CourtListener 10768706

Full text

Opinion issued December 31, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00176-CV
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A.H.D. HOUSTON, INC. D/B/A CENTERFOLDS, DWG FM INC. D/B/A
SPLENDOR, D. HOUSTON INC. D/B/A TREASURES, A.H.D. HOUSTON,
INC. D/B/A CENTERFOLDS, AND W.L. YORK, INC. D/B/A COVER
GIRLS, INCORRECTLY NAMED AS A.H.D. HOUSTON, INC. D/B/A
CENTERFOLDS, DWG FM INC. D/B/A SPLENDOR, D. TEXAS
INVESTMENTS, INC. D/B/A TREASURES, A.H.D. HOUSTON, INC. D/B/A
TREASURES, AND W.L. YORK, INC. D/B/A TREASURES, Appellants
V.
JAIME MIDDLETON, CORA SKINNER, JAMILLETTE GAXIOLA,
JENNIFER ZHARINOVA, JESSICA HINTON, LINA POSADA, LUCY
PINDER, PAOLA CANAS, SANDRA VALENCIA, TIFFANY TOTH,
CIELO JEAN GIBSON, MAYSA QUI, ELIZABETH TURNER, EMILY
SEARS, GEMMA LEE FARRELL, AND JACLYN SWEDBERG, Appellees

On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2017-71429
MEMORANDUM OPINION

Appellants, A.H.D. Houston, Inc. d/b/a Centerfolds, Dwg Fm Inc. d/b/a

Splendor, D. Houston Inc. d/b/a Treasures, A.H.D. Houston, Inc. d/b/a Centerfolds,

and W.L. York, Inc. d/b/a Cover Girls, incorrectly named as A.H.D. Houston, Inc.

d/b/a Centerfolds, Dwg Fm Inc. d/b/a Splendor, D. Texas Investments, Inc. d/b/a

Treasures, A.H.D. Houston, Inc. d/b/a Treasures, and W.L. York, Inc. d/b/a

Treasures (collectively “appellants” or “the Clubs”) appeal from the trial court’s

order granting summary judgment in favor of appellees Jaime Middleton, Cora

Skinner, Jamillette Gaxiola, Jennifer Zharinova, Jessica Hinton, Lina Posada, Lucy

Pinder, Paola Canas, Sandra Valencia, Tiffany Toth, Cielo Jean Gibson, Maysa Qui,

Elizabeth Turner, Emily Sears, Gemma Lee Farrell, and Jaclyn Swedberg

(collectively “appellees” or “the Models”) on their affirmative claims of invasion of

privacy by misappropriation and negligence and awarding $1,405,000.00 in

damages. Appellants raise three issues on appeal. First, they contend that the trial

court erred in granting summary judgment on appellees’ misappropriation claim

because the evidence of commercial benefit was not conclusive and the Clubs

presented evidence that the social media posts using the Models’ images did not

confer a commercial benefit on the Clubs that they would not have otherwise

received. Second, they assert that the trial court erred in granting summary judgment

on the Models’ negligence claim because the Clubs presented evidence that a third-

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party vendor was responsible for promoting the Clubs on social media and was

solely responsible for the social media posts at issue. Third, the Clubs assert that the

trial court improperly awarded damages to the Models in excess of $1.4 million as a

matter of law because (1) the Models’ summary judgment motion requested that

damages be determined by a jury, (2) the unliquidated damages were a fact issue for

the jury because the damages sought are highly subjective and not readily susceptible

to objective, conclusive calculation, (3) the expert reports submitted in support of

the Models’ damages claims are conclusory, speculative, unreliable, and full of

analytical gaps and unsupported inferences, (4) no evidence in the record supports

$575,000.00 of the $1,405,000.00 awarded in the judgment, and (5) the Clubs

presented evidence from each Model’s deposition testimony stating that she suffered

no damage as a result of the social media posts.

We reverse the judgment and remand for a new trial on liability and damages.

Background

Appellants own and operate the adult entertainment establishments known as

Treasures, Centerfolds, and Splendor in Harris County, Texas (“the Clubs”).

Appellees are professional models and social influencers who earn a living by

commercializing their images to endorse, promote, and advertise products and

businesses in exchange for compensation.

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A. The Lawsuit

In October 2017, the Models sued appellants asserting claims for invasion of

privacy by misappropriation, negligence/respondeat superior liability, and theft.

Their petition alleged that appellants misappropriated the Models’ images and

likenesses over a period of several years by placing doctored images on the Internet

and the Clubs’ social media posts—making it appear as if the Models were working

as strippers in the Clubs or endorsed the Clubs—to promote the Clubs, and did so

without the Models’ consent. They alleged that appellants’ misappropriation of their

images and likenesses was neither incidental nor for a newsworthy purpose; rather,

it was done for the value associated with them. With regard to their negligence

claim, the Models alleged that appellants owed them a duty to ensure that their

advertising and promotional materials and practices did not infringe on the Models’

privacy rights, and they breached their duty of care by (1) failing to promulgate,

enforce, or adhere to policies and procedures concerning the misappropriation of

images, (2) communicate the policies and procedures to their employees, and (3)

supervise their employees to ensure compliance. The Models further alleged that

appellants had a duty to the members of the public to refrain from misappropriating

the Models’ images, they violated that duty by negligently hiring, screening,

retaining and training their employees and agents, and they were liable for the

conduct of their employees or agents under the theory of respondeat superior. With

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regard to their theft claim, the Models alleged that appellants unlawfully

appropriated the Models’ images and unlawfully obtained their services pursuant to

Texas Civil Practices and Remedies Code section 134.002(2). The Models sought

past and future pecuniary damages resulting from the unauthorized use of their

images and likenesses as well as exemplary damages.

In their amended answer, appellants asserted a general denial and raised

several affirmative defenses, pleading that (1) the Models consented to the public

use and dissemination of their photographs and therefore relinquished their rights to

the photographs and to their likenesses, (2) any use of the Models’ photographs by

the Clubs did not involve the character, personality, or reputation of the Models, (3)

the Clubs did not use the photographs for a commercial benefit, (4) the Models

suffered no commercial harm or damages, (5) the Models’ claims were barred

because they were paid for the photographs and for a release of their rights to the

photographs and their likenesses, (6) the Models’ alleged injuries were caused in

whole or in part by the negligence of a third party, Genesis Real World Corporation

(“Genesis”), (7) the Models’ damages, if any, should be reduced because of their

comparative and/or contributory negligence and their failure to mitigate their

damages, and (8) the Models’ claims were barred by the doctrines of unclean hands,

waiver, and estoppel.

