Preview
FILED
8/1/2022 4:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kellie Juricek DEPUTY
CAUSE NO. DC-18-05560
MARY KAY, INC., § IN THE DISTRICT COURT
Plaintiff, g
v. g 116th JUDICIAL DISTRICT
xxxxx xxxxx xxxxxxx, g
Defendant/ g
Counter-Plaintiff. § DALLAS COUNTY, TEXAS
DEFENDANT’S TRIAL BRIEF
T0 THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, xxxxx xxxxx xxxxxxx (“Defendant” or “xxxxxxx”) and files this Trial Brief
and, for cause, would respectfully show the Court as follows:
I.
A. PlaintlffElected to Treat the Contract as Continuing
1. Texas case law directly contradicts the position that Plaintiff’s argues — that Plaintiff
is excused from performing its contractual obligations to pay xxxxxxx benefits under the FSP.
2. When a party treats the contract as continuing, seeking to enforce the filture benefit of
the contract, the party makes an irrevocable election that prevents them failing to perform under the
contract. Henry v. Masson, 333 S.W.3d 825 (Tex. App—Houston [1st Dist.] 2010, no pet).
Seeking to benefit from the contract after the breach operates as a conclusive choice depriving the
non-breaching party of an excuse for his own non-performance. Id. (citing Hanks v. GAB Bus.
Servs., Ina, 644 S.W.2d 707, 708 (Tex. 1982)). By seeking to enforce the contract and obtaining an
injunction enforcing the covenant not to compete in the filture, which is the benefit of the bargain
under the FSP, Plaintiff has elected to treat the contract as continuing and thus is obligated to
DEFENDANT’S TRIAL BRIEF PAGE 1
perform fully under the contract. Long Trusts v. Grifiin, 222 S.W.3d 412, 415-16 (Tex. 2007);
Hanks, 644 S.W.2d at 708; Hemfy, 333 S.W.3d at 841-42.
3. These cases derive their results from the long-standing doctrine —
quasi estoppel.
Quasi estoppel applies to preclude a party from taking contradictory positions: it precludes a person
from asserting, to another's disadvantage, a right inconsistent with a position previously taken. Lopez
v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000); see Schauer v. Von
Schauer, 138 S.W. 145, 149—50 (Tex.Civ.App.-Austin 1911, writ ref‘d) (“Where aperson has, with
knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular
claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or
conduct to the prejudice of another.”). The doctrine applies when it would be unconscionable to
allow a person to maintain a position inconsistent with one in which he acquiesced. Lopez, 22
S.W.3d at 864; Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.-Corpus Christi 1994,
writ denied); Vessels v. Anschutz C0rp., 823 S.W.2d 762, 765—66 (Tex.App.-Texarkana 1992, writ
denied). Unlike equitable estoppel, quasi-estoppel does not require a showing of a false
representation or detrimental reliance. Steubner Realty I9, Ltd., 817 S.W.2d at 164.
B. Independent Promise
4. An independent promise is a promise that must be performed by a party even if
another party does not perform according to the parties’ agreement. World Broad. Sys. V. Eagle
Broad Co., 162 S.W.3d 463, 465 (Tex. App—San Antonio 1942, writ dism’d) (when promise
relates to only part of consideration and breach of promise may be compensated for in damages,
promise is to be regarded as independent); see, e. g., Hanks v. GAB Bus. Servs., 644 S.W.2d 707, 708
(Tex. 1982) (covenant not to compete applied to only part of parties’ contract; thus, it was
DEFENDANT’S TRIAL BRIEF PAGE 2
independent promise and its breach did not excuse party from obligation to pay purchase price for
business).
5. Thus, Defendant’ s alleged breach of the independent covenant not-to-solicit or not-to-
compete does not excuse Plaintiff from its separate promise to pay Defendant benefits under the FSP
—
Mary Kay’s deferred compensation plan that Defendant earned after 20 years of service to
Plaintiff.
Respectfiilly submitted,
/s/ Gary D. Wilson
Gary D. Wilson*
Florida Bar No. 0846406
gwilson@wilsonmccoylaw.com
WILSON MCCOY, P.A.
Point 100 Building
100 E. Sybelia Avenue, Suite 205
Maitland, Florida 32751
(407) 803-5400 (Telephone)
(407) 803-4617 (Telecopier)
* Admitted Pro Hac Vice
and
K. Lurich
/s/ Rxan
Ryan K. Lurich
State Bar No. 24013070
rlurich@fflawoffice.com
FRIEDMAN & FEIGER, LLP
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
ATTORNEYS FOR DEFENDANT
xxxxx CRUISE xxxxxxx
DEFENDANT’S TRIAL BRIEF PAGE 3
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of this pleading has been served on all
counsel of record on this the 1st day of August 2022, in accordance with the Texas Rules of Civil
Procedure.
Christopher J. Schwegmann, Esq.
