Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-04875
Justices Myers, Osborne, and Nowell
Expo, LLC sued the National Football League (NFL) for
tortious interference with a contract. The trial court
granted the NFL's motions for summary judgment.
Appellant, The Fan Expo, brings three issues on appeal
contending the trial court erred by granting the NFL's
motion for summary judgment because the evidence established
a genuine issue of material fact concerning (1) intentional
interference and (2) causation and damages, and because (3)
the NFL did not conclusively establish its defense of
justification. We affirm the trial court's judgment.
was formed in 2015 for the purpose of hosting the National
Fantasy Football Convention. The first convention was to be
held in 2015 at a casino resort in Las Vegas. Appellant
invited numerous active NFL players to attend. However, the
NFL warned the players that attendance at the event would
violate the NFL's gambling policy and that the players
could be subject to discipline. Appellant canceled the 2015
convention and sued the NFL. The litigation was ongoing during
the events in this case, which involved appellant's
planning and preparation for the 2016 convention.
2016 convention was going to be a three-day event in July in
California. According to Andy Alberth, appellant's
executive director, the centerpiece attraction at the 2016
convention was going to be the EA Sports Madden NFL 17 video
game, where attendees could play the game against NFL
March 22, 2016,  Electronic Arts, Inc. (EA), the owner of
the Madden NFL video game series, signed a "Sponsor
Agreement" with appellant. The agreement provided that
EA would be a "Participating sponsor" of the
convention and pay appellant a sponsorship fee. The agreement
did not state that EA would be a "partner." EA also
promised to provide "artwork, assets and/or copy as is
needed for [the Convention's] use solely in connection
with this agreement." Appellant promised it would submit
to EA any materials using EA's intellectual property for
approval by EA before displaying them. EA sent appellant its
logo for the Madden NFL 17 video game, which included the
NFL's shield logo. However, appellant displayed the
Madden NFL 17 logo on its webpage without first submitting
the display to EA for approval. Appellant's webpage
stated EA was a sponsor and partner for the convention.
licensing agreement between EA and the NFL required EA to
obtain the NFL's approval for all "promotion,
publicity or display materials depicting the Licensed
Marks," which included the NFL's shield logo.
Because appellant did not send the proposed display to EA for
EA's approval, EA could not obtain the NFL's approval
before appellant displayed the logo.
April 18, Michael Buchwald, counsel for the NFL, viewed
appellant's website and saw the Madden NFL 17 logo. On
Friday, April 22, Buchwald and Allison Villafane, the
NFL's senior counsel based in New York City, held a
telephone call with EA's vice president of business
affairs, Lee Rawles. During the phone call, either Villafane
or Buchwald told Rawles that the NFL was in litigation with
appellant. They also discussed appellant's display of the
Madden NFL 17 logo without the NFL's authorization.
Rawles said he did not know whether EA was involved in the
convention, and he told Villafane and Buchwald he would
investigate the matter. After the phone call, there were
numerous e-mails among EA's personnel. The following
Monday, April 25, EA's product manager, Moya Dacey,
e-mailed appellant stating EA would not be participating in
next day, April 26, appellant's lawyers sent an e-mail to
the NFL's Dallas lawyers. The e-mail demanded that the
NFL cease and desist from contacting sponsors of the
convention, "demanding that they [the sponsors] withdraw
from the event or intimidating them with the intent to make
them withdraw from the event."
hours after the cease-and-desist e-mail, Villafane sent a
"follow-up" e-mail to Buchwald and Rawles
discussing the April 22 telephone call. The e-mail stated
that during the telephone call, the NFL said it did not
approve of appellant's promotional use of the NFL shield
logo and requested "that EA take steps to have the NFL
shield removed from the display." The e-mail also stated
the NFL would not object to the "EA Sports Madden
2017" logo remaining on appellant's website as long
as the NFL shield was removed. The follow-up e-mail also
stated, "We [the NFL] reiterate that we have no issue
with EA sponsoring or partnering with the NFFC [National
Fantasy Football Convention] event. Our concern is with the
NFFC's promotional use of the NFL Shield, which may
falsely give the impression that the NFFC is sponsored by,
endorsed by, or otherwise affiliated with, the NFL, when it
is not." Despite the NFL's assurance to EA that it
had "no issue" with EA's involvement in the
convention, EA did not immediately return to being a sponsor
and participant in the convention.
