Motion for Contempt in MARY KAY INC. vs. xxxxx xxxxx xxxxxxx| Trellis.Law

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On April 27, 2018 a Hearing was filed involving a dispute between Mary Kay Inc., and Xxxxxxx, Xxxxx Xxxxx, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
DALLAS COUNTY
1/7/2020 2:08 PM
FELICIA PITRE
DISTRICT CLERK
Darling Tellez

CAUSE NO. DC-18-05560

MARY KAY INC., § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
xxxxx xxxxx xxxxxxx, §
§
Defendant. § 116th JUDICIAL DISTRICT

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER,
CONTEMPT, AND SANCTIONS

Plaintiff Mary Kay Inc. (“Mary Kay” or “Plaintiff’) ﬁles this Motion for Show Cause

Order, Contempt, and Sanctions (“Motion”) against Defendant xxxxx xxxxx xxxxxxx (“xxxxxxx” 0r

“Defendant”) and in support would show as follows:

I. INTRODUCTION

On May 22, 2018, this Court entered a temporary injunction, prohibiting “xxxxxxx, her

agents, servants, employers, employees, attorneys, and all persons acting in concert 0r

participation with her,” from, inter alia, “[p]r0moting, distributing, 0r selling t0 other members of

the Mary Kay sales organization . . . any products 0r services which are not produced, sold, 0r

endorsed in writing by Mary Kay” (the “Injunction”).1 In September 201 8, and again in December

20 1 9, xxxxxxx sent email solicitations t0 members 0f the Mary Kay sales organization in which she

promoted her personal “coaching” and “training” services for nearly $2000 per package.

Defendant’s ongoing disrespect 0f this Court’s Injunction warrants a ﬁnding 0f contempt

and the imposition 0f sanctions. Respectfully, the Court should: (i) order Defendant t0 appear and

1
See Mot, EX. A (5/22/1 8 Agreed Temporary Injunction).

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 1
4837-6332-4592, v. 1
show cause as t0 why she should not be held in contempt; (ii) hold Defendant in contempt for her

Violations; and (iii) award Mary Kay the reasonable attorneys’ fees and costs it incurred 0n this

Motion.

II. BACKGROUND
A. xxxxxxx AGREES THAT THE MARY KAY SALES FORCE Is HANDs-OFF.

xxxxxxx signed her Independent National Sales Director Agreement (“NSD Agreement”)

with Mary Kay 0n December 1, 2002. Among other rights and beneﬁts, Mary Kay gave xxxxxxx

increased commissions and access t0 personal information and data for thousands 0f Mary Kay

Independent Beauty Consultants, including their email and home addresses. In exchange for this

information, as well as other rights, xxxxxxx agreed not t0 “[p]r0mote, distribute, 0r sell t0 other

members 0f the Mary Kay sales organization any products 0r services which are not produced,

sold, 0r endorsed by Mary Kay.”2 When signing the NSD Agreement, xxxxxxx also agreed that this

prohibition would extend for a period 0f two years after the termination 0f her NSD Agreement,

during which time she would not use names and contact information that she acquired during her

time as a NSD t0 promote services and products t0 other members 0f the Mary Kay independent

sales force.3

Contemporaneously with the execution 0f the NSD Agreement, xxxxxxx chose t0

participate in Mary Kay’s Family Security Program, a voluntary award program offered t0 NSDS.

The FSP offered her future monthly payments and other valuable consideration upon the retiring

0f her Mary Kay business, but the offer required xxxxxxx t0 commit t0 an increased time period for

the non-solicitation provision. In order t0 participate, xxxxxxx was required t0 agree that the two-

year time period prescribed in her NSD Agreement would increase t0 a 15-year period (0r “for so

2
See Mot, EX. B (NSD Agreement) at § 8.10.
3
See id.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 2
4837-6332-4592, v. 1
long as Participant is entitled t0 receive beneﬁts under the Plan”), the time period during which

she would receive FSP payments. xxxxxxx agreed and executed her FSP Agreement 0n December