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B. Summary Judgment Proceedings

The Models moved for traditional summary judgment on their claims of

invasion of privacy by misappropriation and negligence/respondeat superior liability

in August 2021.1 As to their misappropriation claim, the Models asserted that they

had established all three elements of their claim because the summary judgment

evidence conclusively showed that (1) appellants had appropriated the Models’

names or likenesses for their value rather than incidentally or for a newsworthy

purpose, (2) the Models could be identified from the publication, and (3) appellants

received an advantage or benefit as a result of the misappropriation. The Models

asserted that they met all of the elements of their negligence claim because the

evidence demonstrated that (1) appellants owed them a duty of care to ensure that

their advertising and promotional materials and practices did not infringe on the

Models’ privacy rights, (2) they breached their duty of care by (a) failing to

promulgate, enforce, or adhere to policies and procedures concerning the

misappropriation of images, (b) communicate the policies and procedures to their

employees, and (c) supervise their employees to ensure compliance, and (3)

appellants’ breach proximately caused damages to the Models. They asserted that

appellants were also liable under the doctrine of respondeat superior because their

agent, Genesis, was acting within the course and scope of its employment with

1
The Models did not move for summary judgment on their theft claim.
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appellants when it posted the Models’ images on the Clubs’ websites and social

media accounts and their actions were in furtherance of appellants’ businesses. The

Models also moved for summary judgment on their negligent undertaking claim.

The summary judgment evidence attached to the Models’ motion consisted of their

sworn declarations and accompanying attachments, excerpts from the deposition

testimony of Crystal Cowart, appellants’ designated corporate representative

(“Cowart”) and accompanying exhibits, Treasures’s Image Rights Release, and the

expert reports of Stephen Chamberlin (“Chamberlin”).2

In his reports, Chamberlin stated:

• he was asked to determine the fair market value of the Models’ images
used by appellants in connection with the social media accounts for
their clubs;

• his opinions, analysis, and conclusions were based upon a review of the
images and of supporting documentation, discussions with each Model

2
Chamberlin prepared three expert reports: the “Splendor Report” (Exhibit S), the
“Centerfolds Report” (Exhibit T), and the “Treasures Report” (Exhibit U). While it
is undisputed that the Splendor and Centerfolds Reports were filed in the trial court
prior to the summary judgment hearing and are part of the appellate record,
appellants disputed that the Treasures Report was properly filed or proffered to the
trial court prior to entry of judgment.

After the Models requested that a supplemental record containing Exhibit U be filed
in this Court, we abated the appeal under Texas Rule of Appellate Procedure
34.5(e), directing the trial court to hold a hearing to determine “whether Exhibit U
was part of the summary judgment record.” Following a hearing, the trial court
entered an order memorializing its findings that Exhibit U was properly before the
court during the summary judgment hearing and that it was lost or destroyed after
the summary judgment hearing. We reinstated the appeal and granted appellants
thirty days to file a supplemental brief addressing Exhibit U.

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as well as agency representatives and other individuals in the modeling
and talent industries, an assessment of the Models’ current career
station, and personal factors that would impact a fair market value
negotiation;

• the documents he considered in calculating damages included other
clients’ contracts and agreements with the Models, contractor 1099
forms, employee W-2 forms, earnings statements, and releases and
related records, where available; and

• determining the fair market value of appellants’ use of the Models’
images required him to attempt to recreate a negotiation process that
did not occur.

Chamberlin’s reports further stated that his determinations of fair market value for

each Model’s images used by appellants “are based on a number of factors and are

estimations in support of actual damages sustained by the Models . . . .”

In their summary judgment response, appellants asserted that the Models were

not entitled to summary judgment on their misappropriation claim because they

failed to provide any evidence that appellants had received a commercial benefit

from the complained-of posts that, without such posts, appellants would not have

otherwise received. As to the Models’ negligence/respondeat superior claims,

appellants argued that a genuine issue of material fact existed regarding whether

appellants breached any duty owed to appellees because Genesis, the third-party

vendor appellants hired to advertise the Clubs on social media, acted outside the

scope of the parties’ agreement and its authority when it posted the Models’ images

to the Clubs’ social media pages without first obtaining releases from them. They

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further asserted that the Models had failed to provide any evidence that they suffered

injury or damage as a result of the social media posts. Appellants attached excerpts

from Cowart’s deposition and the Models’ depositions as summary judgment

evidence.

The trial court held a hearing on the Models’ motion for summary judgment

on October 22, 2021.3 At the conclusion of the hearing, the trial court asked the

parties to submit additional briefing, specifically, to address whether the

determination of the “commercial benefit” element of a misappropriation claim is a

question of fact or of law.

In their supplemental briefing, the Models argued that the summary judgment

evidence established as a matter of law that appellants received a benefit or

advantage as a result of the misappropriation of the Models’ images. They asserted

that the “benefit” element requires a plaintiff to prove that the defendant derived

some commercial benefit from the use of the plaintiff’s name or likeness as opposed

to receiving no commercial benefit because the use was incidental. The Models

asserted that appellants’ use of their images was commercial and anything but

incidental. They asserted that Cowart’s testimony demonstrated that the use of their

3
At the hearing, the trial court also heard appellants’ motion for leave to designate
Genesis as a responsible third party. The court took judicial notice that appellants
had designated Genesis as a potential responsible party on July 19, 2020. The
lawsuit was filed in 2017. Noting that the statute of limitations barred suit against
Genesis, the trial court denied appellants’ motion.
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images was clearly intended to bring patrons into the Clubs by convincing them that

the Models would actually appear at the Clubs as dancers. The Models emphasized

that they were not required to show that appellants made money from the commercial

use of their images or likenesses. The Models argued that the uncontroverted

summary judgment evidence showing that the Models were not compensated for

appellants’ repeated use of their images over a period of years, without their

permission, to advertise their Clubs and the events taking place there met the

“commercial benefit” standard.

In their supplemental briefing, appellants asserted that the Models were not

entitled to summary judgment on their misappropriation claim because appellants

presented more than a scintilla of evidence creating a fact issue as to whether

appellants received some advantage or benefit from their use of the Models’ images

or likenesses in the Clubs’ social media posts. In support of their assertion,

appellants pointed to Cowart’s testimony that, based on her twenty years of

experience in the adult entertainment industry, the Clubs did not need to advertise.

Appellants asserted that the Models produced no evidence that more patrons came

to the Clubs or that the Clubs’ revenue increased as a result of the social media posts

using their images. Appellants argued that the social media posts were simply

inconsequential to the Clubs.

