 2013.” 109 The

trial court erred by constructively striking Plaintiff’s expert the day

107 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 223; KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); 108 The discovery rule applies when the publication is either fraudulently concealed or

not easily discoverable. S.V. v R.V., 933 S.W. 2d 1, 6; Pedro Nosnik et al. v. Ginsberg and Brusilow, et. al., 2000 Tex. App. LEXIS 3730, 3737. An injury need not be absolutely impossible to discover and discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred. S.V. v. R.V. at 7. In the present case the injury occurred in a chain of department stores located exclusively in the United States. There were no visible operations for Appellant to discover while residing in France. Under the circumstances, the unauthorized use of Appellant’s image was not easily discoverable. When Plaintiff did learn of the misappropriation in 2009 he began to work with his then-current modeling agency to resolve the issue. 109 Order Regarding Pretrial Hearing, July 16, 2013 para 4; 2 CR 418.

Appellant’s Amended Opening Brief and Appendix 33 before trial because Plaintiff’s expert was qualified and no expert report

could be drafted without Dillard’s first supplementing its disclosures.

1. Dillard’s First Motion to Strike Plaintiff’s Expert

On July 15, 2012, Plaintiff timely designated two damages experts

Lloyd D. Robinson and Dr. Peter Sealey. After timely designating both

experts Plaintiff chose not to call Mr. Lloyd Robinson for strategic

reasons. On the eve of trial, July 15, 2013, the Court, in response to

Dillard’s Motion to Strike Plaintiff’s Expert Witness, ruled that Dr.

Sealey may only testify if he could draft and provide Dillard’s with an

expert report the next morning; a feet impossible for Dr. Sealey to meet.

Therefore, the Court erred because its actions constituted a

constructively strike of Plaintiff’s intended damages expert, Dr. Peter

Sealey.

Defendant filed the first of two Motions to Strike Plaintiff’s Experts on

August 7, 2012. Defendant complains that Plaintiff failed to timely

designate its expert and to provide the general substance of Dr. Sealey’s

opinions, the basis of his opinions, and the foundation of his expertise.

Plaintiff, in his response, contended that his designation was timely and

adequate from the beginning. In any event, Plaintiff properly

Appellant’s Amended Opening Brief and Appendix 34 supplemented its designation/disclosures as discovery continued in this

case and months before this trial date. Defendant did not object to the

adequacy of the supplemented disclosures.

a. Plaintiff Timely Identified Dr. Sealey

First, Defendant claimed that Plaintiff did not timely designate Dr.

Sealey as a witness and he is therefore barred from testifying under

“Rule 215(5) Tex. R. Civ. P.,” 110 Rule 215.5 states:

215.5 Failure of Party or Witness to Attend to or Serve Subpoena; Expenses. (a) Failure of party giving notice to attend. If the party giving the notice of the taking of an oral deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees. (b) Failure of witness to attend. If a party gives notice of the taking of an oral deposition of a witness and the witness does not attend because of the fault of the party giving the notice, if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney fees.

110 Defendant’s Motion to Strike, App. at 2064; 2 CR 84. Appellant’s Amended Opening Brief and Appendix 35 Defendant did not depose Dr. Sealey nor has it served him a

subpoena, therefore this Rule is inapplicable and results in a groundless

allegation. If the Defendant meant to refer to TRCP Rule 193.6, which

superseded Rule 215.5 in 2003, Clark also prevails. Rule 193.6(a) states:

193.6 Failing to Timely Respond - Effect on Trial (a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

If this in fact is the rule to which Defendant intended to cite,

Defendant overlooked the fact that Plaintiff amended his disclosures on

July 15, 2012, prior to the close of discovery and prior to the date when

Attorney Camina made an appearance in this case. The disclosures were

sent by certified mail to Patricia Nolan, the attorney representing

Appellant’s Amended Opening Brief and Appendix 36 Dillard’s at the time. The certified mail receipt is attached hereto in the

Appendix,111 proving that Dillard’s counsel received the documents.