Lynn Pinker Cox & Hurst, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981 -3800 (Telephone)
(214) 981 -3839 (Telecopier)
Email: cschwegmann@lynnllp.com
Jill Herz, Attorney at Law
12240 Inwood Road #400
Dallas, Texas 75244
(214) 745-4567 (Telephone)
Email: jherz@jillherz.com
K. Lurich
/s/ Ryan
Ryan K. Lurich
#1023046
DEFENDANT’S TRIAL BRIEF PAGE 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Nura Al-Maleh on behalf of Ryan Lurich
Bar No. 24013070
nalmaleh@fflawoffice.com
Envelope ID: 66856678
Status as of 8/2/2022 10:52 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Greg Brassfield gbrassfield@lynnllp.com 8/1/2022 4:48:43 PM SENT
S BRADLEY SBRADLEY@DALLASCOUNTY.ORG 8/1/2022 4:48:43 PM SENT
gl
gaysmith@dallascounty.org 8/1/2022 4:48:43 PM SENT
Christiana Cochrane ccochrane@wilsonmccoylaw.com 8/1/2022 4:48:43 PM SENT
Teresa Jones Teresa.Jones@dallascounty.org 8/1/2022 4:48:43 PM SENT
Ryan Lurich rlurich@fflawoffice.com 8/1/2022 4:48:43 PM SENT
Nura Al-Maleh nalmaleh@fflawoffice.com 8/1/2022 4:48:43 PM SENT
April Sandefur asandefur@lynnllp.com 8/1/2022 4:48:43 PM SENT
Jared Eisenberg jeisenberg@lynnllp.com 8/1/2022 4:48:43 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Nura Al-Maleh on behalf of Ryan Lurich
Bar No. 24013070
nalmaleh@fflawoffice.com
Envelope ID: 66856678
Status as of 8/2/2022 10:52 AM CST
Associated Case Party: MARY KAY INC.
Name BarNumber Email TimestampSubmitted Status
Scott Smoot ssmoot@lynnllp.com 8/1/2022 4:48:43 PM SENT
Jill Herz service@jillherz.com 8/1/2022 4:48:43 PM SENT
NATALIE STALLBOHM nstallbohm@lynnllp.com 8/1/2022 4:48:43 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Nura Al-Maleh on behalf of Ryan Lurich
Bar No. 24013070
nalmaleh@fflawoffice.com
Envelope ID: 66856678
Status as of 8/2/2022 10:52 AM CST
Associated Case Party: JAMIECRUSEVRINIOS
Name BarNumber Email TimestampSubmitted Status
GARY WILSON gwilson@wilsonmccoylaw.com 8/1/2022 4:48:43 PM SENT
Preview
FILED 8/1/2022 4:48 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kellie Juricek DEPUTY CAUSE NO. DC-18-05560 MARY KAY, INC., § IN THE DISTRICT COURT Plaintiff, g v. g 116th JUDICIAL DISTRICT xxxxx xxxxx xxxxxxx, g Defendant/ g Counter-Plaintiff. § DALLAS COUNTY, TEXAS DEFENDANT’S TRIAL BRIEF T0 THE HONORABLE JUDGE OF SAID COURT: COMES NOW, xxxxx xxxxx xxxxxxx (“Defendant” or “xxxxxxx”) and files this Trial Brief and, for cause, would respectfully show the Court as follows: I. A. PlaintlffElected to Treat the Contract as Continuing 1. Texas case law directly contradicts the position that Plaintiff’s argues — that Plaintiff is excused from performing its contractual obligations to pay xxxxxxx benefits under the FSP. 2. When a party treats the contract as continuing, seeking to enforce the filture benefit of the contract, the party makes an irrevocable election that prevents them failing to perform under the contract. Henry v. Masson, 333 S.W.3d 825 (Tex. App—Houston [1st Dist.] 2010, no pet). Seeking to benefit from the contract after the breach operates as a conclusive choice depriving the non-breaching party of an excuse for his own non-performance. Id. (citing Hanks v. GAB Bus. Servs., Ina, 644 S.W.2d 707, 708 (Tex. 1982)). By seeking to enforce the contract and obtaining an injunction enforcing the covenant not to compete in the filture, which is the benefit of the bargain under the FSP, Plaintiff has elected to treat the contract as continuing and thus is obligated to DEFENDANT’S TRIAL BRIEF PAGE 1 perform fully under the contract. Long Trusts v. Grifiin, 222 S.W.3d 412, 415-16 (Tex. 2007); Hanks, 644 S.W.2d at 708; Hemfy, 333 S.W.3d at 841-42. 3. These cases derive their results from the long-standing doctrine — quasi estoppel. Quasi estoppel applies to preclude a party from taking contradictory positions: it precludes a person from asserting, to another's disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000); see Schauer v. Von Schauer, 138 S.W. 145, 149—50 (Tex.Civ.App.-Austin 1911, writ ref‘d) (“Where aperson has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another.”). The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced. Lopez, 22 S.W.3d at 864; Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.