April 27, the day after appellant's cease-and-desist
e-mail and the NFL's follow-up e-mail, appellant filed
suit against the NFL for tortious interference with contract.
14, appellant decided to cancel the convention. A week later,
on June 21, EA's events manager sent an e-mail to
appellant stating EA wanted to participate in the convention,
but appellant told her the convention had already been
canceled. In July, appellant amended its petition, adding EA
as a defendant and suing it for breach of contract and, in
subsequent amendments, fraud and other torts. In August, EA
paid appellant the sponsorship fee.
the NFL and EA filed motions for summary judgment. Following
multiple hearings, the trial court granted both the NFL's
and EA's motions for summary judgment and ordered that
appellant take nothing on its claims. Appellant appeals the
summary judgment in favor of the NFL, but appellant does not
appeal the summary judgment in favor of EA.
standard for reviewing a traditional summary judgment is well
established. See McAfee, Inc. v. Agilysys, Inc., 316
S.W.3d 820, 825 (Tex. App.-Dallas 2010, no pet.). The movant
has the burden of showing that no genuine issue of material
fact exists and that it is entitled to judgment as a matter
of law. Tex.R.Civ.P. 166a(c). In deciding whether a disputed
material fact issue exists precluding summary judgment,
evidence favorable to the nonmovant will be taken as true.
In re Estate of Berry, 280 S.W.3d 478, 480 (Tex.
App.-Dallas 2009, no pet.). Every reasonable inference must
be indulged in favor of the nonmovant and any doubts resolved
against the motion. City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005).
166a(i) provides that a party "may move for summary
judgment on the ground that there is no evidence of one or
more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial."
We review a no-evidence summary judgment under the same legal
sufficiency standard used to review a directed verdict.
See Tex. R. Civ. P. 166a(i); Flood v. Katz,
294 S.W.3d 756, 762 (Tex. App.-Dallas 2009, pet. denied).
Thus, we must determine whether the nonmovant produced more
than a scintilla of probative evidence to raise a fact issue
on the material questions presented. See Flood, 294
S.W.3d at 762. When analyzing a no-evidence summary judgment,
"we examine the entire record in the light most
favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion."
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per
curiam) (quoting City of Keller, 168 S.W.3d at 823).
A no-evidence summary judgment is improperly granted if the
nonmovant presented more than a scintilla of probative
evidence to raise a genuine issue of material fact. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
"More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable,
fair-minded persons to differ in their conclusions."
Id. (quoting Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less
than a scintilla of evidence exists when the evidence is
'so weak as to do no more than create a mere surmise or
suspicion' of a fact." Id. (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
both standards, evidence favorable to the nonmovant will be
taken as true. In re Estate of Berry, 280 S.W.3d at
480. The court indulges every reasonable inference in favor
of the nonmovant and resolves all doubts in favor of the
nonmovant. City of Keller, 168 S.W.3d at 824. We
review a summary judgment de novo to determine whether a
party's right to prevail is established as a matter of
law. Tex. Workforce Comm'n v. Wichita Cty., 548
S.W.3d 489, 492 (Tex. 2018).
summary judgment may be based on the testimony of interested
witnesses if the evidence is "clear, positive and
direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily
controverted." Tex.R.Civ.P. 166a(c). The phrase,
"could have been readily controverted," does not
mean that the movant's proof could have been easily and
Rather, it means that testimony at issue is of a nature which
can be effectively countered by opposing evidence. If the
credibility of the affiant or deponent is likely to be a
dispositive factor in the resolution of the case, then
summary judgment is inappropriate. On the other hand, if the
non-movant must, in all likelihood, come forth with
independent evidence to prevail, then summary judgment may
well be proper in the absence of such controverting proof.
Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).