The disclosures sent on July 15, 2012, and received by Attorney

Nolan on July 22, 2012, disclose Peter Sealey as an expert and disclose

Mr. Sealey’s damages contentions. In addition on, March 20, 2013

Plaintiff supplemented his disclosures further setting forth Mr. Sealy’s

damages theory. Additional information was also provided regarding the

punitive damages theory in March, 2013. That additional information is

based on Mr. Sealey’s review of discovery that had been produced by

Dillard’s after September 10, 2012.

b. No Expert Report Could Be Generated

In his response to disclosures, Clark offered to provide an expert

report from Dr. Sealy upon the satisfaction of one condition: Dillard’s

fully answer discovery concerning sales of each of the products bearing

Clark’s face and torso. 112 Dillard’s was previously ordered to produce

financials on September 5, 2012.113 Dillard’s provided some, but not all, of

the documents ordered, claiming it could not locate all of the documents.

111 Appendix at 2154; 2 CR 604. 112 Trial transcript Vol. 6, 54:7-55:10, App. at 67-68. 113 Appendix at 2253; 1 CR 397-400.

Appellant’s Amended Opening Brief and Appendix 37 Because Dillard’s either could not, or would not, produce the needed

discovery, the statement in the disclosures was nullified.

c. The Standard in Texas for the Admission of Expert Opinion Evidence

Rule 702 of the Texas Rules of Evidence permits a witness qualified

by knowledge, skill, experience, training, or education to testify on

scientific, technical, or other specialized subjects if the testimony would

assist the trier of fact in understanding the evidence or determining a

fact issue. 114 A two-part test governs whether expert test only is

admissible: 1) is the expert qualified, and 2) is the testimony relevant

and based on a reliable foundation? 115

d. The Qualifications of Dr. Peter Sealy

As evidenced by his Curriculum Vitae, 116 and provided to Defendant

in Plaintiff’s Supplemental Disclosures served on Defendant on July 15,

2012, Dr. Peter Sealey, is qualified in knowledge, skill experience and

training to provide his opinions regarding Plaintiff’s damages.

Dr. Sealey is the former Senior Vice President of Global Marketing

at The Coca-Cola Company where he launched Diet Coke and also served

114 Tex. R. Civ. Evid 702; Gammill v Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). 115 E.I du Pont de Nemours v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). 116 Appendix at 2156; 2 CR 606-610.

Appellant’s Amended Opening Brief and Appendix 38 as President of Marketing at Columbia Pictures. He is the former co-

director of the Center of Marketing and Technology at the Haas School of

Business, U.C. Berkeley, has been a professor at the Stanford Graduate

School of Business and currently teaches entertainment marketing at the

Drucker/Ito Center Graduate School of Management at Claremont

University. He consults to numerous global corporations and Silicon

Valley start-ups such as VeriSign, General Motors, Coke, Sony,

Anheuser-Busch, Visa U.S.A., UPS, ImproveNet, Johnson & Johnson,

Hewlett-Packard, Kodak, and Nokia. He currently serves, or has served,

on the Boards of Directors of cFares, Inc.,4Info, IMMI, inc., Reply!,

StrongMail, Round Table Pizza, L90, Inc., MediaPlex, Inc., T/R Systems,

United Parcel Service Capital, Learning Framework and Kinzan.com. He

serves, or has served, on the Boards of Advisors of Intent MediaWorks,

Facebook, Cognitive Labs, Rearden Commerce, Veoh, HomeGain.com,

Space.com, Learning Framework, Zinio & eVoice.com.

Dr. Sealey received a Bachelor of Science degree in Business from

the University of Florida, a Master of Industrial Administration degree

from Yale University, and Master of Arts in Management and Doctor of

Philosophy degrees in Management and Information Technology from the

Appellant’s Amended Opening Brief and Appendix 39 Peter F. Drucker Graduate Management Center at The Claremont

Graduate School.