1, 2002.4

B. MARY KAY SUEs xxxxxxx AND OBTAINS A TEMPORARY INJUNCTION.

In October 2017, Mary Kay and xxxxxxxxxxxxx, ﬁnding themselves in disaccord, reached

an agreement, negotiated between both parties’ counsel, concerning xxxxxxx’s existing contracts

with the company and her participation in Mary Kay’s Family Security Program. Mary Kay agreed

t0 give xxxxxxx an opportunity t0 meet contractual obligations necessary t0 participate in the

program. For her part, xxxxxxx agreed, among other things, not t0 promote non-Mary Kay products

and services t0 other Mary Kay Independent Beauty Consultants. What resulted was a negotiated

amendment t0 the NSD Agreement that would allow xxxxxxx t0 continue t0 participate in the FSP

subject t0 certain conditions. Those conditions included her reafﬁrmation that she would not solicit

0r promote t0 the Mary Kay independent sales force members services 0r products not produced

0r endorsed by Mary Kay. Thus, 0n October 18, 20 1 7, xxxxxxx executed an amendment t0 her NSD

Agreement (the “NSD Amendment”), avoiding immediate termination 0f her NSD Agreement and

allowing her t0 transition into emeritus status as 0f January 1, 201 8, where she would receive FSP

payments.

On April 16, 2018 (and the days after), however, Defendant sent unsolicited mass emails

t0 Mary Kay’s sales representatives promoting her “health and wellness podcast.” In doing so, she

solicited business for John Monhollon, M.D., 0f the Florida Integrated Medical Center, and herself.

As alleged in Mary Kay’s Petition, this mass email solicitation constituted a Violation 0f xxxxxxx’s

National Sales Director and Family Security Program Agreements with the Company—both 0f

4
See generally Mot, EX. C (FSP Agreement).

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 3
4837-6332-4592, v. 1
which require that Defendant not promote t0 members 0f the Mary Kay sales force products 0r

services not produced, sold, 0r endorsed by Mary Kay.5

Regarding the former, Defendant not only promoted Dr. Monhollon’s medical services but

also offered t0 schedule “consultation” appointments with him, including for a series of B12 shots

0n which Defendant promised Mary Kay’s sales force would receive a discount.6 Regarding the

latter, Defendant not only promoted the products 0f another direct sales company (ASEA) t0 Mary

Kay’s sales representatives, but also encouraged them t0 sign up through her as ASEA Independent

Associates and t0 “partner” with her t0 sell these same products.7

On April 27, 2018, Mary Kay ﬁled suit against xxxxxxx, asserting claims for breach 0f

contract, injunctive relief, and attorneys’ fees and costs. Mary Kay sought a temporary restraining

order, which this Court issued 0n May 7, 2018. Included in this Court’s order was a prohibition

against xxxxxxx “[p]r0moting, distributing, 0r selling t0 other members 0f the Mary Kay sales

organization in the United States 0f America any products 0r services which are not produced,

sold, 0r endorsed in writing by Mary Kay.”8 On 0r about May 17, 20 1 8, Mary Kay and Defendant

executed a Rule 11 Agreement memorializing Defendant’s agreement “t0 the entry 0f an Agreed

Temporary Injunction t0 extend the Temporary Restraining Order through the ﬁnal adjudication

0f this matter.”9 On May 22, 2018, the Court entered the Injunction upon the Parties’ joint

motion.” The Injunction imposes broad—but speciﬁc—prohibitions 0n Defendant and “all

persons 0r entities acting in concert 0r participation with her” from engaging in the same conduct

5

6
See Pl.’s Second Am. Pet. at W 13-28.
Pl.’s Mot. for SJ. at 9-12.
7
See id.
8

9

1°
See Mot, M
See Mot, EX. D (5/7/18 Temporary Restraining Order).
(5/23/18 Defendant’s Notice of Rule 11 Agreement).
See Mot, EX. A (5/22/1 8 Agreed Temporary Injunction).