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The trial court granted the Models’ traditional motion for summary judgment

as to liability and damages on their claims for misappropriation and

negligence/respondeat superior liability. The trial court entered its final judgment,

which stated, in part:

A. IT IS THEREFORE ORDERED that Plaintiffs[’] Motion for Summary
Judgment against Defendants for Right to Privacy—Misappropriation
is GRANTED.

B. IT IS FURTHER ORDERED that Plaintiffs[’] Motion for Summary
Judgment against Defendants for Negligence is GRANTED.

C. IT IS FURTHER ORDERED that Plaintiffs[’] Motion for Summary
Judgment against Defendants for Negligence Respondeat Superior is
GRANTED.

D. IT IS FURTHER ORDERED that Plaintiffs are awarded monetary
damages as presented in their Summary Judgment Evidence as follows:

Plaintiff Damages

Skinner $160,000
Middleton $60,000
Gaxiola $30,000
Zharinova $15,000
Hinton $200,000
Posada $210,000
Pinder $40,000
Canas $105,000
Valencia $45,000
Toth $240,000
Farrell $40,000
Sears $20,000
Swedberg $100,000
Quy $40,000
Gibson $60,000

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Turner $40,000

Appellants moved for a new trial, arguing that the trial court erred in granting

summary judgment in favor of the Models and awarding more than $1.4 million in

damages. With respect to the misappropriation claim, appellants asserted that the

Models had failed to present uncontroverted evidence that appellants had received a

commercial benefit from the alleged misappropriation of the Models’ images. They

further asserted that Cowart’s testimony that the Clubs received no commercial

benefit and that the advertisements were inconsequential to the Clubs created a fact

issue precluding summary judgment on the Models’ misappropriation claim. As to

the negligence/respondeat superior claim, appellants argued that the summary

judgment record showed that appellants had hired Genesis, a third-party vendor, to

promote and market the Clubs on social media, Genesis alone handled the selection

and posting of images for advertising purposes, and Genesis acted outside the scope

of its authority when it posted the images without first obtaining releases from the

Models. Appellants argued that this evidence raised a material fact issue on the

Models’ negligence claim precluding summary judgment. Finally, appellants

asserted that the trial court erred in awarding damages to the Models for several

reasons. First, the damages in this case were unliquidated, subjective, not subject to

precise calculation, and could not be decided as a matter of law. Second, in their

summary judgment motion, the Models specifically requested that the question of

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damages be submitted to the jury and, thus, by awarding damages in its final

judgment, the trial court impermissibly awarded more relief than was requested in

the motion. Third, the only evidence of damages was the Models’ expert reports,

which were unreliable, speculative, conclusory, and hearsay. Lastly, appellants’

summary judgment evidence included excerpts from each Model’s deposition

testimony stating that she suffered no damages as a result of the alleged

misappropriation, which directly controverted the evidence the Models produced to

support their claimed damages. Appellants asserted that the Models failed to

establish their entitlement to and the amount of damages as a matter of law.

In their response to appellants’ motion for new trial, the Models argued that

appellants were not entitled to an evidentiary hearing because their new trial motion

was merely an attempt to assert, for the first time, objections to the Models’

summary judgment evidence and challenge the Models’ expert’s qualifications.

They asserted that appellants’ motion failed to show good cause as required by

Texas Rule of Civil Procedure 320. According to the Models, they conclusively

showed that appellants received a commercial benefit from the use of the Models’

images that they would not otherwise have received. They further asserted that they

requested summary judgment on damages and conclusively proved the amount of

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damages to which they were entitled. Lastly, they argued that appellants had waived

any Daubert4 challenge to the Models’ expert.

The trial court held a hearing on appellants’ motion for new trial on February

18, 2022. Appellants’ motion for new trial was subsequently overruled by operation

of law.

This appeal followed.

Summary Judgment Standard

We review the trial court’s grant of a summary judgment de novo. Tex. Mun.

Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). To

prevail on a traditional summary judgment motion, the movant bears the burden of

proving that no genuine issues of material fact exist and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Thus, a plaintiff moving for

summary judgment on its own claim must conclusively establish each element of

that claim. Clarent Energy Servs., Inc. v. Leasing Ventures, LLC, No. 01-18-00821-

CV, 2020 WL 1173706, at *6 (Tex. App.—Houston [1st Dist.] Mar. 12, 2020, no

pet.) (mem. op.). A matter is conclusively established if reasonable people could not

differ as to the conclusion to be drawn from the evidence. See City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

4
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
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If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). To determine if the

nonmovant raised a fact issue, we review the evidence in the light most favorable to

the nonmovant, crediting favorable evidence if reasonable jurors could and

disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort,

289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v.

Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). A genuine issue of material fact is

raised when the nonmovant produces more than a scintilla of evidence regarding the

challenged element. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). More than

a scintilla of evidence exists when reasonable and fair-minded individuals could

differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003).

Misappropriation Claim

In their first issue, appellants contend that the trial court erred in granting

summary judgment on the Models’ misappropriation claim. They assert that the

Models failed to conclusively prove that the Clubs received a commercial benefit

from the social media posts containing the Models’ images or likenesses that they

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would not have otherwise received. Appellants assert that their summary judgment

evidence showed that the Clubs received no commercial benefit from their social

media posts, the Clubs do not need to advertise, the social media posts are

inconsequential, and Genesis was solely responsible for the posts. Thus, they argue,

a genuine issue of material fact exists on the commercial benefit element of the

Models’ invasion of privacy by misappropriation claim.

A. Applicable Law

Invasion of privacy is an intentional tort. Doggett v. Travis Law Firm, P.C.,

555 S.W.3d 127, 130 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing

Billings v. Atkinson, 489 S.W.2d 858, 860–61 (Tex. 1973)). Texas recognizes three

separate types of invasion of privacy: (1) intrusion upon seclusion or solitude or into

one’s private affairs; (2) public disclosure of embarrassing private facts; and (3)

wrongful appropriation of one’s name or likeness. See Cain v. Hearst Corp., 878

S.W.2d 577, 578 (Tex. 1994) (discussing cases recognizing each type of privacy

right).

The three elements of a claim for invasion of privacy by appropriation of name

or likeness are (1) the defendant appropriated the plaintiff’s name or likeness for the

value associated with it, and not in an incidental manner or for a newsworthy

purpose; (2) the plaintiff can be identified from the publication; and (3) there was

some advantage or benefit to the defendant. Matthews v. Wozencraft, 15 F.3d 432,

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437 (5th Cir. 1994); Henley v. Dillard Dep’t Stores, 46 F. Supp. 2d 587, 590 (N.D.

Tex. 1999); United Locating Servs., LLC v. Fobbs, 619 S.W.3d 863, 871 (Tex.