2. Dillard’s Second Motion to Strike Plaintiff’s Expert

Dillard’s Second Motion to Strike Plaintiff’s Expert was filed on

Friday, July 12, 2013 at 3:32pm, knowing that trial was to begin the

following Monday morning. In its second Motion to Strike Plaintiff’s

Expert, Dillard’s, for the first time, argued that Dr. Sealey should have

provided Defendant with an expert report despite the fact that, as

repeatedly mentioned in Plaintiff’s initial and amended disclosures, Dr.

Sealey could not create an expert report without Dillard’s first providing

certain outstanding discovery materials. 117 Furthermore, Dillard’s did not

ask for Dr. Sealey’s expert report. Under TRCP 194.2(f)(4)(A) a party can

ask for a report from the other party’s retained testifying expert in a

request for disclosures. Dillard’s never served on Plaintiff such a request,

instead it waited until the eve of discovery to demand a report. The

court’s ruling for Dillard’s was erroneous because Dr. Sealey could not

have drafted a report without Dillard’s first supplementing its discovery.

E. THE COURT FAILED TO TAKE JUDICIAL NOTICE OF PAST PLEADINGS.

117 Appendix at 2162; 2 CR 84. Appellant’s Amended Opening Brief and Appendix 40 A Texas Court “shall take judicial notice [of facts] if requested by a

party and supplied with the necessary information.” 118 Therfore, it is

mandatory for a Court to take judicial notice of another court's records if

a party provides proof of the records. 119 Failure to take Judicial Notice is

reviewed for abuse of discretion, reviewing the entire record. 120

While this case was in the trial court, Appellant provided the Court

with copies of the following documents: (1) the Order granting The

Campbell Agency’s Motion for Summary Judgment; 121 (2) the case law

decision detailing the summary judgment granted in the Henley v.

Dillard Department Stores case122 (“Henley Litigation”); and (3) the

Court’s finding of Mollie McKool Photography, Inc. as a responsible third

party in this case. 123 Incredibly, the trial court did not take judicial

notice of these documents. The law plainly states “the Court shall”; there

is no room for discretion or argument, despite Defendant’s claim that the

118 TEX. R. EVID. 201(d) (emphasis added). 119 Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); MCI Sales & Serv. Inc. v. Hinton, 329 S.W.3d 475, 497 n.21 (Tex. 2010). 120 In re A.R., 236 S.W.3d 460, 477 (Tex.App.-Dallas 2007); Daugherty v. Southern

Pac. Transp. 772 S.W.2d 81, 83 (1989). 121 Appendix at 2054; 2 CR 448. 122 Appendix at 2039; 2 CR 434. 123 Appendix at 2059; 2 CR 452.

Appellant’s Amended Opening Brief and Appendix 41 request did not comport with Texas Rules of Evidence 201. 124 By ignoring

the plain meaning of the word “shall,” the trial court has once again

erred.

1. The Campbell Agency’s Motion for Summary Judgment

The Court erred in not ruling on Plaintiff’s Request for Judicial

Notice in the Bifurcated Proceedings Regarding Court’s Entry of

Summary Judgment for The Campbell Agency because, Appellant

requested that the Court take Notice and the Court was “supplied with

the necessary information.” Tex. R. Evid. 201(d). On July 17, 2013,

Appellant filed his Request for Judicial Notice in the Bifurcated

Proceedings Regarding Court’s Entry of Summary Judgment for The

Campbell Agency.125 Attached to this Request, as Exhibit 1, Appellant

provided the Court with a copy of the order granting The Campbell

Agency’s Motion for Summary Judgment and therefore requested that

the Court take judicial notice of said judgment. Despite Appellant’s

meeting the requirements for mandatory judicial notice, the Court did

not take judicial notice.

124Trial Transcript Vol. 6, 20:12-13 dated July 15, 2013, App. at 65. 125Plaintiff’s Request for Judicial Notice in Bifurcated Proceedings, App. at 2054; 2 CR 448. Appellant’s Amended Opening Brief and Appendix 42 The consequence of this failure was that the jury heard testimony

casting blame on TCA for failure to monitor Clark’s works and enforce

proper usage; however, they were not made aware why TCA was not a

participating in the case, or that they had been granted a summary

judgment. This allowed the jury to consider mitigating circumstances

when assessing fault/damages against Dillard’s and also did not give

them the full picture of TCA’s involvement other than as an expert

witness. Consequently, testimony given by an interested party was given

inappropriate weight, Appellant was hampered in attempts to impeach

TCA, and the award against Dillard’s was unreasonably low.

