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Affirmed and Memorandum Opinion filed March = 18,=20 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00058-CV

____________

 

BEAUTY ELITE=20 GROUP, INC., PETSILK, INC., and BASIM SHAMI, = Appellants

 

V.

 

IRWIN=20 PALCHICK, = Appellee

 

 

On Appeal from the = 164th Judicial District Court

Harris County, = Texas

Trial Court Cause = No. 2004-45700

 

 

M E M O R=20 A N D U M  O P I N I O N

Appellants Beauty = Elite Group,=20 Inc., PetSilk, Inc., and Basim Shami (collectively AShami@) appeal a judgment = in favor of=20 Irwin Palchick on grounds that the trial court erred in (1) = denying Shami=20 relief on claims for trademark infringement and unfair = competition; (2)=20 awarding attorney=3Ds fees to Palchick = when=20 Palchick pleaded and proved presentment of an amount exceeding the = amount=20 actually recovered on his contract claim; and (3) denying Shami = recovery=20 of attorney=3Ds fees under the = Lanham=20 Act.  We affirm.

Background

In March 2003, Shami = hired=20 Palchick as an independent contractor to sell pet care supplies = under the=20 PetSilk label and human hair care products under the Beauty Elite=20 label.  Shami orally contracted with Palchick to sell these = products=20 for a five percent commission on gross receipts.   Shami = terminated the oral agreement with Palchick on June 7, 2004.  = After=20 the termination, Palchick registered certain assumed names = Asimilar@[1] to Shami=3Ds registered = trademarks and=20 began operating his own corporation called ABeauty Signature=20 Group.@

On August 26, 2004, = Palchick=20 sued Shami for breach of the oral sales commission contract.  = Shami=20 answered and filed a counterclaim against Palchick seeking = injunctive=20 relief and damages based on common law claims for trademark = infringement=20 and unfair competition.  In his counterclaim, Shami asserted = that=20 Palchick=3Ds use of the names = ASilky = Pet,@ APet Silk Flight=20 Pack,@ and ABeauty Signature=20 Group@ caused Adamages in an amount = in excess=20 of the minimum jurisdictional limits of this Court.@  Shami also = requested=20 injunctive relief, alleging Airreparable harm = because the=20 damages sustained by PetSilk will be unpredictable and=20 unending.@  Shami = requested a=20 temporary and permanent injunction barring Palchick from doing = business=20 under the foregoing names; damages; attorney=3Ds fees; and = prejudgment and=20 postjudgment interest.  

After a bench trial, = the trial=20 court awarded Palchick $18,540.97 in damages for Shami=3Ds breach of the oral = sales=20 commission contract; this represented the difference between = $191,085.78=20 (five percent of $3,821,715.52 in gross receipts generated by = Palchick)=20 and $172,544.81 (the commission paid to Palchick).  The trial = court=20 signed findings of fact and conclusions of law on December 19,=20 2006.   The trial court found that Palchick had made a = timely=20 demand for amounts owed under the oral sales commission contract, = and that=20 Shami had refused to tender performance.  Accordingly, the = trial=20 court awarded Palchick $18,428.75 in reasonable and necessary=20 attorney=3Ds fees. The trial=20 court=3Ds final judgment = denied all=20 relief to Shami on his counterclaim.    The trial = court=20 ordered that Shami take nothing and pay all costs of court.  = Shami=20 now appeals.

Injunctive=20 Relief

Shami=3Ds first issue = contends that the=20 trial court erred in denying injunctive relief on his common law = claims=20 for trademark infringement and unfair competition.[2]

Standard of=20 Review    =

            = A court can grant injunctive relief only when the movant has = proven (1)=20 the existence of a wrongful act; (2) the existence of imminent = harm; (3)=20 the existence of irreparable injury; and (4) the absence of a = remedy at=20 law.  Jim Rutherford Invs., Inc. v. Terramar Beach Cmty.=20 Ass=3Dn, 25 S.W.3d 845, 849 = (Tex.=20 App.CHouston [14th Dist.] = 2000, pet.=20 denied).

The decision to grant = or deny a=20 permanent injunction is reviewed for clear abuse of discretion. = Walling=20 v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993);  Jim = Rutherford=20 Invs. Inc., 25 S.W.3d at 849.  We must uphold the = trial=20 court=3Ds determination = against issuing=20 injunctive relief unless it is made without reference to any = guiding rules=20 or principles.  See generally Downer v. Aquamarine = Operators,=20 Inc., 701 S.W.2d 238, 241-41 (Tex. 1985) (discussing abuse of=20 discretion standard). 