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 4
4837-6332-4592, v. 1
prohibited by the Court’s earlier—entered TRO. Speciﬁcally, the Court’s Injunction provideszll

IT IS HEREBY ORDERED that Defendant xxxxx xxxxx xxxxxxx, her agents, servants,

employers. employees, attorneys and all persons Dr entities acu’ng i.n concert or participation with

her are mm
a)
from engaging in the following actions:

Promoting, distributing. or selling to other members of the Mary Kay sales
organization in the United States of America any products or services which are not
pmduoed. sold. or endorsed in writing by Mary Kay;

b) Recruiting, directly or indirectly Mary Kay Beauty Consultants, Sales Directors, or
National Sales Directors in the United States of America t0 sell products or services
other than those sold by Mary Kay, or to use or permit any other person use any m
names, mailing lists, or other information which xxxxxxx has obtained during her
association with Mary Kay for recruiting or for promotion of the sale of any other
company's products or services;

In agreeing to entry of the Injunction, Defendant ﬁlrther agreed to its enforceability under

the Texas Rules—i.e., she “stipulate[d] that the requirements of Rule 683 0f the TEXAS RULE OF

CIVIL PROCEDURE are satisﬁed With respect to the entry of this Agreed Temporary Injunction?”

C. DEFENDANT REPEATEDLY VIOLATES THE INJUNCTION, DEMONSTRATING HER
CONSCIOUS BREACH 0F THE PARTIES’ CONTRACTS AND THE DISINGENUOUSNESS 0F
HER “DEFENSES” 0F “MISTAKE” AND “LACK 0F AUTHORITY.”

Notwithstanding the ﬁling 0f this litigation—and entry of the Court’s Temporary

Injunction (to which Defendant agreed)—xxxxxxx has persisted in her campaign to solicit Mary

Kay’s sales force. Indeed, the ink was not even dry on the Court’s Injunction before xxxxxxx chose

to disregard its clear-cut prohibitions. Mary Kay has learned that xxxxxxx, at least three times, has

promoted—and offered for sale to Mary Kay’s sales force—training and coaching services that

Mary Kay does not endorse.

First, in or around September 2018, Defendant offered to Mary Kay’s sales force—in

exchange for nearly $2,000—“0ne-on-one coaching” services that she promised would “unleash

[their] full potential” (126., her “CEO Series”):13

11
See id.
12
See id.
13
See Mot, EX. F.

PLAINTIFF’s MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 5
4837-63324592, v. 1
CEO Series
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Register at www.jamievrinios.com

Jennifer Chavez (discussed ﬁlrther below) admitted at her deposition that, like the April

16th email, the “CEO Series” solicitation also was sent to Mary Kay sales representatives.” T0 be

sure, at her deposition, Chavez identiﬁed certain 0f these Mary Kay individuals 0n a data-export

sheet naming the recipients of this email by circling their names in bright green:15

_
kbattles@marykay.cnm 2018-09a19T05t49:49.0002
wandalysdiaz a kavLom 2018—09-18T03:12:02.DDOZ
mo ykehoe@aol.com 2018-09~18T13:36:59.0002
khamira @mawkayxum‘j' 2013-09-1?T17:20:08.0002

But far more than just three of Mary Kay sales representatives received Defendant’s

“coaching” advertisement. Through ﬁlrther investigation, Mary Kay learned that this solicitation

was sent t0 at least 69 then-active Mary Kay sales representatives.”

14
Mot., Ex. G (1 1/2/18 Chavez Dep. Tr.) at 8123-9423.
15
Mot., Ex. H (Chavez Dep. EX. 3 1).
15
Mot., Ex. I (L. Beitler Decl.) at 1T 9; Mot, Ex. J (L. Beitler Decl. at Ex. C-l).

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 6
4837-63324592, v. 1
Second, just days ago, Defendant sent t0 Mary Kay’s sales force another solicitation for

her “coaching” services—i.e., for her purported “Awaken the Warrior Master Class”:17

Are you registered for Awaken
The Warrior Master Class?

