Doggett v. The Travis Law Firm P.C.
PICTURE-PERFECT EXAMPLE OF TRAVIS LAW FIRM ...
PICTURE-PERFECT EXAMPLE OF TRAVIS LAW FIRM ...
Jeffrey L. Doggett v The Travis Law Firm, P.C. f/k/a Travis & Hammond, P.C., No. 01-17-00098-CV (Tex.App. - Houston [1st Dist.] Feb. 9, 2017) (corporate entities have no cause of action for invasion of privacy under Texas law).
... JUNK LITIGATION
Invasion of privacy is the theory on which The Travis Law Firm tried its case and on which the jury was charged. Texas courts have not recognized a corporation’s right to privacy, and we likewise decline to do so here. The Travis Law Firm cannot recover for invasion of privacy by appropriation of name or likeness. Accordingly, we sustain Doggett’s first issue.
Conclusion
Having determined that that The Travis Law Firm cannot recover on its cause of action for invasion of privacy, we reverse the judgment of the trial court and render judgment that The Travis Law Firm take nothing against Doggett on its invasion of privacy claim.
Opinion issued May 10, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00098-CV
———————————
JEFFREY L. DOGGETT, Appellant
V.
THE TRAVIS LAW FIRM, P.C. F/K/A TRAVIS & HAMMOND, P.C.,
Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2014-10648
O P I N I O N
favor of appellee, The Travis Law Firm f/k/a Travis & Hammond, P.C. (“The Travis
Law Firm”), on its cause of action for invasion of privacy by appropriation of name
2
or likeness. Doggett raises eight issues on appeal. In issues one and five through
eight, Doggett contends that The Travis Law Firm cannot recover on its claim for
invasion of privacy by misappropriation because (1) a corporation does not have a
right to privacy; (2) there was no evidence presented at trial that (a) The Travis Law
Firm’s name had any value, (b) the alleged appropriation of the name was for any
such value, (c) the alleged appropriation resulted in a benefit to Doggett, and (d) The
Travis Law Firm’s alleged damages were the proximate consequence of Doggett’s
appropriation of its name; and (3) the evidence conclusively proved that The Travis
Law Firm (a) consented to Doggett’s use of its name and (b) was estopped from
complaining about Doggett’s use of its name. In issues two through four, Doggett
argues that The Travis Law Firm cannot recover attorney’s fees from a prior lawsuit
as actual damages because (1) the Texas Supreme Court has not adopted an equitable
exception to the general rule regarding attorney’s fees; (2) an attorney representing
himself does not incur attorney’s fees; and (3) The Travis Law Firm was not a
prevailing party in the prior lawsuit. We reverse and render.
Background
In 2008, Gregory R. Travis, the sole shareholder of The Travis Law Firm, met
with William D. Hammond to discuss the possibility of working together. Travis
and Hammond agreed to change the firm’s name to Travis & Hammond, P.C.
3
At trial, Travis testified that he and Hammond changed the name of the firm
to facilitate a cross-marketing agreement between them. Travis testified that
Hammond’s role at the firm was that of a contract employee only but that Hammond
was allowed to obtain, in his individual capacity, the d/b/a designation of Travis &
Hammond. Travis testified that the arrangement ultimately “didn’t work out” and
ended approximately nine months later.1
Hammond, however, disputed Travis’s characterization of their arrangement.
Hammond testified that he became a partner and that he and Travis represented
themselves as partners to the public as well to as the bar.
Doggett began working at Travis & Hammond in 2008. Doggett and
Hammond testified that Travis offered, and Doggett accepted, an “of counsel”
position with the firm. Doggett testified that, as part of the arrangement, he was
allowed to use the firm phone number, fax number, the email address
jdoggett@travishammondlaw.com, as well as internet and office facilities, including
the storage room, kitchen, and conference room. Doggett also testified that the firm
receptionist answered his calls and the firm offered to do his billing. Hammond
testified that, as a firm partner, he authorized Doggett to use the firm letterhead and
the firm name, without limitation, and that he specifically asked Doggett to use the
1 Travis testified that the firm became Travis & Portele, P.C. but was later renamed
The Travis Law Firm.
4
firm letterhead in cases on which they worked together. Hammond further testified
that the firm listed Doggett’s name together with the firm’s name in pleadings, and
that Doggett used the firm’s name in some of the pleadings he filed. Doggett’s
biography and photograph were included in the firm’s marketing materials and on
the firm’s website.