App.—Houston [14th Dist.] 2021, no pet.); Doggett, 555 S.W.3d at 130; see also

Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App.—Dallas 2001,

no pet.). In general, an appropriation becomes actionable when the name or likeness

is used “to advertise the defendant’s business or product, or for some similar

commercial purpose.” Watson v. Talia Heights, LLC, 566 S.W.3d 326, 330 (Tex.

App.—Houston [14th Dist.] 2018, no pet.) (quoting Express One Int’l, Inc., 53

S.W.3d at 900). If a defendant appropriates a plaintiff’s name or likeness for his

own commercial advantage, he necessarily derives a benefit from its use. Henley,

46 F. Supp. 2d at 596.

The plaintiff is not required to show that the defendant made money from the

commercial use of the name or likeness. See id. at 597 (“It is immaterial that

Defendant made little profit after the ad ran, only ran the advertisement once, and

received no feedback on the ad.”). Nor is the plaintiff required to prove the

defendant’s use of the plaintiff’s name or likeness “worked.” Id. “[The d]efendant

should not be shielded from liability because the product promoted is undesirable,

the ad [is] clumsy or somehow ineffective, or sales slump[ed] during the relevant

time period.” Id. (internal quotation omitted). “The right of publicity has been

defined as the inherent right of every human being to control the commercial use of

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his or her identity . . . .” Souza v. Mirage Ent., Inc., No. 2:21-CV-00015, 2023 WL

8936699, at *2 (S.D. Tex. Dec. 27, 2023) (internal quotation omitted). Rather, the

plaintiff must prove that the defendant received a commercial benefit from use of

the plaintiff’s name or likeness that, without the plaintiff’s image, he would not

otherwise have received. See Henley, 46 F. Supp. 2d at 597.

B. Summary Judgment Motion

In their summary judgment motion, the Models asserted that they conclusively

established all three elements of their misappropriation claim as a matter of law.

1. Appellants appropriated the Models’ likenesses or images for their value
rather than incidentally or for a newsworthy purpose.

In support of this element, the Models pointed to Cowart’s testimony that she

had viewed the Models’ images—thirty-six “Centerfolds images,” fifteen “Splendor

images,” and twenty-three “Treasures images”—and identified them as posts

appearing on the Clubs’ Facebook pages. Cowart testified that appellants hired

Genesis to manage their marketing, including their social media accounts, and to

post images on their pages. She testified that appellants paid Genesis $5,100.00 per

month for their services. Cowart testified that the Clubs’ general managers provided

Genesis with information regarding food and drink specials and promotions, and

Genesis created the advertisements for the Clubs. She testified that the Clubs’

owners had the ability to limit access to the Clubs’ social media accounts to Genesis

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only. The owners could also direct Genesis to remove content from their social

media accounts.

The Models argued that appellants appropriated their images to sell the

experience of nude women interacting with the customer base; stated differently, the

purpose of the advertising was to get customers into the Clubs. In support of their

argument, the Models pointed to the following excerpts from Cowart’s testimony:

Q. Right. They’re all strip clubs where men can go or women can go
and watch beautiful women take off their clothes, interact with them,
have a drink with them, those types of things, right?

A. Correct.

Q. So is that what these clubs are selling, that experience? In other
words, the ability to go and see beautiful women dance and take off
their clothes and have that interaction?

A. Yeah.

Q. Okay. And that’s why you’re putting beautiful women in your
advertisements, correct, in order to basically show what goes on at the
club, correct?

A. I mean, I use the beautiful – in my experience, the beautiful women
that we use are usually our dancers. So in that scenario, it makes sense
to use them and put up an advertisement. Because if an individual
comes as a result of the advertisement, they’re not going to be angry
when they get there because the person they’re looking for from the
photo will actually be there dancing.

Q. Right. So it’s a reasonable assumption that in the advertising, you
know, I’m looking at a woman who I can actually go to one of these
clubs and see and interact with. Is that a fair statement?

A. Yes.
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Q. And that’s why you’re using women in the advertisements, correct?
Because you want to portray these businesses as a place where I can go,
as a male in that demographic or a female that’s interested in that sort
of thing, I can go and see this beautiful woman in the ad take off her
clothes and maybe talk to her, buy her champagne or whatever?

A. Yes.
...

Q. Okay. And then you testified earlier that the purpose of using the
beautiful women in the advertisements was to at least let people know
what goes on in the club, correct?

MR. MOSCOWITZ: Object to the form.

A. Technically my testimony earlier was that we use – we like to use
our beautiful women so that the customers, if they see them and they
come to the club, they’ll be able to see the girls that they saw in the
advertisement.

Q. Okay. And then would you agree with me that, you know, it’s
virtually impossible to make a distinction between the images of my
clients and the images of your dancers with respect to these ads unless
you have the behind-the-scene knowledge that you do?

A. Correct.

Q. Okay. And then, again, the purpose of these ads in Exhibits 2, 3,
and for Centerfolds, Splendor, and Treasures, was – whether it’s
working or not, the purpose is to get the clubs out to the public, correct?

MR. MOSCOWITZ: Object to the form.

A. Correct.

It is undisputed that neither appellants nor Genesis had permission to use the

Models’ images in advertisements for the Clubs.

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2. Each model can be identified from the advertisement.

In support of this element, the Models pointed to Exhibits A through P

attached to their motion for summary judgment. These exhibits are the sworn

declarations of each of the sixteen models and include the images of each model that

appeared in the Clubs’ advertisements. In the declarations, each model identified

herself as the model whose images were inserted into the Clubs’ advertisements at

issue.

3. Appellants received an advantage or benefit from the misappropriation.

The Models argued that the summary judgment evidence established that

appellants used their images without permission and that they received a benefit

from the misappropriation of those images. They pointed to Cowart’s testimony that

the Clubs sell the experience of seeing the women who have appeared in the

advertisements and interacting with those women at the Clubs, and that the purpose

of the advertising is to get customers into the Clubs.

The Models further argued that Cowart’s testimony made clear that appellants

were aware of the fact that an image has value and that its usage must be bargained

for if it is to be used to advertise and market the Clubs. Cowart testified:

Q. I’m asking if you’ve ever spoken to any person who has appeared in
advertisement for your clubs?

A. Yes.

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Q. Okay. Who have you spoken to that [has] appeared in the
advertising?

A. That I can think of right now, there was one girl who was dancing,
was Crystal Star. She agreed to have her photos taken and used as our
advertisement. And she was a current or not a current but at the time
her photo was used, she was an active dancer. So obviously I had
conversations with her because she worked on a daily basis.

Q. Okay. So when you spoke to – let’s call her Crystal – when you
spoke to Crystal, did you approach her or did she approach you about
appearing in the advertising?