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Jame vamos

By way of this solicitation, xxxxxxx offers Mary Kay’s sales representatives the opportunity

t0 register for her “Awaken the Warrior” seminar at a cost 0f $225. 18 Mary Kay is aware of at least

one Independent Sales Director who received this solicitation 0n December 3, 2019 and believes

that further investigation would reveal that it was sent to additional members of Mary Kay’s sales

force as well.”

Third, also just days ago, xxxxxxx sent to Mary Kay’s sales force another solicitation to

purchase Defendant’s “transformational coaching” serviceszzo

17
Mot, EX. K.
18
See id.
19
Mot, EX_L.
20
Mot, EX. M.

PLAINTIFF’s MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 7
4837-63324592, v. 1
Transformational Coaching
Begins January 2020
(kl excluswe Coachmg mm Jam‘s: Unruos‘

m... w
mm mexnusm (4
oo

Mary Kay is aware of at least two Independent Sales Directors Who received this

solicitation on December 4, 2019 and, here too, believes that further investigation would reveal

that it was sent to additional members of Mary Kay’s sales force as well.”

A11 of this conduct, Whether considered alone or together, violates the Injunction, which is

unequivocal in its directive to xxxxxxx—do not promote t0 members of Mary Kay’s sales force

products or services not produced, sold, or endorsed by Mary Kay. And, equally signiﬁcant, the

repeated occurrence ofthese Violations demonstrates the falsity of Defendant’s claim that the April

21
Mot., Ex. N; Mot, EX. O.

PLAINTIFF’s MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 8
4837-63324592, v. 1
16th email was somehow sent in error. Cf. Tex. R. EVid. 404(b)(2) (evidence 0f other acts “may

be admissible” t0 “pr0V[e] . . . absence 0f mistake.”).

D. xxxxxxx ADMITS WORKING IN CONCERT WITH JENNY CHAVEZ T0 MASS EMAIL MARY
KAY’s SALES FORCE.

It is indisputable that Jenny Chavez has been working in concert 0r participation with

xxxxxxx for the mass mailings 0f the solicitations that were received by Mary Kay beauty

consultants. Chavez was once a Mary Kay independent beauty consultant, until her resignation,

when she joined xxxxxxx at other direct sales companies.” xxxxxxx readily admits that Chavez and

she work in concert 0n her business dealings. In fact, xxxxxxx describes Chavez as part 0f a team

who works with xxxxxxx’s company, JCV Globa1.23 Chavez is someone who works for xxxxxxx,

helping her with things, including sending any emails that g0 out from xxxxxxx’s ofﬁce.” xxxxxxx

allowed Chavez t0 set up the mechanism for mailing xxxxxxx’s promotions, including which blast

email service t0 utilize.” According t0 xxxxxxx, Chavez handled the “technical stuff” for her email

blasts and “[t]hat’s what Jenny always did.”26 And when it came t0 any effort t0 purge email

addresses for Mary Kay beauty consultants, xxxxxxx left that task t0 Chavez as well, even after this

Court issued its Injunction.”

Chavez conﬁrmed the fact that she worked in concert with xxxxxxx when mass emailing

xxxxxxx’s solicitations. Chavez testiﬁed that “when [xxxxxxx] wants t0 send an email t0 a group 0f

people” Chavez “typically compose[s] the email” and “send[s] it t0 [xxxxxxx] for approval,”

because Chavez is “sending [the emails] out 0n her behalf?” Simply put, xxxxxxx asked Chavez

22

23

24
See Mot,
Id. at
M (1 1/1/18
19:20-25; 48:14-23.
xxxxxxx Dep. Tr.) at 200:1-21.

Id. at 20:2-1 1; 50:4-14; 182:20-22.
25
Id. at 205:14-22.
26
Id. at 206:9-17.
27
Id. at 218:2-24; 24520-24624; 247:1 1-20.
28
See Mot, EX. G at 10:3-1 1 :20.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 9
4837-6332-4592, v. 1
“t0 d0 the e-mails” and, once approved by Defendant (including the email’s content), she sends

the email.”

Consistent with this practice, Chavez testiﬁed that she sent out the April 16th email.”