A trial court acts = within its=20 discretion when it makes a decision based upon conflicting = evidence, with=20 some evidence supporting the court=3Ds determination and = other=20 evidence contrary to the court=3Ds = determination.  =20 All Am. Builders, Inc. v. All Am. Siding of Dallas, Inc., = 991=20 S.W.2d 484, 487 (Tex. App.CFort Worth 1999, no=20 pet.).  AA clear abuse of = discretion in=20 denying injunctive relief arises only when the trial = court=3Ds decision is not = supported by=20 some evidence of substantial and probative character.@ GTE Mobilnet of = S. Tex.=20 Ltd. P=3Dship v.=20 Pascouet, 61=20 S.W.3d 599, 620 (Tex. App.CHouston [14th Dist.] = 2001, pet.=20 denied).   In a nonjury trial or hearing, determining = the=20 credibility of the witnesses and the weight of testimony lies = within the=20 trial court=3Ds sole = discretion. =20 Griffin Indus., Inc. v. Honorable Thirteenth Court of = Appeals, 934=20 S.W.2d 349, 355 (Tex. 1996).

Analysis          =20

Shami focuses on the = trial=20 court=3Ds Finding of Fact = No.12, which=20 states: AThere was no evidence = adduced=20 at trial that [Shami] suffered any damages as a result of any = alleged=20 unfair competition by [Palchick=3Ds] alleged = misappropriation of=20 [Shami=3Ds] = trademarks.@  Shami asserts = that this=20 finding of fact Agives rise to the = inference=20 that the trial court found Beauty Elite and PetSilk could not = prevail on=20 their trademark and unfair competition claims because there was no = showing=20 of damages.@  Shami does not = challenge=20 on appeal the trial court=3Ds finding that he = proved no=20 damages.   Shami instead argues that proof of monetary = damages=20 is not required to prevail on a trademark infringement or an = unfair=20 competition claim because injunctive relief is available.  = See=20  Qaddura v. Indo-European Foods, Inc., 141 S.W.3d = 882, 889=20 (Tex. App.CDallas 2004, pet. = denied)=20 (injunctive relief is the most common type of relief sought in a = trademark=20 infringement case).

Proving a wrongful = act,=20 standing alone, is insufficient to obtain injunctive relief; each = of the=20 remaining elements for injunctive relief must be = established.  See=20 Samuel v. KTVU P=3Dship,  No. = 08-02-00010-CV,=20 2003 WL 21954925, at *8-9 (Tex. App.CEl Paso Aug. 15, = 2003, pet.=20 denied) (an admission of a wrongful act does not establish the = other=20 elements of injunctive relief).  Shami pleaded a claim for = injunctive=20 relief premised upon Airreparable harm = because the=20 damages sustained@ would be = Aunpredictable and=20 unending.@ But Shami failed to = establish=20 non-monetary harm B such as Aloss of goodwill, = clientele,=20 marketing techniques, office stability@ B  that are = predicates for=20 injunctive relief.  See Graham v. May Kay Inc., 25 = S.W.3d 749,=20 753 (Tex. App.CHouston [14th Dist.] = 2000, pet.=20 denied) (injunctive relief is proper where party proves = non-compensable=20 harm or damages that are difficult to calculate); see also = David v.=20 Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754 (Tex.=20 App.CHouston [1st Dist.] = 1982, no=20 writ) (employee=3Ds use of confidential = information regarding former employer=3Ds = customer=3Ds financial assets = and=20 preferences can constitute a non-monetary injury suitable for = injunctive=20 relief).

When a trial = court=3Ds findings of fact = address one=20 or more of the elements of a claim but are silent regarding the = remaining=20 elements, and more specific findings of fact are not requested, a=20 Apresumption in = support of the=20 judgment@ is made as to the = remaining=20 elements.   See Tex. R. Civ. P. 299; Lindner = v. Hill,=20 691 S.W. 2d 590, 592 (Tex. 1985) (Awhile the trial court = did not=20 specifically address all these elements in its findings of fact, = any=20 omitted findings will be deemed to support the judgment if = evidence exists=20 to support such findings@); Vickery v.=20 Comm=3Dn for Lawyer=20 Discipline, 5=20 S.W.3d 241, 251-52 (Tex. App.CHouston [14th Dist.] = 1999, pet.=20 denied) (Awhile findings of = fact serve to=20 limit the issues on appeal . . . the reviewing court will indulge = every=20 reasonable presumption in favor of the findings and judgment of = the trial=20 court, and no presumption will be indulged against the validity of = the=20 judgment . . . the presumption of validity will provide the = omitted=20 element by implication@); see also Ott v. = Bell,=20 606 S.W.2d 955, 957 (Tex. App.CWaco 1980, no writ) = (applying=20 Rule 299 to supply omitted findings in context of claim for = injunctive=20 relief). 