Appellant’s Amended Opening Brief and Appendix 43 2. The Motion for Summary Judgment Granted in the Henley Litigation

The Court erred in not ruling on Plaintiff’s Request for Judicial

Notice in the Bifurcated Proceedings Regarding Entry of Summary

Judgment Against Dillard’s in the Henley Litigation because Appellant

requested that the Court take Notice and the Court was “supplied with

the necessary information.” 126 On July 17, 2013, Appellant filed the

aforementioned request and attached thereto, as Exhibit 1, a copy of the

Henley Court’s memorandum and opinion. 127 Despite Appellant meeting

all the requirements for judicial notice, the Court failed to take judicial

notice of the Henley case.

Dillard’s history of misappropriating likeness was pivotal to the

question of enhanced damages. Had the Court judicially noticed the

prior misappropriation case and it then been admitted for the jury’s

consideration, the jury would have had the opportunity to properly

evaluate the question of Dillard’s malice, which they were asked to

determine. The jury was asked whether Dillard’s acted with malice.

Because they had no knowledge of Dillard’s prior misappropriation, or

126Tex. R. Evid. 201(d). 127Plaintiff’s Request for Judicial Notice in Bifurcated Proceedings, App. at 2054; 2 CR 434. Appellant’s Amended Opening Brief and Appendix 44 the fact that the prior case put Dillard’s on notice regarding their shoddy

and illegal advertising practices, of course they found no malice. Had

they been aware of the fact that Dillard’s had knowledge of what

constituted “misappropriation of likeness,” the jury very likely would not

have answered Question 4 finding the misappropriation excused by

mistake.

F. DESPITE APPELLANT’S CLEAR PLEA FOR ANY AND ALL DAMAGES PERMISSIBLE UNDER TEXAS LAW THE COURT REFUSED TO CONSIDER DISGORGEMENT OF PROFITS.

The trial court erred in granting Dillard’s Bench Brief Regarding

Disgorgement of Profits filed on July 12, 2013, 128 because Appellant

properly requested disgorgement of profits in each of his three Petitions.

On October 15, 2011, Clark filed his Original Complaint where he

pleaded for “[a] judgment awarding actual and punitive damages, an

accounting of Dillard’s profits, disgorgement of those profits, attorneys’

fees, pre-judgment and post judgment interest.” 129 On September 17,

2012, Clark filed his First Amended Complaint where he pleaded for:

[a] judgment awarding actual … actual and punitive damages against Campbell for breach of fiduciary duties; or alternatively, contract damages against Defendant 128 Plaintiff’s Motion for New Trial dated August 30, 2013, App. at 2148-49; 2 CR 589- 601. 129 Id.

Appellant’s Amended Opening Brief and Appendix 45 Campbell, plus attorneys’ fees, pre-judgment and post- judgment interest for all claims where such awards are available under Texas law. emphasis added.130

Finally on November 29, 2012, Clark filed his Second Amended

Complaint where he pleaded for:

[a] judgment awarding all available damages against all Defendants, … plus attorneys’ fees, pre-judgment and post-judgment interest for all claims where such awards are available under Texas law. emphasis added. 131

In each of Clark’s three Petitions, he clearly and consistently

pleaded for disgorgement of profits. In his first Petition Appellant

specifically sought disgorgement of profits. In the subsequent two

petitions, Appellant pleaded for “all claims where such awards are

available under Texas law” thereby encompassing disgorgement of

profits. Therefore, the trial court erred in granting Dillard’s objection to

Appellant’s request for disgorgement of profits.

G. THE COURT OVERRULED APPELLANT’S OBJECTIONS TO JURY QUESTIONS THAT WERE INCORRECT AS A MATTER OF LAW AND WERE INTERNALLY INCONSISTENT.