A. No, she approached me.

Q. All right. And so she said I’d like to appear in advertising for the
club. What conversations did you have or what agreement did you
work out with Crystal to appear in an advertising?

A. I had her sign the required release. And the agreement was in
exchange for her – the use of her image in our advertisement, she would
receive 20 free floor fees. So for 20 times that she came to work, she
wouldn’t have to pay a floor fee.

Q. How much is a floor fee?

A. It ranges depending on what time you get there.

Q. What’s the range?

A. Anywhere from free to $50.

Q. Okay. So can we split the difference with an average of 25 bucks?

A. True.

Q. And then that all depends on what time you get there, correct?

A. Correct.

22
Q. So 25 times 20 – I’m not a good mathematician, but that’s 500 bucks,
correct?

A. Yes.

Q. Okay. So $500 consideration and a release was what you negotiated
with Crystal to appear in the advertising, correct?

A. Correct.

The Models asserted that despite knowing that images have value and that

their usage must be bargained for, appellants neither bargained for nor paid the

Models to use their images in the Clubs’ social media advertisements. The Models

further asserted that “[i]n addition to the benefit and advantage of getting something

for nothing, [appellants] continued to attract patrons to [their] club[s] for years with

the posting and re-posting of [the Models’] images.”

C. Summary Judgment Response

Appellants’ summary judgment response challenged only the third element of

the Models’ misappropriation claim. They argued, as they now do on appeal, that

the Models produced no evidence that appellants had received a commercial benefit

from their social media posts that, without such posts, the Clubs would not have

otherwise received. In support of their argument, appellants pointed to the following

excerpt from Cowart’s deposition testimony:

Q. Okay. Let me ask you a broader question. With respect to this
advertising, what’s – why do the clubs advertise?

A. Can I be blunt here?
23
Q. Yeah. I mean, I – you’re under oath.

A. I want to be one hundred percent honest with you, we don’t need to
advertise. We have our clientele. Regardless of which establishment
we’re discussing, regardless of its location, if a customer is going to
come to that type of establishment, I don’t need to advertise; that man
is coming regardless. So advertisement is really, in my 20 years, very,
very limited.

Citing Henley, appellants argued that “the mere fact that [the ad] was

published and the defendant [] intended to make a profit from the [ad] is not enough

to constitute commercial benefit.” Id. at 596. Appellants emphasized that “Ms.

Cowart, with over 20 years of experience in the male entertainment industry,

testified that Facebook posts do not increase revenue or business ‘at all.’”

When Cowart was later asked about her previous testimony, she testified:

Q. Okay. Well, let me ask you kind of an obvious question with respect
to your prior answer about advertising. I mean, if Centerfolds and
Splendor, Cover Girls and Treasures don’t need to advertise, then why
are you paying, you know, 64 or $6,600 a month between Night Moves
and Genesis to advertise?

MR. MOSCOWITZ: Object to the form.

A. I mean, realistically, I think we pay Genesis and – to do Facebook
because someone told the Davari brothers that it would be a good idea
to advertise on Facebook. But it generates no – it doesn’t increase our
revenue, at least in my personal opinion. It doesn’t increase our
business at all, these – these Facebook ads and Night Moves.

Q. Okay. And you said that that’s your personal opinion. Is that
something you track or have data to support, or is that just your
observation based on 20 years of doing this?

24
A. I have no data with respect to revenue, but just my observations from
20 years.

When viewed in the light most favorable to appellants, Cowart’s testimony is

more than a scintilla of evidence raising a fact issue as to whether the Clubs received

a commercial benefit in the form of increased revenue or foot traffic as a result of

appellants’ use of the Models’ images in their social media advertisements. See

Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

This conclusion, however, does not end our analysis. In support of the

commercial benefit element of their misappropriation claim, the Models also

produced evidence that appellants used the Models’ images in their social media

advertisements over several years, without their permission, and without

compensating them for the use of those images. Cowart’s testimony that appellants

had previously bargained with and compensated another dancer for the use of her

image, together with the undisputed evidence that appellants did not pay the Models

for the use of their images in the Clubs’ advertisements, is evidence that appellants

received a benefit in the form of free advertising.

In response, appellants argued that the Models’ assertion that appellants

received a benefit, based on Cowart’s testimony about appellants’ use of another

dancer’s image in an advertisement for the Clubs for which they bargained and

compensated the dancer, is nothing more than a conclusory statement that cannot

support summary judgment. We disagree. A conclusory statement is one that does
25
not provide the underlying facts to support the conclusion. See Wills v. USAA Gen.

Indem. Co., No. 01-22-00304-CV, 2023 WL 8459498, at *5 (Tex. App.—Houston

[1st Dist.] Dec. 7, 2023, no pet.) (mem. op.); see also Conclusory, BLACK’S LAW

DICTIONARY (11th ed. 2019) (defining “conclusory” as “[e]xpressing a factual

inference without stating the underlying facts on which the inference is based.”).

Here, the Models’ assertion that appellants received a benefit when they used their

images without paying for them is based on summary judgment evidence showing

that appellants recognized that images have value and must be bargained for, as

demonstrated by the fact that appellants had previously compensated another dancer

for the use of her image in the Clubs’ advertisements. By appropriating the Models’

image or likeness, appellants received the benefit of years of free advertising for

their Clubs without seeking permission or paying for their use. See Henley, 46 F.

Supp. 2d at 597 (“By appropriating Plaintiff’s name or likeness, Defendant received

the benefit of a celebrity endorsement without asking permission or paying a fee.”).

Appellants have not produced any evidence raising a material fact issue on this point.

See Buck, 381 S.W.3d at 527 (noting undisputed evidence may be conclusive of

absence of material fact issue).

The Models have conclusively proved each element of their invasion of

privacy by misappropriation claim. We hold that the trial court did not err in

26
granting summary judgment on the Models’ misappropriation claim.5 We overrule

appellant’s first issue.

5
In Souza v. Mirage Entertainment, Inc., No. 2:21-CV-00015, 2023 WL 8936699
(S.D. Tex. 2023), the district court considered a similar misappropriation claim
brought by professional models, spokesmodels, actresses, and social media
influencers who sued the defendant for using their likenesses in advertisements for
Defendant’s strip club without authorization or compensation. See id. at *1. The
plaintiffs sought judgment as a matter of law on their claims. See id. The U.S.
Magistrate Judge issued a memorandum and recommendation recommending that
the plaintiffs’ motion be denied in its entirety because there were disputed issues of
material fact precluding judgment as a matter of law on each of the asserted claims.
See id.

