On April 27, 2018 a
Order
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
11/2/202211z16 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS 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 MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, xxxxx xxxxx xxxxxxx (“Defendant” or “xxxxxxx”) and files this Motion for
New Trial and, for cause, would respectfully show the Court as follows:
I.
PROCEDURAL BACKGROUND
1. The case was called to trial on August 8, 2022. At the conclusion of the evidence, the
Court submitted its Charge of the Court to the duly empaneled jury. The jury found that both parties
breached the contracts at issue in this case, but that Mary Kay’s breach of the FSP was excused
because Defendant had waived the benefits of the FSP and that Defendant’s breach was a prior
material breach. The jury also found that Mary Kay did not suffer any damages and should take
nothing.
2. On October 3, 2022, the Court entered a Final Judgment.
II.
MOTION FOR NEW TRIAL
3. The Court should grant a new trial for the following reasons:
a. xxxxxxx could not have waived her rights and benefits under the FSP
DEFENDANT’S MOTION FOR NEW TRIAL PAGE 1
Agreement by entering into the Amendment to the NSD Agreement as a matter
of law.
b. Sending out one email blast on April 16, 2018 could not have been a prior
material breach as a matter of law.
c. The evidence is factually insufficient to support the jury’s answer to Question
4 in the Court’s charge regarding waiver. Alternatively, the jury’s answer to
Question 4 is against the great weight and preponderance of the evidence.
d. The evidence is factually insufficient to support the jury answer to Question 5
in the Court’s charge regarding prior material breach. Alternatively, the jury’s
answer to Question 5 is against the great weight and preponderance of the
evidence.
4. The Court should grant the Motion for New Trial and order a new trial.
WHEREFORE, PREMISES CONSIDERED, xxxxx xxxxx xxxxxxx respectfully requests
that the Court grant this Motion for New Trial and order a new trial; and for such other and further
relief, both at law and in equity, to which Defendant may be justly entitled.
DEFENDANT’S MOTION FOR NEW TRIAL PAGE 2
Respectfully submitted,
K. Lurich
/s/ Ryan
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)
ATTORNEY FOR DEFENDANT
xxxxx CRUISE xxxxxxx
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 2nd day of November 2022, in accordance with the Texas Rules of
Civil Procedure.
Christopher J. Schwegmann, Esq.
Lynn Pinker Hurst & Schwegmann, 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
/s/ RyanK. Lurich
Ryan K. Lurich
#1032866
DEFENDANT’S MOTION FOR NEW TRIAL PAGE 3
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: 69796945
Status as of 11/2/2022 11:35 AM CST
Associated Case Party: MARY KAY INC.
Name BarNumber Email TimestampSubmitted Status
Jill Herz service@jillherz.com 11/2/2022 11:16:21 AM SENT
Scott Smoot ssmoot@lynnllp.com 11/2/2022 11:16:21 AM SENT
NATALIE STALLBOHM nstallbohm@lynnllp.com 11/2/2022 11:16:21 AM SENT
Chris Schwegmann cschwegmann@lynnllp.com 11/2/2022 11:16:21 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ryan Lurich rlurich@fflawoffice.com 11/2/2022 11:16:21 AM SENT
April Sandefur asandefur@lynnllp.com 11/2/2022 11:16:21 AM SENT
Nura Al-Maleh nalmaleh@fflawoffice.com 11/2/2022 11:16:21 AM SENT
Jared Eisenberg jeisenberg@lynnllp.com 11/2/2022 11:16:21 AM SENT
S BRADLEY SBRADLEY@DALLASCOUNTY.ORG 11/2/2022 11:16:21 AM SENT
g |
gay.smith@dallascounty.org 11/2/2022 11:16:21 AM SENT
Christiana Cochrane ccochrane@wilsonmccoylaw.com 11/2/2022 11:16:21 AM SENT
Teresa Jones Teresa.Jones@dallascounty.org 11/2/2022 11:16:21 AM SENT
Associated Case Party: JAMIECRUSEVRINIOS
Name BarNumber Email TimestampSubmitted Status
GARY WILSON gwilson@wilsonmccoylaw.com 11/2/2022 11:16:21 AM ERROR
Document Filed Date
November 02, 2022