-Corpus Christi 1994, writ denied); Vessels v. Anschutz C0rp., 823 S.W.2d 762, 765—66 (Tex.App.-Texarkana 1992, writ denied). Unlike equitable estoppel, quasi-estoppel does not require a showing of a false representation or detrimental reliance. Steubner Realty I9, Ltd., 817 S.W.2d at 164. B. Independent Promise 4. An independent promise is a promise that must be performed by a party even if another party does not perform according to the parties’ agreement. World Broad. Sys. V. Eagle Broad Co., 162 S.W.3d 463, 465 (Tex. App—San Antonio 1942, writ dism’d) (when promise relates to only part of consideration and breach of promise may be compensated for in damages, promise is to be regarded as independent); see, e. g., Hanks v. GAB Bus. Servs., 644 S.W.2d 707, 708 (Tex. 1982) (covenant not to compete applied to only part of parties’ contract; thus, it was DEFENDANT’S TRIAL BRIEF PAGE 2 independent promise and its breach did not excuse party from obligation to pay purchase price for business). 5. Thus, Defendant’ s alleged breach of the independent covenant not-to-solicit or not-to- compete does not excuse Plaintiff from its separate promise to pay Defendant benefits under the FSP — Mary Kay’s deferred compensation plan that Defendant earned after 20 years of service to Plaintiff. Respectfiilly submitted, /s/ Gary D. Wilson Gary D. Wilson* Florida Bar No. 0846406 gwilson@wilsonmccoylaw.com WILSON MCCOY, P.A. Point 100 Building 100 E. Sybelia Avenue, Suite 205 Maitland, Florida 32751 (407) 803-5400 (Telephone) (407) 803-4617 (Telecopier) * Admitted Pro Hac Vice and K. Lurich /s/ Rxan Ryan K. Lurich State Bar No. 24013070 rlurich@fflawoffice.com FRIEDMAN & FEIGER, LLP 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 (972) 788-1400 (Telephone) (972) 788-2667 (Telecopier) ATTORNEYS FOR DEFENDANT xxxxx CRUISE xxxxxxx DEFENDANT’S TRIAL BRIEF PAGE 3 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of this pleading has been served on all counsel of record on this the 1st day of August 2022, in accordance with the Texas Rules of Civil Procedure. Christopher J. Schwegmann, Esq. Lynn Pinker Cox & Hurst, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981 -3800 (Telephone) (214) 981 -3839 (Telecopier) Email: cschwegmann@lynnllp.com Jill Herz, Attorney at Law 12240 Inwood Road #400 Dallas, Texas 75244 (214) 745-4567 (Telephone) Email: jherz@jillherz.com K. Lurich /s/ Ryan Ryan K. Lurich #1023046 DEFENDANT’S TRIAL BRIEF PAGE 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nura Al-Maleh on behalf of Ryan Lurich Bar No. 24013070 nalmaleh@fflawoffice.com Envelope ID: 66856678 Status as of 8/2/2022 10:52 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Greg Brassfield gbrassfield@lynnllp.com 8/1/2022 4:48:43 PM SENT S BRADLEY SBRADLEY@DALLASCOUNTY.ORG 8/1/2022 4:48:43 PM SENT gl gaysmith@dallascounty.org 8/1/2022 4:48:43 PM SENT Christiana Cochrane ccochrane@wilsonmccoylaw.com 8/1/2022 4:48:43 PM SENT Teresa Jones Teresa.Jones@dallascounty.org 8/1/2022 4:48:43 PM SENT Ryan Lurich rlurich@fflawoffice.com 8/1/2022 4:48:43 PM SENT Nura Al-Maleh nalmaleh@fflawoffice.com 8/1/2022 4:48:43 PM SENT April Sandefur asandefur@lynnllp.com 8/1/2022 4:48:43 PM SENT Jared Eisenberg jeisenberg@lynnllp.com 8/1/2022 4:48:43 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nura Al-Maleh on behalf of Ryan Lurich Bar No. 24013070 nalmaleh@fflawoffice.com Envelope ID: 66856678 Status as of 8/2/2022 10:52 AM CST Associated Case Party: MARY KAY INC. Name BarNumber Email TimestampSubmitted Status Scott Smoot ssmoot@lynnllp.com 8/1/2022 4:48:43 PM SENT Jill Herz service@jillherz.com 8/1/2022 4:48:43 PM SENT NATALIE STALLBOHM nstallbohm@lynnllp.com 8/1/2022 4:48:43 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Nura Al-Maleh on behalf of Ryan Lurich Bar No. 24013070 nalmaleh@fflawoffice.com Envelope ID: 66856678 Status as of 8/2/2022 10:52 AM CST Associated Case Party: JAMIECRUSEVRINIOS Name BarNumber Email TimestampSubmitted Status GARY WILSON gwilson@wilsonmccoylaw.com 8/1/2022 4:48:43 PM SENT