Even treating Finding = of Fact=20 No. 11 as an express finding that a wrongful act occurred, there = is=20 sufficient evidence in the record to support additional implied = findings=20 in conformity with the trial court=3Ds judgment denying = injunctive=20 relief on grounds that the record fails to demonstrate imminent = harm,=20 irreparable injury, or any damage for which there is no remedy at=20 law.  Palchick testified that the names ASilky = Pet,@ AEquiSilk,@ ASilky Pet = Spa,@ ACool Dog@ and APet Silk@  had been = abandoned=20 before trial;  that no business had been conducted under = those names;=20 that no products had been sold under those names; and that = Palchick had no=20 intention of doing so.  Palchick testified at trial that no = customers=20 contacted Palchick=3Ds Beauty Signature = Group=20 thinking they were contacting Shami=3Ds Beauty Elite = Group. =20 Palchick further testified that both corporations are diversion=20 corporations,[3] = and that=20 their product labels do not contain the names of = Palchick=3Ds Beauty Signature = Group or of=20 Shami=3Ds Beauty Elite = Group. =20          

Shami asserted at = trial that=20 the similarity of the names used by Palchick was Adestruction to my=20 company,@ and stated that the=20 Adeceptively similar=20 name@ of Beauty Signature = Group was=20 Avery confusing to=20 customers.@[4]  Even if it is = assumed=20 that Shami did proffer some evidence, there is sufficient = competing=20 evidence of lack of harm to support implied findings in conformity = with=20 the trial court=3Ds judgment denying = injunctive=20 relief.

Shami=3Ds first issue is=20 overruled.

 Attorney=3Ds Fees

Shami=3Ds second issue = contends that=20 the trial court abused its discretion in awarding = attorney=3Ds fees because = Palchick sought=20 an amount for his contract claim exceeding the amount actually = recovered=20 as contract damages.[5] =

Standard of=20 Review

As a general rule,=20 attorney=3Ds fees are not = recoverable in=20 Texas unless allowed by contract or statute.  Brainard v. = Trinity=20 Universal Ins. Co., 216 S.W.3d 809, 817 (Tex. 2006).  = Determining=20 whether attorney=3Ds fees are available = under a=20 statute is a question of law reviewed de novo.  See = Holland=20 v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999).  = The=20 reasonableness of the amount of attorney=3Ds fees is a question = for the=20 trier of fact.  Stewart Title Guar. Co. v. Sterling, = 822=20 S.W.2d 1, 12 (Tex. 1991).  AWhere allowed by = statute, the=20 allowance of attorney=3Ds fees is within the = discretion=20 of the trial court and will only be reversed for an abuse of that=20 discretion.@  Llanes v. = Davila,=20 133 S.W.3d 635, 640 (Tex. App.CCorpus Christi 2003, = pet.=20 denied) (citing Ragsdale v. Progressive Voters League, 801 = S.W.2d=20 880, 881 (Tex. 1990)).

Under statute, a = party may=20 recover reasonable attorney=3Ds fees on a contract=20 claim.  Tex. Civ. Prac. & Rem Code Ann. ' 38.001(8) (Vernon = 1997). =20 To recover attorney=3Ds fees, a party must = (1)=20 prevail upon a cause of action for which attorney=3Ds fees are available; = and (2)=20 recover damages.  Green Int=3Dl Inc. v. = Solis, 951 S.W.2d 384, 390 = (Tex.=20 1997). 