Case Filing Date
April 27, 2018
Category
CNTR CNSMR COM DEBT
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FILED 11/2/202211z16 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS CAROLYN SELLERS 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 MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, xxxxx xxxxx xxxxxxx (“Defendant” or “xxxxxxx”) and files this Motion for New Trial and, for cause, would respectfully show the Court as follows: I. PROCEDURAL BACKGROUND 1. The case was called to trial on August 8, 2022. At the conclusion of the evidence, the Court submitted its Charge of the Court to the duly empaneled jury. The jury found that both parties breached the contracts at issue in this case, but that Mary Kay’s breach of the FSP was excused because Defendant had waived the benefits of the FSP and that Defendant’s breach was a prior material breach. The jury also found that Mary Kay did not suffer any damages and should take nothing. 2. On October 3, 2022, the Court entered a Final Judgment. II. MOTION FOR NEW TRIAL 3. The Court should grant a new trial for the following reasons: a. xxxxxxx could not have waived her rights and benefits under the FSP DEFENDANT’S MOTION FOR NEW TRIAL PAGE 1 Agreement by entering into the Amendment to the NSD Agreement as a matter of law. b. Sending out one email blast on April 16, 2018 could not have been a prior material breach as a matter of law. c. The evidence is factually insufficient to support the jury’s answer to Question 4 in the Court’s charge regarding waiver. Alternatively, the jury’s answer to Question 4 is against the great weight and preponderance of the evidence. d. The evidence is factually insufficient to support the jury answer to Question 5 in the Court’s charge regarding prior material breach. Alternatively, the jury’s answer to Question 5 is against the great weight and preponderance of the evidence. 4. The Court should grant the Motion for New Trial and order a new trial. WHEREFORE, PREMISES CONSIDERED, xxxxx xxxxx xxxxxxx respectfully requests that the Court grant this Motion for New Trial and order a new trial; and for such other and further relief, both at law and in equity, to which Defendant may be justly entitled. DEFENDANT’S MOTION FOR NEW TRIAL PAGE 2 Respectfully submitted, K. Lurich /s/ Ryan 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) ATTORNEY FOR DEFENDANT xxxxx CRUISE xxxxxxx 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 2nd day of November 2022, in accordance with the Texas Rules of Civil Procedure. Christopher J. Schwegmann, Esq. Lynn Pinker Hurst & Schwegmann, 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 /s/ RyanK. Lurich Ryan K. Lurich #1032866 DEFENDANT’S MOTION FOR NEW TRIAL PAGE 3 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: 69796945 Status as of 11/2/2022 11:35 AM CST Associated Case Party: MARY KAY INC. Name BarNumber Email TimestampSubmitted Status Jill Herz service@jillherz.com 11/2/2022 11:16:21 AM SENT Scott Smoot ssmoot@lynnllp.com 11/2/2022 11:16:21 AM SENT NATALIE STALLBOHM nstallbohm@lynnllp.com 11/2/2022 11:16:21 AM SENT Chris Schwegmann cschwegmann@lynnllp.com 11/2/2022 11:16:21 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ryan Lurich rlurich@fflawoffice.com 11/2/2022 11:16:21 AM SENT April Sandefur asandefur@lynnllp.com 11/2/2022 11:16:21 AM SENT Nura Al-Maleh nalmaleh@fflawoffice.com 11/2/2022 11:16:21 AM SENT Jared Eisenberg jeisenberg@lynnllp.com 11/2/2022 11:16:21 AM SENT S BRADLEY SBRADLEY@DALLASCOUNTY.ORG 11/2/2022 11:16:21 AM SENT g | gay.smith@dallascounty.org 11/2/2022 11:16:21 AM SENT Christiana Cochrane ccochrane@wilsonmccoylaw.com 11/2/2022 11:16:21 AM SENT Teresa Jones Teresa.Jones@dallascounty.org 11/2/2022 11:16:21 AM SENT Associated Case Party: JAMIECRUSEVRINIOS Name BarNumber Email TimestampSubmitted Status GARY WILSON gwilson@wilsonmccoylaw.com 11/2/2022 11:16:21 AM ERROR