Travis testified that he never discussed an “of counsel” role for Doggett, that
Doggett’s role at the firm was limited to leasing office space and working on his
own cases as well as Hammond’s cases, and that any work Doggett performed on
Travis’s cases was as a contract attorney. Travis further testified that Hammond did
not have the authority to bind Travis & Hammond, and that Doggett was prohibited
from using the Travis & Hammond name on cases that Doggett brought in and
worked on in his individual capacity.
Sometime in 2008, Doggett was hired to represent a client named Li Li in a
lawsuit (the “1821 litigation”) in which the client was sued for breach of contract
and negligence. Doggett testified that Ms. Li hired him in his individual capacity,
and that she did not hire Travis & Hammond. Nevertheless, Doggett sent emails to
Ms. Li using the jdoggett@travishammondlaw.com email account that included a
signature line showing Doggett’s name and Travis & Hammond, P.C. together.
Doggett also signed the original answer for Ms. Li as well as a counterclaim on her
behalf under the designation Travis & Hammond, P.C. Doggett received $14,279.31
5
for representing Ms. Li in the “1821 litigation.” On September 29, 2010, the trial
court rendered judgment against Ms. Li.
On December 7, 2012, Ms. Li sued Doggett and The Travis Law Firm f/k/a
Travis & Hammond, P.C., alleging that Doggett had committed malpractice in his
representation of her, and that The Travis Law Firm was liable under a theory of
respondeat superior. Travis asked Doggett to defend the firm in the malpractice
litigation but Doggett told Travis that he could not do so because he was a fact
witness in the case and was representing himself, and that he was concerned that a
conflict of interest existed. Doggett subsequently represented himself and The
Travis Law Firm represented itself in the malpractice suit. On September 13, 2013,
one day before her scheduled deposition, Ms. Li non-suited her claims against
Doggett and The Travis Law Firm.
On February 28, 2014, The Travis Law Firm filed suit against Doggett,
alleging causes of action for negligence and invasion of privacy by appropriation of
name or likeness. It later amended its petition to add claims for fraud, fraud by
nondisclosure, and breach of contract.
The case proceeded to trial on August 15, 2016. The Travis Law Firm
submitted two causes of action to the jury: (1) invasion of privacy by appropriation
of name or likeness and (2) breach of contract. As relevant here, the charge stated:
6
QUESTION NO. 1
Did Doggett invade the privacy of Travis Law Firm by appropriation of
the name and/or likeness of Travis Law Firm?
“Appropriate the name and/or likeness” means the following:
a. Doggett used Travis Law Firm’s name or likeness, including its former
name Travis & Hammond, P.C. for the value associated with it; and
b. Travis Law Firm could be identified by Doggett’s use of Travis Law
Firm’s name or likeness; and
c. Doggett received some advantage or benefit from the appropriation;
and
d. Travis Law Firm suffered an injury as a result of Doggett’s
appropriation.
The jury answered “Yes” and awarded $24,279.31 in damages to The Travis Law
Firm on its invasion of privacy claim. Although the jury found that Doggett had
breached his agreement with The Travis Law Firm, it found that his failure to comply
was excused.
On September 16, 2016, The Travis Law Firm filed a motion for judgment.
Doggett filed a response to the motion and request for oral hearing. On October 4,
2016, Doggett filed a motion for judgment notwithstanding the verdict (“JNOV”).
In his motion, Doggett argued, among other things, that The Travis Law Firm could
not recover on its invasion of privacy claim by appropriation of name or likeness
because Texas law does not recognize a corporation’s right to privacy. On
November 4, 2016, the trial court held a hearing on the motion for judgment and the
7
motion JNOV. The trial court deferred ruling on the motions and requested
supplemental briefing from the parties.
On November 11, 2016, the trial court rendered judgment on the jury’s verdict
in favor of The Travis Law Firm and awarded damages in the amount of $24,279.31.
On December 9, 2016, Doggett filed a motion for new trial and, on January 6, 2017,
a motion to reconsider his motion JNOV or, alternatively, a motion to vacate and/or
modify the judgment, both of which were overruled by operation of law. Doggett
timely filed this appeal.
Discussion
In his first issue, Doggett contends that the trial court erred in rendering
judgment in favor of The Travis Law Firm on its invasion of privacy claim by
appropriation of name of likeness because Texas law does not recognize a right of
privacy for a corporation. The Travis Law Firm argues that a corporation can prevail
under such a theory.