Chavez conceded that sending the mass solicitation t0 Mary Kay’s sales force was a “huge” breach

“[b]ecause it could Violate the restrictions Mary Kay” had with Defendant “at that time,” as

Defendant “knew she wasn’t supposed t0 send e-mails t0 [Mary Kay’s salesforce].31 Similarly, at

her own deposition, xxxxxxx testiﬁed that it would be a “material breach” 0f her contracts with

Mary Kay—and a Violation 0f the Court’s Temporary Injunction—if, as here, she “allowed

anybody accidentally 0r intentionally” t0 send “marketing materials” (like those at issue 0n this

Motion) promoting products 0r services not offered by Mary Kay t0 the Company’s sales force:32

Q. Okay. So you certainly would not have sent 0r anybody 0n your behalf
would have sent after the court ordered you t0 stop, you would not have
allowed anybody accidentally 0r intentionally any other marketing type
materials, any — anything that would Violate this order; right?

A. N0.

Q. And you’d agree that if that was done, it was not only a material breach 0f
the contracts that you’ve sign[ed] with Mary Kay, including for your FSP
payments, you’d agree it was — it was something that the Court had ordered
you not t0 d0 and it was a Violation 0f the court’s order?

A. Yes.

29
See id. at 11:1-20.
3°
See id. at 25:21-26:14.
31

32
See Mot, M
See id. at 48:17-8; 69:3-15.
at 237:5-240:7; 251:12-252:8.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 10
4837-6332-4592, v. 1
E. THE RELIEF SOUGHT BY MARY KAY Is NOT WITHOUT PRECEDENT AND Is FULLY
SUPPORTED BY RECENT DECISIONS 0F THIS COURT.

The relief Mary Kay seeks by way 0f this Motion is factually and legally justiﬁed, and

not without precedent. Indeed, Judge Moye' recently held that a defendant’s similar Violation 0f

an agreed injunction merited: (i) conﬁnement in Dallas County jail; (ii) the imposition of

thousands 0f dollars in statutory ﬁnes; and (iii) an attorneys’ fee award exceeding $21,000.00.”

As here, the defendant in that case was a former independent sales consultant 0f the plaintiff

direct-sales company. And there, as here, the plaintiff direct—sales company had sued defendant

for breaching his non-competition and non-solicitation agreements with the company. That

ultimately resulted in the entry 0f an agreed injunction, which defendant promptly violated by

soliciting plaintiff’s sales force t0 sell products that plaintiff did not sell (126., t0 sell products for a

different direct—sales organization)“ Defendant’s conduct is similarly contemptible: she agreed t0

the Court’s order broadly prohibiting her from “promoting” t0 Mary Kay’s sales force products

and services that Mary Kay does not offer, yet has repeatedly done so.

III. ARGUMENTS & AUTHORITIES
A. THE COURT SHOULD ORDER DEFENDANT T0 APPEAR AND SHOW CAUSE As T0 WHY SHE
SHOULD NOT BE HELD IN CONTEMPT FOR VIOLATING THE INJUNCTION.

1. Legal authority.

3“
Texas courts authority t0 regulate trials, and accordingly, t0 punish for contempt, is broad

and plenary.” Ex Part6 Jacobs, 664 S.W.2d 360, 363 (Tex. Crim. App. 1984). “[T]he power t0

punish for contempt is an inherent power 0f a court and an essential element 0f judicial

independence and authority.” Ex Part6 Gorena, 595 S.W.2d 841, 843 (Tex. 1979). “This power

33
See Mot, EX. Q (5/3/2018 Order, Nerz'um Int’l., LLC v. Cahill (Cause No. DC-18-01077, 14th Judicial District,
Dallas County)).
34
See id.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 11
4837-6332-4592, v. 1
enables courts t0 persuade parties t0 obey a prior order 0r decree 0f the court so that such prior

order will not be rendered ineffectual by recalcitrant litigants.” Id.