Additionally, before=20 attorney=3Ds fees can be = recovered, a=20 party must plead and prove presentment of a contract claim to the = opposing=20 party, and the opposing party must fail to tender timely = performance. Tex.=20 Civ. Prac. & Rem Code Ann. ' 38.002(2),(3) = (Vernon 1997);=20 Brainard, 216 S.W.3d at 817.  AThe term >present=3D has been defined to = mean=20 simply a demand or request for payment.@  Llanes, = 133=20 S.W.3d at 641.  No particular form of presentment is = mandated, and=20 this requirement may be satisfied in writing or orally. = Qaddura,=20 141 S.W.3d at 892-92; Harrison v. Gemdrill = Int=3Dl, = Inc., 981 S.W.2d 714, 719 = (Tex.=20 App.CHouston [1st Dist.] = 1998, pet.=20 denied).  The presentment requirement provides an opportunity = for=20 payment of the claimed contract amount before attorney=3Ds fees have been=20 incurred.  Brainard, 216 S.W.3d at 818.  =

A creditor=20 who presents an excessive demand to a debtor is not entitled to=20 attorney=3Ds fees for=20 subsequent litigation required to recover the debt. Findlay v.=20 Cave, 611=20 S.W.2d 57, 58 (Tex. 1981).  Excessive = demand is an=20 affirmative defense that must be pleaded, and the evidence must=20 demonstrate unreasonableness or bad faith.  Kurtz v. = Kurtz,=20 158 S.W.3d 12, 21 (Tex. App.CHouston [14th Dist.] = 2004, pet.=20 denied) (excessive demand is an affirmative defense that is waived = if not=20 pleaded).

In Findlay, the=20 Texas Supreme Court instructed that the prohibition on = recovery of=20 attorney=3Ds fees=20 following an excessive demand applies only when (1) the claim is = for a=20 liquidated debt; and (2) the creditor refused the = debtor=3Ds tender=20 of the liquidated amount actually due or indicated that such a = tender=20 would be refused. Findlay, 611 S.W.2d at 58; see also = Hernandez=20 v. Lautensack, 201 S.W.3d 771, 777 (Tex. App.CFort Worth=20 2006, pet. denied) (rule is limited to situations where the = creditor=20 refuses a tender or indicates he will refuse a tender of what is = actually=20 owed); Tuthill v. Sw. Pub. Serv. Co., 614 S.W.2d 205, 212 = (Tex.=20 App.CAmarillo=20 1981, writ ref=3Dd n.r.e.)=20 (demand is not excessive unless the creditor wrongfully demands = more than=20 the amount due and creditor refuses or indicates he will refuse = tender of=20 the amount actually due). 

An award=20 of an amount less than the demand is not dispositive.  See = Findlay, 611 S.W.2d at 58; Alford v. Johnston, = 224 S.W.3d=20 291, 298 (Tex. App.CEl Paso 2005, pet. = denied)=20 (absent additional showing of unreasonableness or bad faith, award = of=20 attorney=3Ds fees is not = precluded solely=20 because the amount of damages awarded is less than the amount = sought);=20 Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc.,  176 = S.W.3d=20 307, 318 (Tex. App.CHouston [1st Dist.] = 2004, pet.=20 denied) (AThe=20 dispositive question in determining whether a demand is excessive = is=20 whether the claimant acted unreasonably or in bad = faith@).

Analysis

Shami=3Ds second=20 issue encompasses two sub-issues: whether presentment was made, = and=20 whether the presentment was excessive so as to bar recovery. =

With=20 respect to whether presentment was made, there is no indication in = the=20 record that Shami objected in the trial court that Palchick failed = to=20 present his claim for contract damages.[6] =20 Palchick prevailed in a contract suit and recovered damages.  = Palchick pleaded and established that he fulfilled the condition = precedent=20 to recovery of attorney=3Ds fees by=20 offering Shami an opportunity to perform the contract before suit = was=20 filed.  See Green Int=3Dl=20 Inc., 951=20 S.W.2d at 390.  Both the pleadings and the record establish = proper=20 presentment.

Palchick=3Ds third=20 amended petition recited as follows:

Pursuant=20 to Texas Civil Practice and Remedies Code Sections 38.001 and = 38.002,=20 Plaintiff would show that he may recover his reasonable and = necessary=20 attorney=3Ds fees=20 incurred in presenting and prosecuting the within suit.  To = wit, the=20 claim is one for breach of oral contract as provided at Section = 38.001(8)=20 or services rendered or labor performed pursuant to Section = 38.001(1) and=20 (2).  Timely demand for payment was made and refused as = required by=20 Section 38.002.