The trial court erred by overruling Clark’s objections to the jury

charge. Clark renews all of his objections to the jury charge as reflected

130 Id. 131 Id. Appellant’s Amended Opening Brief and Appendix 46 in the record.132 Two jury instructions are particularly serious because

they were internally inconsistent, redundant, and led to an inconsistent

result.

Question No. 3: Do you find from a preponderance of the evidence

that Dillard’s misappropriation was excused?

Question No. 4: Do you find from a preponderance of the evidence

that Dillard’s misappropriation was excused as a result of mistake?

Questions 3 and 4 are identical except for the four additional words

in Question 4 that qualify the word “excused.” In Question 3, the word

“excused” is unqualified and, therefore, includes all possible bases for any

excuse. To that question, the jury answered “no”: that Dillard’s was not

excused from any possible mistake. Question 4 asked the same question

again, but added the words “as a result of mistake.” This question clearly

caused confusion as the jury answered “yes” to this question. This leaves

the record with two internally inconsistent fact findings which lead to

two different results with respect to the claims for misappropriation of

likeness.

132See generally, Trial Transcript Vol. 11, pp. 27:18 – 32:7, App. at 95-100; RR 11 at 27-32. Appellant’s Amended Opening Brief and Appendix 47 Question 4 should not have been presented to the jury because

mistake is not a defense to the cause of action for misappropriation of

likeness. The elements of a misappropriation of name or likeness claim

are: 133

1. The defendant appropriated the plaintiff’s name or likeness for the

value associated with it;

2. The plaintiff can be identified from the publication; and

3. The defendant reaped some advantage or benefit.

If Dillard’s was not excused from using the images, there was a

misappropriation. Whether Dillard’s made a mistake is irrelevant. By

including Question 4, which was inconsistent with Question 3, the Court

created unnecessary confusion and a reversible error.

CONCLUSION

For the foregoing reasons, Appellants respectfully request that this

Court of Appeals make the following rulings: (1) that the trial court’s

order denying Appellant’s motion for partial summary judgment be

reversed and that the Court of Appeals render judgment that Dillard’s

misappropriated three of Appellant’s images; (2) that the trial court’s

133Brown v. Ames, 201 F.3d 654, 657-58 (5th Cir. 2000); Matthew v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994); Benavidez v. Anheuser Busch, Inc., 878 F.2d 102, 104 (5th Cir. 1989). Appellant’s Amended Opening Brief and Appendix 48 order granting in part Dillard’s motion for summary judgment,

dismissing claims for injunctive relief, unfair business practices and

declaratory relief be reversed and remanded for further proceedings; (3)

that the trial court’s order dismissing TCA from the case be reversed and

remanded for further proceedings; (4) that the trial Court’s decision to

strike Appellant’s damages expert the day before trial be reversed and

remanded; (5) that the trial court’s decision to exclude consequential

damages be reversed and remanded for further proceedings; (6) that the

trial court’s failure to take judicial notice of identified matters be

reversed and remanded for further proceedings; (7) that the trial court’s

decision to overrule Appellant’s objections to the court’s jury instructions

on misappropriation of likeness be reversed; and (8) that the trial court’s

order denying Appellant’s motion for new trial be reversed, and that a

new trial proceed.

Appellant’s Amended Opening Brief and Appendix 49 CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of this instrument is being served on a USB drive by United States Mail on this 27th day of March, 2014, upon the following counsel of record for appellees:

Ophelia Camina Susman Godfrey LLP 901 Main St., Suite 5100 Dallas, TX 75202

Brian A. Sheguit The Bassett Firm Two Turtle Creek Village 3838 Oak Lawn Ave., Suite 1300 Dallas, TX 75219

/s/ Stephen A. Kennedy Stephen A. Kennedy Kennedy Law, P.C. 1445 Ross Avenue, Suite 4950 Dallas, TX 75202 (214) 716-4343 skennedy@saklaw.net Attorney for Appellant

Appellant’s Amended Opening Brief and Appendix 50