The district court judge disagreed, finding that the plaintiffs had demonstrated as a
matter of law that they satisfied the “commercial benefit” element of their
misappropriation claim. See id. at *3-4. In particular, the court noted:

As Defendant’s own witness testified, it used images for free when it
might have paid $500 for them under an arm’s length negotiation
(considering his limited budget). Consequently, the evidence shows
that these are images of a value he could not otherwise afford or use—
if Plaintiffs were to set their own price or refuse to allow it to use their
images, as they testified in their affidavits. Defendant also recognized
some benefit or advantage because it continually used the images in
its advertising strategy to bring in customers and sell drinks.

....

It is clear that Defendant perceived value in appropriating the images
for its advertising. And it obtained the advantage of using images it
could not afford. Thus, Plaintiffs have demonstrated as a matter of
law that the third element is satisfied: Defendant received some
benefit or advantage.

Id.
27
Negligence Claim

In their second issue, appellants contend that the trial court erred in granting

summary judgment on the Models’ negligence/respondeat superior claim. They

assert that while the Models argued that appellants were negligent in failing to

implement or adhere to policies to prevent misappropriation of the Models’ images

or, if policies were in place, failing to enforce them in a manner that did not cause

injury to the Models, they did not provide any evidence that appellants created any

of the social media posts themselves, had final approval or authority over the use or

dissemination of any such advertisements, or that appellants controlled the

dissemination of any such advertisements. Appellants argue that they presented

evidence establishing the opposite—that their third-party vendor, Genesis, was

solely responsible for creating and posting the social media content. They assert that

the summary judgment evidence does not support summary judgment on a direct

liability theory (negligence or negligent undertaking).

A. Respondeat Superior

Generally, a person has no duty to control the conduct of another. Otis Eng’g

Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Under the doctrine of respondeat

superior, however, an employer may be liable vicariously for the negligent acts of

its employee if the employee’s actions are within the course and scope of his

employment. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex.

28
2018). Within the “course and scope of employment” means within the scope of the

employee’s general authority, in furtherance of the employer’s business, and for the

accomplishment of the object for which he was hired. Id. at 132 (quoting Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)). “An employer is

not responsible for what occurs when an employee deviates from the performance

of his duties for his own purposes.” Id. at 137.

Intentional torts may still meet the standard “when the act, although not

specifically authorized by the employer, is closely connected with the servant’s

authorized duties.” GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999). An

employer will be held liable for its employee’s intentional torts that “stem[] directly

from the employee’s exercise (however inappropriate or excessive) of a delegated

right or duty.” ANA, Inc. v. Lowry, 31 S.W.3d 765, 770 (Tex. App.—Houston [1st

Dist.] 2000, no pet.). Course and scope of employment, for purposes of determining

an employer’s vicarious liability for the acts of its employee or agent, is generally a

fact issue. See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex. App.—

Austin 2004, no pet.); see also GTE Sw., Inc., 998 S.W.2d at 618; Texas Workers’

Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995). When, as here, one

entity contracts with another, there is no vicarious liability unless the one obtaining

the other to work “retains some control over the manner in which the contractor

29
performs the work that causes the damage.” See JLB Builders, L.L.C. v. Hernandez,

622 S.W.3d 860, 864–65 (Tex. 2021) (quotations omitted).

In their summary judgment motion, the Models asserted that appellants were

vicariously liable under the theory of respondeat superior because Genesis was

acting within the course and scope of its employment with appellants when the

Models’ images were posted to appellants’ social media accounts. In support of their

assertion, the Models pointed to Cowart’s testimony that Genesis was paid by D.

Texas Investments, appellants’ parent company, and all of the advertisements at

issue were advertisements for the Clubs. Each Club owned its own website and

social media account where the images were posted, and the Clubs’ owners had the

ability to order any images or posts be taken down.

With respect to appellants’ policy requiring that a signed release be obtained

prior to posting, Cowart testified:

Q. Okay. Since these allegations have become known to you – and,
you know, this has been a cycle with COVID and the insurance issues,
I mean, this case has gotten kicked down the road. Have y’all made
any changes in your agreements with Night Moves and Genesis with
respect to imagery used in your ads?

MR. MOSCOWITZ: Object to the form.

A. We – I mean, our policy, with respect to the companies, has been the
same from day one. You have to have a release signed by the individual
stating that it’s okay to use their image.

Q. Is that a written policy?

30
A. I think so actually.

Q. Do you know where it is?

A. If my memory is serving me correctly, there is a document that was
signed by each of my managers where they acknowledge that they’re
not to post or photograph anyone without a proper release.

Q. When was that signed?

A. I would have to check.

Q. Was it signed before or after the lawsuit?

A. I don’t know.

Q. Who created that document?

A. I don’t know.
....

Q. Okay. And that document has [the] signature of each manager
stating that they’re not going to post content without a written release,
correct?

A. That’s my general, off the top of my head, recollection of the
language in the contract, but yes.

Q. Okay. And is that part of the employment agreement you have with
the general managers?

A. It is not part of their actual employment agreement. It was a separate
notice.

Q. Okay. And, again, you don’t remember if that’s before or after this
lawsuit?

A. I don’t know.

Q. Okay. Do you know why it was implemented?
31
A. I mean, it’s important to make sure that everyone is aware and
remembering what our rules are and our policies are.

Q. Do you have the same agreement with Genesis?

MR. MOSCOWITZ: Object to the form.

A. With respect to posting of images?

Q: Yeah. That – in other words, if they’re going to post content
advertising your clubs on your website and bring business into your
clubs, that they need to have a release from the people that they’re using
to advertise the clubs?

MR. MOSCOWITZ: Object to the form.

A: Yes, we do.

The Models asserted that the evidence showed that, ultimately, appellants had

control over the Clubs’ websites, including the ability to remove content, and they

had policies in place to prevent the misuse of images but they failed to monitor their

employees and agents for years, resulting in the misappropriation of the Models’

images. As such, appellants are liable for the conduct of their employees and agents

under a theory of respondeat superior.

In response, appellants asserted that the Models produced no evidence that

appellants had final approval or authority over the use or dissemination of the

advertisements at issue, or that they controlled the dissemination of such

advertisements. They further asserted that the Models failed to show that Genesis

acted within the course and scope of its authority by posting images without first

32
obtaining releases. They pointed to Cowart’s testimony, attached as summary

judgment evidence to their response, showing that Genesis alone handled both the

selection and posting of images for the Clubs’ advertisements, and that the only

content supplied by the Clubs related to food and drink specials, which Genesis

incorporated into the posts it created. They also pointed to the undisputed evidence

that appellants maintained policies applicable to Genesis, as their third-party vendor

responsible for social media posts, that required Genesis to first obtain a release prior

to posting content for the Clubs. Appellants argued that by posting images of the

Models without a release, Genesis acted outside the course and scope of its

agreement with appellants and outside the scope of its authority. Thus, they argued,

the Models failed to establish that appellants breached a duty to them because

Genesis’s actions, which fell outside the scope of the authority appellants granted to

Genesis, could not be imputed to appellants under a negligence or respondeat

superior theory of liability.