“Contempt 0f court is broadly deﬁned as disobedience t0 0r disrespect 0f a court by acting

in opposition t0 its authority.” Ex Parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).

Contemptible acts are those which are “reasonably calculated t0 impede, embarrass, 0r obstruct

the court in the discharge ofits duties.” In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. Rev. 1995).

Simply put, they are failures “t0 accomplish what was ordered in meaningful respects.” Id. Thus,

a person who willfully disobeys a valid court order—including an injunction—is guilty of

contempt. See Exparz‘e Hall, 854 S.W.2d 656, 658 (TeX. 1993).

With respect t0 injunctions in particular, “[d]isobedience 0f an injunction may be punished

by the court 0r judge . . . as a contempt.” TEX. R. CIV. P. 692; Exparte Jackman, 663 S.W.2d 520,

524 (Tex. App.—Dallas 1983, n0 writ) (“The violation 0f an injunction is punishable as a

contempt 0f court and the power t0 punish is inherent in the court and incident t0 its power t0

grant injunctions.” (emphasis added)). In such event, the Court may issue a show cause order

requiring the person “t0 appear . . . and show cause why he should not be adjudged in contempt 0f

court.” TEX. R. CIV. P. 692. Section 21.002 0f the TEXAS GOVERNMENT CODE allows a court t0

punish each act 0f criminal contempt with a ﬁne of not more than $500, conﬁnement in the county

jail for not more than six months, 0r both. Cadle C0. v. Lobingier, 50 S.W.3d 662, 667-68 (Tex.

App.—F0rt Worth 2001, pet. denied)”

35
Criminal contempt is punitive in nature, wherein “the contemnor is being punished for some completed act Which
affronted the dignity and authority of the court. Ex parte Werblud, 536 S.W.2d
542, 545 (Tex. 1976); Ex part6 Johns,
807 S.W.2d 768, 771 (Tex. App.—Dallas 1991, no writ). “In a civil contempt matter, the court is attempting to
persuade the contemnor to obey a previous order.” Ex parte Johns, 807 S.W.2d at 770.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 12
4837-6332-4592, v. 1
2. A contemptﬁnding is necessary t0 address Defendant’s disregard 0fthis Court’s
Injunction.

The Injunction prohibits xxxxxxx from “[p]romoting, distributing, 0r selling t0 other

members 0f the Mary Kay sales organization . . . any products 0r services which are not produced,

sold, 0r endorsed in writing by Mary Kay.”36 The evidence proves that she knowingly, willfully,

and intentionally promoted and offered for sale t0 Mary Kay’s sales force services that Mary Kay

does not sell 0r endorse. Accordingly, pursuant t0 TEXAS RULE OF CIVIL PROCEDURE 692, and its

inherent authority, the Court should order Defendant t0 appear and show cause as t0 why she

should not be held in contempt for Violating the Injunction.

B. THE COURT SHOULD SANCTION DEFENDANT BY, AT A MINIMUM: (I) PRECLUDING HER
FROM OFFERING ARGUMENT 0R EVIDENCE As T0 HER DEFENSES 0F “MISTAKE” AND
“LACK 0F AUTHORITY”; (2) IMPOSING CRIMINAL CONTEMPT PENALTIES; AND
(3) ORDERING THE PAYMENT 0F THE ATTORNEYS’ FEES AND COSTS MARY KAY
INCURRED ON THIS MOTION.

Texas courts have the inherent power t0 sanction for abuses 0f the judicial process, which

may not be covered by rule 0r statute. See Union Carbide Corp. v. Martin, 349 S.W.3d 137, 147

(Tex. App.—Dallas 201 1, n0 pet). The power t0 sanction, like contempt, exists t0 allow a court

t0 enforce its orders by imposing a penalty for their Violation. Id. (“the inherent power [t0 sanction]

exists t0 enable a court t0 effectively perform its judicial functions and t0 protect its dignity,

independence, and integrity.”); see also Hayes v. Hayes, 920 S.W.2d 344, 346 (Tex. App.—

Texarkana 1995, writ denied). The power t0 sanction further exists t0 the extent necessary t0 deter,

alleviate, and counteract bad faith abuse 0f the judicial process, such as any signiﬁcant interference

with the traditional core functions 0f the court. Union Carbide Corp, 349 S.W.3d at 147. The core

functions 0f a trial court include “hearing evidence, deciding issues 0f fact raised by the pleadings,

deciding questions 0f law, rendering ﬁnal judgments, and enforcing judgments.” Id.