Shami did=20 not challenge the filing of or the contents of = Palchick=3Ds third=20 amended petition.[7] =20 Shami did not contest Palchick=3Ds=20 allegation that all conditions precedent to the recovery of=20 attorney=3Ds fees=20 were satisfied.  Shami cannot complain for the first time on = appeal=20 about an asserted failure of presentment.  See Landscape = Design=20 & Constr., Inc. v. Harold Thomas Excavating, Inc., 604 = S.W.2d 374,=20 378 (Tex. App.CDallas=20 1980, writ ref=3Dd n.r.e.)=20 (rejecting defendant=3Ds argument=20 there was no evidence of presentment because it was not raised in = the=20 trial court); Trout v. Patterson, No. B14-93-00149-CV, 1994 = WL=20 151442, at *6 (Tex. App.CHouston=20 [14th Dist.] April 28, 1994, writ denied) (same). =20

The=20 presentment requirement was satisfied on this record.  At = trial,=20 Shami offered into evidence two e-mails from Palchick dated after = the June=20 7, 2004 termination.  In the first e-mail, dated June 9, = 2004,=20 Palchick demanded payment for commissions on outstanding orders, = for=20 expenses incurred, and for commissions owed.  Palchick = offered to=20 Adiscuss=20 your intentions through my attorney on a scheduled = date.@  In=20 the second e-mail, dated June 10, 2004, Palchick again demanded = payment=20 for expenses, compensation for late-paid commissions, and = compensation for=20 underpaid commission checks.  Palchick asserted that Shami = had=20 refused to sign commission checks presented to him by = Shami=3Ds=20 bookkeeper.  In this June 10, 2004 e-mail, Palchick asked = Shami to=20 meet with Palchick and Palchick=3Ds attorney=20 to settle all outstanding accounts. The June 10, 2004 e-mail also=20 references Aincoming=20 orders.@ =20 Palchick testified during trial about repeated oral demands he = made=20 without success upon Shami for payment of commissions due under = the=20 parties=3D = oral=20 contract.  Shami=3Ds=20 bookkeeper, Beverley Diaz, confirmed that Palchick had argued with = Shami=20 about the amount on each occasion when the commission check was = less than=20 five percent and requested additional payment.   These = requests=20 were denied.

This=20 correspondence and series of oral demands satisfies the = presentment=20 requirement.  See Huff v. Fid. Union Life Ins. Co., = 158 Tex.=20 433, 312 S.W.2d 493, 500 (1958) (sufficient presentment was made = where=20 Aoral=20 demands and the letter asserting plaintiff=3Ds claims=20 were made known to the defendant@).

With=20 respect to excessiveness, Shami cannot now contest = attorney=3Ds fees on=20 grounds that the contract damages Palchick recovered were less = than those=20 requested.  In order to preserve an excessiveness challenge, = Shami=20 was required to (1) plead excessive demand as an affirmative = defense to=20 the claim for attorney=3Ds fees;=20 and (2) request and obtain findings of fact regarding the = essential=20 elements of excessive demand.   See Kurtz, 158 = S.W.3d at=20 21 (excessive demand is affirmative defense that must be pleaded); = Tuthill, 614 S.W.2d at 212 (excessive demand is affirmative = defense=20 that must be pleaded, and the party asserting excessive demand = must=20 request and obtain findings of fact on the essential elements of = excessive=20 demand); Sanchez-O=3DBrien Oil & Gas = Corp. v.=20 Austin Res. Corp., No. = 14-96-00240-CV, 1998 WL=20 322686, at *3 n.3 (Tex. App.CHouston [14th Dist.] = June 18,=20 1998, pet. denied) (a party must plead excessive demand and then = establish=20 that the opposing party acted in bad faith or unreasonably).  = Shami=20 did not plead excessive demand as an affirmative defense in his = live trial=20 pleadings, and he obtained no findings regarding unreasonableness = or bad=20 faith.

Shami=3Ds second issue is=20 overruled.

Attorney=3Ds Fees Under the = Lanham=20 Act

Shami=3Ds third issue = contends that the=20 trial court erred in denying Shami recovery of = attorney=3Ds fees under the = Lanham Act, 15=20 U.S.C. '1117(a), because this = case=20 constitutes an Aextraordinary@ case.  Shami = did not=20 plead any claims under the Lanham Act, nor were any Lanham Act = claims=20 tried by consent.[8] =20 See Tex. R. Civ. P. Rule 67; Latch v. Gratty, Inc., = 107=20 S.W.3d 543, 546 (Tex. 2003) (a trial court=3Ds judgment may only = be upheld=20 if the cause of action was pleaded or if the issue was tried by = consent);=20 Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 n.2 = (Tex. 1997)=20 (a cause of action not alleged in the pleadings and not tried by = consent=20 is waived).  Because Shami did not assert a claim under the = Lanham=20 Act, he cannot invoke that statute as a basis for recovering=20 attorney=3Ds fees.