Viewing the evidence in a light most favorable to appellants, as the

nonmovants, we conclude that they have presented more than a scintilla of evidence

raising a fact question regarding whether Genesis acted within the course and scope

of its authority. See Neely, 418 S.W.3d at 59; see also Arbelaez, 149 S.W.3d 720

(noting course and scope is generally fact issue).

33
B. Negligent Undertaking

Generally, Texas law imposes no duty to take action to prevent harm to others

absent certain special relationships or circumstances. See Torrington Co. v.

Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Garcia v. Kellogg Brown & Root Servs.,

Inc., No. 01-19-00319-CV, 2020 WL 3820426, at *6 (Tex. App.—Houston [1st

Dist.] July 7, 2020, no pet.) (mem. op.). However, one who voluntarily undertakes

an affirmative course of action for the benefit of another has a duty to exercise

reasonable care that the other’s person or property will not be injured by the

undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976). To

establish a “negligent undertaking,” a plaintiff must show that (1) the defendant

undertook to perform services that it knew or should have known were necessary for

the plaintiff’s protection,; (2) the defendant failed to exercise reasonable care in

performing those services; and either (a) the plaintiff relied upon the defendant’s

performance, or (b) the defendant’s performance increased the plaintiff’s risk of

harm. Nall v. Plunkett, 404 S.W.3d 552, 555–56 (Tex. 2013) (citing RESTATEMENT

(SECOND) OF TORTS § 324A (providing rule for liability to third person for negligent

performance of undertaking)). The critical inquiry concerning the duty element of

a negligent undertaking theory is whether a defendant acted in a way that requires

the imposition of a duty where one would not otherwise exist. Elephant Ins. Co. v.

Kenyon, 644 S.W.3d 137, 151 (Tex. 2022). Thus, to succeed on their negligent

34
undertaking theory, the Models had to show that appellants undertook, gratuitously

or for consideration, to render services that they knew or should have known were

necessary for the protection of the Models’ person or things and either (1) failed to

exercise reasonable care and increased the risk of physical harm to the Models or (2)

harm resulted because of the Models’ reliance on the undertaking. See id. at 151.

In support of their negligent undertaking claim, the Models asserted that

appellants “assumed a duty by choosing to use the images of any model for

commercial purposes and were charged with exercising that duty in accordance with

the proper standard of care,” and they “had a duty to ensure that they had all the

rights to use the materials they ultimately used and republished.” Appellants’

summary judgment evidence, however, showed that Genesis alone selected and

posted the images for the Clubs’ advertisements, and that the only content supplied

by the Clubs related to food and drink specials, which Genesis incorporated into the

posts it created. The Models have presented no evidence that appellants undertook

to render any services to them.

The Models failed to conclusively prove, and genuine issues of material fact

exist as to, both of their negligence theories. See Clarent Energy Servs., 2020 WL

1173706, at *6–7. We hold the trial court erred when it granted summary judgment

35
in favor of the Models on their negligence claims. We sustain appellants’ second

issue.6

Damages

In their third issue, appellants assert that the trial court improperly awarded

unliquidated damages to the Models in excess of $1.4 million as a matter of law.

They argue, among other things, that the damages sought are highly subjective and

not readily susceptible to objective, conclusive calculation and, as such, are a fact

issue for the jury.

In its final judgment, the trial court awarded $1,405,000.00 in damages to the

Models, divided among each of the Models as set forth below:

Plaintiff Damages

Skinner $160,000
Middleton $60,000
Gaxiola $30,000
Zharinova $15,000
Hinton $200,000
Posada $210,000

6
Following oral argument, with leave of court, appellees filed a supplemental brief
to address the election-of-remedies doctrine and appellants filed a supplemental
response brief. Both parties concluded in their supplemental briefing that the
election-of-remedies doctrine does not apply in this case. In their brief, appellants
request that we award them damages under Rule of Appellate Procedure 45 to
compensate appellants for their attorney’s fees and costs incurred in responding to
appellees’ supplemental brief which they contend is objectively frivolous. We deny
appellants’ request. See Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied) (holding decision to grant appellate sanctions is matter
of discretion that appellate court exercises with prudence and caution).

36
Pinder $40,000
Canas $105,000
Valencia $45,000
Toth $240,000
Farrell $40,000
Sears $20,000
Swedberg $100,000
Quy $40,000
Gibson $60,000
Turner $40,000

The damages award was based on Chamberlin’s expert reports.

A claim is liquidated if the amount of damages caused by the defendant can

be accurately calculated from the factual, as opposed to conclusory, allegations in

the petition, and an instrument in writing.7 2017 Yale Dev. LLC v. Holtzapple Neal

7
Documents that courts have found to constitute written instruments in this context
include contracts, lease agreements, tax records, receipts, and invoices. See, e.g.,
Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 37 (Tex. App.—Houston
[1st Dist.] 2003, no pet.) (concluding damages had “the appearance of
being liquidated because they seem[ed] capable of proof by written instruments”
but should have been treated as unliquidated because “written instruments, such as
invoices or receipts, were not produced along with the [general manager’s]
affidavit”); Aavid Thermal Techs. of Tex. v. Irving Indep. Sch. Dist., 68 S.W.3d 707,
711 (Tex. App.—Dallas 2001, no pet.) (concluding certified copies of tax rolls and
tax statements were written instruments from which taxes could be calculated in suit
to recover delinquent ad valorem taxes); Novosad v. Cunningham, 38 S.W.3d 767,
773 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding suit to recover
amount due for professional accounting services was liquidated claim proved by
written instruments where plaintiff attached original invoices to verified
petition); Mantis v. Resz, 5 S.W.3d 388, 392 (Tex. App.—Fort Worth 1999, pet.
denied) (in suit on sworn account, holding claim was liquidated where trial court
had before it original petition with attached sworn account and verification of sworn
account by affidavit); Sheshunoff & Co., Inc. v. Scholl, 560 S.W.2d 113, 116 (Tex.
Civ. App.—Houston [1st Dist.] 1977) (holding, in suit to recover damages for
breach of employment contract, claim for damages was liquidated and proved by
37
Props. Grp. LLC, 01-23-00305-CV, 2025 WL 1225107, at *8 (Tex. App.—Houston

[1st Dist.] Apr. 29, 2025, no pet.) (mem. op.); Dansk Express, LLC v. IPFS Corp.,

01-22-00621-CV, 2023 WL 4937497, at *8 (Tex. App.—Houston [1st Dist.] Aug.