36
See M0t., EX. A.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 13
4837-6332-4592, v. 1
Texas law likewise permits the trial court t0 sanction a party for out-of-court conduct in

Violation 0f an injunction, provided that the party is afforded notice and opportunity t0 be heard,

and the movant shows that such sanctions are warranted. See, e.g., In re Hereweareagain, Ina,

383 S.W.3d 703, 708-09 (Tex. App.—H0uston [14th Dist] 2012, n0 pet). When shaping such

C“
sanctions, it has been held that a court should take into account the character and magnitude 0f

the harm threatened by the continued contumacy,’ ‘the probable effectiveness 0f [the] suggested

sanction in bringing about the result desired,’ and ‘the amount 0f defendant's ﬁnancial resources

and the consequent seriousness 0f the burden t0 that particular defendant.” Alberti v.

Klevenhagen, 610 F. Supp. 138, 142 (SD. TeX. 1985) (Citing United States v. United Mine

Workers, 330 U.S. 258, 303-304, 67 S. Ct. 677, 701, 91 L. Ed. 884 (1947)). The decision t0 impose

a sanction is left t0 the discretion 0f the trial court and will be set aside only upon a showing 0f

abuse 0f discretion. McWhorter v. Sheller, 993 S.W.2d 781, 788 (Tex. App.—H0uston [14th Dist]

1999, pet. denied); In re Bennett, 960 S.W.2d 35, 40 (TeX. 1997).

Courts have struck parties’ asserted defenses—and precluded the introduction 0f argument

and evidence relating t0 the same—in similar circumstances. See, e.g., Estate ofRadelat, N0. 02-

17-00264-CV, 2019 WL 5792652 (Tex. App.—Ft. Worth NOV. 7, 2019, n0 pet.) (afﬁrming trial

court order “striking appellants’ answer, and with it, their counterclaims and defenses 0f

limitations,” and ﬁnding the sanction warranted, because, among other reasons, appellants violated

the court’s temporary injunction—ﬁnding that such “misconduct generally favors the notion that

appellants’ defenses lack merit”).

Courts also have awarded attorneys’ fees and costs as a sanction in connection with

imposing contempt punishments (including jail time) when ﬁnding that a party violated an

injunction. See, e.g., Hodge v. Hicks Airﬁeld, Ina, N0. 2-03-012-CV, 2003 WL 1564315 (TeX.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 14
4837-6332-4592, v. 1
App.—F0rt Worth March 27, 2013, n0 pet.) (contempt order for Violation 0f injunction imposed

conﬁnement and assessed $8,000 in attorneys’ fees); Inner City Mgmt. v. City ofDallas, N0. 05-

05-01618-CV, 2006 Tex. App. LEXIS 907 (Tex. App.—Dallas Feb. 2, 2006, n0 pet.) (contempt

order for Violation 0f temporary injunction assessed $500 ﬁne per Violation and awarding costs

and attorneys’ fees as sanctions); Nerium Int’l., LLC v. Cahill, N0. DC-18-01077 (14th Dist. Ct.,

Dallas County May 3, 2018) (sanctioning defendant $21,219.50 for plaintiff’s attorneys’ fees and

costs incurred upon defendant’s Violation 0f the court’s injunction).

In the instant case, Defendant’s Violation 0f the Court’s Injunction has signiﬁcantly

obstructed the proper administration ofjustice and interfered with the Court’s legitimate exercise

0f its core functions. T0 deter, alleviate, and counteract Defendant’s bad faith abuse 0f the judicial

process, the Court, pursuant t0 its inherent authority, should, at a minimum: (i) preclude Defendant

from offering at trial any argument 0r evidence 0f “mistake” 0r “lack 0f authority”; (ii) impose

criminal contempt penalties; and (iii) award Mary Kay the reasonable attorneys’ fees and costs it

incurred in connection with the ﬁling and hearing 0f this Motion.