Invasion of privacy is an intentional tort. See Billings v. Atkinson, 489 S.W.2d
858, 860–61 (Tex. 1973). Texas recognizes three separate types of invasion of
privacy: (1) intrusion upon seclusion or solitude or into one’s private affairs; (2)
public disclosure of embarrassing private facts; and (3) wrongful appropriation of
8
one’s name or likeness. See Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994)
(discussing cases recognizing each type of privacy right).2
The three elements of invasion of privacy by misappropriation are (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) there was some
advantage or benefit to the defendant. Express One Int’l, Inc. v. Steinbeck, 53
S.W.3d 895, 900 (Tex. App.—Dallas 2001, no pet.) (citing Matthews v. Wozencraft,
15 F.3d 432, 437 (5th Cir. 1994)). Texas law applies a very restrictive interpretation
of the tort. See Cardiovascular Provider Res., Inc. v. Gottlich, No. 05-13-01763-
CV, 2015 WL 4914725, at *3 (Tex. App.—Dallas Aug. 18, 2015, pet. denied) (mem.
op.) (citing Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 639 (5th Cir. 2007)).
No Texas authority has recognized a corporation’s right to privacy. See
Abbott v. Gametech Int’l, Inc., No. 03-06-00257-CV, 2009 WL 1708815, at *7 (Tex.
App.—Austin June 17, 2009, pet. denied) (noting no Texas authority recognizes
corporation’s right to privacy, and declining to recognize such right); Chair King,
Inc. v. GTE Mobilnet, 135 S.W.3d 365, 395 (Tex. App.—Houston [14th Dist.] 2004),
rev’d on other grounds, 184 S.W.3d 707 (Tex. 2006) (same); Express One, 53
S.W.3d at 900; see also MICHOL O’CONNOR, TEXAS CAUSES OF ACTION 409 (2017)
2
In Cain v. Heart Corp., the Texas Supreme Court expressly declined to recognize a
false light invasion of privacy action. See 878 S.W.2d 577, 578 (Tex. 1994).
9
(noting corporations do not have right to privacy and probably cannot recover for
invasion of privacy by appropriation of name or likeness). Doggett argues that
because Texas does not recognize a right of privacy for a corporation, and
appropriation of name or likeness is a species of invasion of privacy, The Travis Law
Firm cannot recover on its appropriation claim.
In support of its assertion that it can recover under a misappropriation theory,
The Travis Law Firm cites U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls,
Inc., 865 S.W.2d 214 (Tex. App.—Waco 1993, writ denied). In that case, the
plaintiff corporation sued a sporting goods corporation and its president for
misappropriation of its animal sound tape recordings. See id. at 216. Following a
jury trial, the trial court rendered judgment for the plaintiff, and the defendant
appealed. See id. In particular, the defendant argued that the plaintiff had failed to
state a claim for misappropriation as it is recognized under Texas law. See id. The
court of appeals rejected the defendant’s argument and recognized a cause of action
for misappropriation. See id. at 218.
U.S. Sporting Goods is inapposite to the case before us. There, the court
recognized the plaintiff’s misappropriation claim as one of several independent
causes of action within the broad scope of unfair competition. See id. at 217. Here,
10
The Travis Law Firm alleged a claim for invasion of privacy, not unfair
competition.3
The Travis Law Firm also relies on Express One. 53 S.W.3d 895. In that
case, Express One International sought to recover damages from Steinbeck, a former
Express One pilot, after Steinbeck, using the screen name “ExpresONE,” allegedly
posted on an internet message board a message containing negative comments about
union supporters during a labor representation election campaign. See id. at 897.
After it denied responsibility, Express One sued Steinbeck for trade name dilution,
invasion of privacy, negligence, and conversion. See id. The trial court granted
summary judgment in favor of Steinbeck, and Express One appealed. See id. at 898.
In addressing Express One’s challenge to the summary judgment granted on
its invasion of privacy claim, the trial court stated
Express One acknowledges there is no Texas authority granting
corporations a right of privacy. It argues, however, that a corporation
should be allowed to sue for invasion of privacy as a logical extension
of its right to sue in tort. Express One notes that its invasion of privacy
claim is not based on allegations of intrusion into its seclusion, but
rather on the alleged misappropriation of its name. Express One argues
that this species of invasion of privacy should be equally available to
corporations as it is to individuals.
3 The Travis Law Firm also cites International News Service v. Associated Press, 248
U.S. 215, 39 S. Ct. 68 (1918) and Gilmore v. Sammons, 269 S.W. 861 (Tex. Civ.
App.—Dallas 1925, writ ref’d). Similar to U.S. Sporting Goods, these courts
recognized the plaintiffs’ appropriation claims within the scope of unfair
competition law and not as invasion of privacy actions.