3, 2023, no pet.) (mem. op.); Okorafor v. Lewis, No. 14-08-00130-CV, 2010 WL

1343125, at *3 (Tex. App.—Houston [14th Dist.] Apr. 6, 2010, no pet.) (mem. op.).

Damages that do not fit into this category are unliquidated. Okorafor, 2010 WL

1343125, at *3.

Unliquidated damages encompass most personal injury damages because they

are not susceptible to precise calculation. Id. “Tort actions almost always involve

unliquidated damages.” Kennedy v. Aattaboy Termite & Pest Control, Inc., No. 09-

19-00109-CV, 2021 WL 1567225, at *3 (Tex. App.—Beaumont Apr. 22, 2021, no

pet.) (mem. op.). “[B]ecause there is no way to quantify the value of unliquidated

damages as a matter of law, an award of such damages necessarily must be decided

by the trier of fact rather than summary judgment.” Okorafor, 2010 WL 1343125,

at *3 (citing Rivera v. White, 234 S.W.3d 802, 806 (Tex. App.—Texarkana 2007, no

pet.) (“Summary judgment is rarely appropriate when the issue is inherently one for

the trier of fact to decide in cases involving unliquidated damages.”)); see Priority

One Title, LLC v. Andrado, No. 14-21-00379-CV, 2023 WL 2259092, at *8 (Tex.

employment contract attached to petition), rev’d on other grounds, 564 S.W.2d 697
(Tex. 1978).
38
App.—Houston [14th Dist.] Feb. 28, 2023, no pet.) (mem. op.) (“Rarely, if ever,

should unliquidated damages be awarded in a summary judgment.”).

Appellants argue that the Models’ damages cannot be accurately calculated

from the pleadings and summary judgment evidence. We agree. In their petition,

the Models sought “[p]ecuniary damages resulting from the unauthorized use of

[their] images and likeness[es] in the past and in the future.” The Models stated in

their declarations, attached as summary judgment evidence to their motion, that they

never worked with the Clubs or entered into any agreement with the Clubs. See Star

Elec., Inc. v. Northpark Off. Tower, LP, 01-17-00364-CV, 2020 WL 3969588, at

*16 (Tex. App.—Houston [1st Dist.] July 14, 2020, no pet.) (mem. op.) (“The term

‘liquidated damages’ generally refers to an acceptable measure of damages that the

parties stipulate in advance will be assessed in the event of a breach of their

contract.”); Kennedy, 2021 WL 1567225, at *3 (“The difference between liquidated

and unliquidated damages is clear. . . . [L]iquidated damages exist ‘when the parties

to a contract have agreed in advance on the measure of damages to be assessed in

the event of default.’ In contrast, unliquidated damages are damages ‘that have not

been previously specified or contractually provided for.’”) (quotations omitted).

Although Chamberlin stated in his reports that he reviewed documents provided by

the Models in calculating a damage award—contracts and agreements, contractor

1099 forms, employee W-2 forms, earnings statements, and releases and related

39
records—these documents pertain solely to work the Models did for other clients,

not appellants. See Kennedy, 2021 WL 1567225, at *3 (“And while Aattaboy

supported its traditional motion with an affidavit from a CPA, which describes

Aattaboy’s damages and is consistent with the summaries Aattaboy provided with

its motion, the opinions of a damage expert drawn from such evidence is not the

same as conclusive proof on which no reasonable person would disagree.”).

Chamberlin further stated that his calculations of the fair market value for each

Model’s images used by appellants “are estimations in support of actual damages

sustained by the Models . . . .”

The Models’ damages are unliquidated because they cannot be accurately

calculated from reviewing the petition or written instruments on file. See Clear Lake

Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527, 545 (Tex. App.—Houston [14th

Dist.] 2013, no pet.); Okorafor, 2010 WL 1343125, at *3. The trial court thus erred

in awarding them as a matter of law. See City of Keller, 168 S.W.3d at 816. We

sustain appellants’ third issue.

Remedy on Appeal

We have concluded that fact issues precluded summary judgment in favor of

the Models on their negligence claims but that the Models were entitled to summary

judgment on their misappropriation claim. Notwithstanding, we are compelled,

under Texas law, to reverse the judgment and remand for a new trial on both

40
damages and liability. See Clear Lake Ctr., 416 S.W.3d at 545; Okorafor, 2010 WL

1343125, at *1.

Texas Rule of Appellate Procedure 44.1 states that even if error affects only

part of the trial court’s judgment, we “may not order a separate trial solely on

unliquidated damages if liability is contested.” T EX. R. APP P. 44.1(b); see also

Rancho La Valencia, Inc. v. Aquaplex, Inc., 383 S.W.3d 150, 151–52 (Tex. 2012).

This rule applies when we reverse a summary judgment because of the plaintiff’s

failure to conclusively prove damages. See Okorafor, 2010 WL 1343125, at *4; see

also Rosales v. Williams, No. 01-09-00454-CV, 2010 WL 457536, at *6 (Tex.

App.—Houston [1st Dist.] Feb. 11, 2010, no pet.) (mem. op.) (reversing summary

judgment for landlord and remanding to trial court because damages were not

conclusively established for breach of residential lease, liability was contested by

filing general denial, and damages were unliquidated).

Appellants contested liability by filing a general denial. See Estrada v. Dillon,

44 S.W.3d 558, 562 (Tex. 2001) (“If a party files a general denial in the trial court,

that pleading puts a plaintiff to his or her proof on all issues, including liability; its

effect extends to contesting liability in the event of remand on appeal.”). And the

damages in this case are unliquidated because they cannot be determined from

reviewing the petition and written instruments on file. See Clear Lake Center, 416

S.W.3d at 545; Okorafor, 2010 WL 1343125, at *3. Because Rule 44.1(b)

41
proscribes a separate trial on unliquidated damages when liability is contested, we

must reverse the trial court’s judgment on liability as well as damages.8 See TEX. R.

APP. P. 44.1(b); Estrada, 44 S.W.3d at 562.

Conclusion

In accordance with Texas Rule of Appellate Procedure 44.1, we reverse the

trial court’s judgment and remand the case for a new trial on liability and damages.

We dismiss any pending motions as moot.

Kristin Guiney
Justice

Panel consists of Justices Rivas-Molloy, Guerra, and Guiney.

8
We do not address appellants’ argument that we should decline to consider Exhibit
U as it is unnecessary to the disposition of the appeal. See TEX. R. APP. P. 47.1.

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