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Doggett v. The Travis Law Firm, P.C.

Court of Appeals of Texas, First District

May 10, 2018

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

          Panel consists of Justices Keyes, Bland, and Lloyd.

          OPINION

          RUSSELL LLOYD JUSTICE.

         Appellant, Jeffrey L. Doggett, appeals the trial court's judgment rendered in 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 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.

          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 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 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) ...


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