11
Id. at 900. The court then stated, “[e]ven assuming Express One had a legal right to
sue for invasion of privacy by virtue of the alleged misappropriation of its name, we
conclude it produced no evidence to support its cause of action.” Id. In particular,
the court noted that Express One produced no evidence that Steinbeck appropriated
the name “Express One” for his own benefit because of any value associated with
the name. See id. The court upheld the summary judgment granted on Express
One’s appropriation claim. See id.
The Travis Law Firm argues that the Express One decision supports its
position because the court did not hold that a misappropriation cause of action is
unavailable to a corporation, rather it “assumed that the corporation plaintiff had a
viable cause of action for appropriation” and fully considered the claim. However,
the Express One court began its analysis of the issue by noting that no Texas
authority has recognized a corporation’s right to privacy. It then stated that even if
Express One had such a right, it would still not prevail on its claim. We do not read
the court’s analysis as suggesting anything more.
The Travis Law Firm also cites Anambra State Community in Houston, Inc.
v. Ulasi, 412 S.W.3d 786 (Tex. App.—Houston [14th Dist.] 2013, no pet.) in support
of its argument that a corporation can maintain a misappropriation claim. There,
ANASCO, a non-profit corporation, sued former executives alleging causes of
action for breach of fiduciary duty, fraudulent misrepresentation, invasion of privacy
12
by appropriation of corporation’s name and likeness, and criminal liability. See id.
at 789. The parties filed cross-motions for summary judgment, and the trial court
granted the executives’ motion. Id. at 789–90. The trial court subsequently issued
an order stating, among other things, that it had inadvertently granted the executives’
motion, the case presented no justiciable controversy within the court’s subject
matter jurisdiction, and to the extent that a justiciable controversy existed, the court
declined to exercise jurisdiction over the internal affairs of a private, non-profit
organization. See id. at 790. The trial court vacated its prior summary judgment
order, declined to rule on the competing summary judgment motions, and dismissed
all of the corporation’s claims. See id.
On appeal, the Fourteenth Court of Appeals upheld the portion of the trial
court’s judgment dismissing the corporation’s claim seeking to impose criminal
liability on the executives. See id. at 791. With regard to the remaining claims,
including the invasion of privacy by appropriation of name of likeness, the court of
appeals concluded that the claims presented justiciable controversies within the trial
court’s subject matter jurisdiction. See id. at 792. In making its determination, the
trial court expressly stated that it was not addressing the merits of those claims. See
id. at 791 n.3.
The Travis Law Firm argues that “ANASCO thus presents, at a minimum an
implicit, if not explicit, holding that a corporation, such as Travis & Hammond, can
13
maintain a claim for misappropriation of name or likeness.” But, a determination
that subject matter jurisdiction exists in the trial court says nothing about the viability
of the claims asserted. Indeed, the court of appeals noted that the issue of whether
the claims had merit was not before it. See id.
Invasion of privacy is the theory on which The Travis Law Firm tried its case
and on which the jury was charged. Texas courts have not recognized a
corporation’s right to privacy, and we likewise decline to do so here. The Travis
Law Firm cannot recover for invasion of privacy by appropriation of name or
likeness. Accordingly, we sustain Doggett’s first issue.4
Conclusion
Having determined that that The Travis Law Firm cannot recover on its cause
of action for invasion of privacy, we reverse the judgment of the trial court and
render judgment that The Travis Law Firm take nothing against Doggett on its
invasion of privacy claim.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
4
In light of our disposition, we need not address Doggett’s remaining evidentiary
issues and his issues challenging the recovery of attorney’s fees. See TEX. R. APP.
P. 47.1.
 |
| The Harris County Courthouse has endured all sorts of things |
JUDGMENT
Court of Appeals
First District of Texas
NO. 01-17-00098-CV
JEFFREY L. DOGGETT, Appellant
V.
THE TRAVIS LAW FIRM, P.C. F/K/A TRAVIS & HAMMOND, P.C., Appellee
Appeal from the 333rd District Court of Harris County. (Tr. Ct. No. 2014-10648).
This case is an appeal from the final judgment signed by the trial court on
November 11, 2016. After submitting the case on the appellate record and the arguments
properly raised by the parties, the Court holds that there was reversible error in the trial
court’s judgment because The Travis Law Firm cannot recover for invasion of privacy by
appropriation of name or likeness. Accordingly, the Court reverses the trial court’s
judgment and renders judgment that The Travis Law Firm take nothing against Jeffrey
L. Doggett on its invasion of privacy claim.
The Court orders that this decision be certified below for observance.
Judgment rendered May 10, 2018.
Panel consists of Justices Keyes, Bland, and Lloyd. Opinion delivered by Justice Lloyd.
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