INTERFERENCE WITH CONTRACT
three issues contend the trial court erred by granting the
NFL's motion for summary judgment on appellant's
claim for tortious interference with contract. The elements
of a claim of tortious interference with an existing contract
are: (1) an existing contract subject to interference; (2) a
willful and intentional act of interference with the
contract; (3) that proximately caused the plaintiff's
injury; and (4) caused actual damages or loss. Prudential
Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d
74, 77 (Tex. 2000); Tex. Integrated Conveyor Sys., Inc.
v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348,
367 (Tex. App.-Dallas 2009, pet. denied). To establish the
element of a willful and intentional act of interference, a
plaintiff must produce some evidence that the defendant
knowingly induced one of the contracting parties to breach
its obligations under a contract. Funes v.
Villatoro, 352 S.W.3d 200, 213 (Tex. App.-Houston [14th
Dist.] 2011, pet. denied); COC Servs. Ltd. v. CompUSA,
Inc., 150 S.W.3d 654, 671 (Tex. App.- Dallas 2004, pet.
Interference by the NFL
first issue, appellant contends it established a genuine
issue of material fact on the element of intentional
interference. The NFL asserted in its motions for summary
judgment that it did not intentionally interfere with the
contract between appellant and any sponsor of the convention,
which would include EA, and that appellant had no evidence
the NFL intentionally interfered with a contract between
appellant and a sponsor of the convention. Under the
NFL's no-evidence motion for summary judgment, appellant
had the burden of coming forward with some evidence that the
NFL intentionally interfered with the contract. We must
determine whether appellant presented some evidence the NFL
knowingly induced EA to breach its contract to participate in
the 2016 convention. See COC Servs., 150 S.W.3d at
a defendant accused of tortious interference rarely admits
its guilt, a plaintiff usually must use circumstantial
evidence to prove its cause of action. Dagley v. Haag
Eng'g Co., 18 S.W.3d 787, 794 (Tex. App.-Houston
[14th Dist.] 2000, no pet.); Meza v. Serv. Merchandise
Co., 951 S.W.2d 149, 152 (Tex. App.-Corpus
Christi-Edinburg 1997, pet. denied). A fact issue is raised
by circumstantial evidence if a reasonable person would
conclude from the evidence that the existence of the fact is
more reasonable than its nonexistence. Guthrie v.
Suiter, 934 S.W.2d 820, 831-32 (Tex. App.-Houston [1st
Dist.] 1996, no writ).
case, the NFL did not admit it intentionally interfered with
the contract, nor did EA state it withdrew from the
convention due to pressure from the NFL. Rawles, Villafane,
and Buchwald, the participants in the phone call, testified
that the NFL did not discourage EA from participating in the
convention. They testified that Villafane and Buchwald told
Rawles repeatedly that the NFL did not have a problem with EA
participating in the convention. They also testified that
Villafane or Buchwald said that the NFL was in litigation
with appellant. They denied that the NFL coerced EA to
withdraw from the convention.
argues that the e-mails by EA personnel after the phone call
present some evidence that the NFL knowingly induced EA to
breach the Sponsor Agreement and withdraw from the
Friday, April 22, after the phone call with Villafane and
Buchwald, Rawles sent an e-mail to several people at EA,
including Joss Price, with the subject line "Madden and
the National Fantasy Football Convention." Rawles asked
Does this ring a bell for anybody? Did we do a deal with
these guys? NFL is in litigation with them and it is an
forwarded Rawles's e-mail to Randy Chase (EA's senior
director of North American marketing) who responded:
We had planned to have a booth at the show to promote MUT and
Draft Champions. We were participating as a trade show, not
partnering with them.
Didn't know about the litigation. We can pull out of the
show if it's an issue.
replied to Chase and numerous other EA employees including
Moya Dacey (EA's product manager):
At a minimum, we need to ask them to remove the logo. We
didn't give them permission to reference us and we
aren't their partner.
Probably wouldn't hurt to avoid altogether if we
don't already have significant sunk costs but the logo
removal is a must.
replied to Rawles, copying Dacey:
do. Will get status on Monday and work to remove ourselves
completely. Dacey then e-mailed Sara Sprinkles (EA's
FYI. We need to completely remove ourselves from the Fantasy
Football Convention. I'll work with legal to see if
there's anything from our end that has us covered. Worst