IV. PRAYER

For the aforementioned reasons, Mary Kay respectfully requests that the Court grant

Mary Kay’s Motion for Show Cause Order, Contempt, and Sanctions; order that Defendant

xxxxxxx appear and show cause as t0 why she should not be held in contempt for Violating the

Injunction; hold Defendant in contempt and impose monetary and other penalties the Court deems

just; sanction Defendant as requested herein; and grant Mary Kay all other relief at law or in equity

t0 which it is justly entitled.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 15
4837-6332-4592, v. 1
Dated: January 7, 2020 Respectfully submitted,

/s/ Christopher]. Schwegmann
Christopher J. Schwegmann
Texas Bar N0. 2505 1 3 15
cschwegmann@lynnllp.com
Jared D. Eisenberg
State Bar N0. 240923 82
jeisenberg@lynnllp.com
LYNN PINKER COX & HURST, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-98 1 -3800
Facsimile: 2 14-98 1 -3839

Jill Herz
State Bar N0. 00785930
service@jillherz.com
ATTORNEY AT LAW
430 Founders Square
900 Jackson Street
Dallas, Texas 75202
(214) 745-4567 — (Telephone)
(214) 745-1 156 — (Facsimile)

ATTORNEYS FOR PLAINTIFF
MARY KAY INC.

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 16
4837—6332—4592, V. 1
CERTIFICATE OF CONFERENCE

Counsel for movant and counsel for respondent personally conducted a conference at
which there was a substantive discussion 0f every item presented t0 the Court in this motion and
despite best efforts the counsel have not been able t0 resolve those matters presented.

7th
Certiﬁed t0 the day 0f January, 2020

/s/Jared D. Eisenberg
Jared D. Eisenberg

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served upon all counsel 0f record 0n
January 7, 2020 via e-ﬁle.

/S/Jared D. Eisenberg
Jared D. Eisenberg

PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER, CONTEMPT, AND SANCTIONS PAGE 17
4837-6332-4592, v. 1
EXHIBIT A

Page 18
CAUSE NO. DC-18-05560

MARY KAY INC.,
INC., §
§ IN THE DISTRICT COURT OF
§
Plaintiff,
Plaintiff, §
g
§
v.
v. §
g DALLAS
DALLASCO UNTY,TEX
COUNTY, AS
TEXAS
§
xxxxx xxxxx xxxxxxx, §
g
§
Defendant.
Defendant. §
g 116T“ JUDICIAL DISTRICT
116™

TEMPORARY
AGREED TEMPORAR INJUNCTION
Y INJUNCTION

Before Court
the Court
Before the is Plaintiff Mary Kay Inc.’s
is Plaintiff Kay") Application
("Mary Kay”)
Inc.' s (“Mary Temporary
for aa Temporary
Application for

Injunction (“the
Injunction Tl").
("the TI”). The finds —
Court finds
The Court - and the Parties
and the stipulate —

Case Info

Judge

PARKER, TONYA Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 23, 2020

Case Filing Date

April 27, 2018

County

Category

CNTR CNSMR COM DEBT

Status

CLOSED

Parties

EISENBERG, JARED D Attorney for the Plaintiff
HERZ, JILL Attorney for the Plaintiff
LURICH, RYAN K Attorney for the Defendant
MARY KAY INC. Plaintiff
SCHWEGMANN, CHRISTOPHER J Attorney for the Plaintiff
STEWART, AMY M Attorney for the Plaintiff
xxxxxxx, xxxxx xxxxx Defendant
Christopher Smitherman Attorneys for Defendants
Mary Klimesh Attorney
Gary Wilson Attorney
Tonika Brown Attorneys for Plaintiffs
Beth Jaynes Attorney
Andrew Weber Attorney
Robert Gilbreath Attorney

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