Shami=3Ds third issue is=20 overruled.

Conclusion=20

The trial = court=3Ds judgment is=20 affirmed.

 

 

/s/       =20 William J. Boyce

Justice

 

 

Judgment rendered and = Memorandum Opinion filed March 18, 2008.

Panel consists of = Chief Justice=20 Hedges, Justices Anderson and Boyce.


[1]  This is the word used by the = trial court in=20 its Finding of Fact No. 11 dated December 19, = 2006.

[2]  Although Shami pleaded both = trademark=20 infringement and unfair competition, these claims are premised on = the same=20 underlying contention B that Palchick improperly used trade = names=20 identical or similar to those used by Shami. The contours of a = trademark=20 infringement action under Texas common law track those of a = federal=20 trademark infringement action.  See Zapata Corp. v. Zapata = Trading=20 Int=3Dl, Inc.,=20 841 S.W.2d 45, 47 (Tex. App.CHouston [14th Dist.] 1992, no writ). = Shami sought=20 both damages and injunctive relief in his = counterclaim.

[3]  A diversion corporation does not=20 manufacture products.  Rather, it buys products on the market = and=20 distributes them to retail outlets.

[4]  Shami points to = Plaintiff=3Ds Exhibit 31 as evidence of customer=20 confusion.  This exhibit is an e-mail from Palchick to a = former=20 Beauty Elite customer.  In the e-mail, Palchick tells the = customer=20 that Palchick no longer is affiliated with Beauty Elite and offers = to do=20 business with the customer as a newly formed entity, Beauty = Signature=20 Group LLC.  This exhibit is no evidence of customer confusion = regarding which entity Palchick represented.  When pressed on = cross-examination, Shami also named two individuals at two = companies who=20 he contended had become confused by Palchick=3Ds use of the names. These individuals = did not=20 testify and were not deposed.

[5]  Palchick sought recovery for = deficiencies=20 in commission payments on past sales and for commissions on future = sales=20 that had not been delivered at the time of termination.  The=20 commissions on past sales were valued between $6,000 and nearly=20 $35,000.  The commissions on future sales were valued at = nearly=20 $150,000.  Shami combines these amounts and contends that = Palchick=20 sought more than $180,000 in damages.  Shami does not = challenge the=20 computation of the attorney=3Ds fees themselves.

[6]  Shami conceded in the trial court = that=20 Palchick had sought payment of past-due commissions.  In a = June 10,=20 2004 e-mail, Palchick requested payment of commissions on pending = sales=20 that had not been consummated.

[7]  Palchick filed his third amended = petition=20 during trial, and thus did not meet the deadline set forth in = Texas Rule=20 of Civil Procedure 63.  Leave to file a late amended pleading = is=20 presumed when there is evidence the petition was before the trial = court,=20 and when there is (1) no indication that the trial court refused = leave to=20 file; and (2) no motion to strike the amended petition due to = surprise or=20 prejudice. Goswami v. Metro. Sav. & Loan = Ass=3Dn, 751=20 S.W.2d 487, 490 (Tex. 1988).  Shami did not object to the = petition=20 when it was brought before the trial court, and the Findings of = Fact and=20 Conclusions of Law affirmatively state they are based upon the = pleadings=20 before the trial court.  See Wilson v. Korthauer, 21 = S.W.3d=20 573, 578 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) = (when a=20 final judgment states that the judgment is based upon the = pleadings filed=20 therein, this establishes that the trial court did not refuse to = consider=20 the amended petition); Dentler v. Perry, No. = 04-02-00034-CV, 2002=20 WL 31557302, at *4 (Tex. App.CSan Antonio Nov. 20, 2002, no pet.) = (even when the=20 final judgment does not affirmatively state that all pleadings = were=20 considered, in the absence of evidence to the contrary, there is a = presumption the trial court considered the late-filed amended=20 pleading).  Shami did not move to strike the third amended = petition.=20 Therefore, we conclude that leave was granted to file = Palchick=3Ds third amended petition, and that it is = the=20 operative pleading.

[8]  Neither the counterclaim of = PetSilk Inc.=20 nor Beauty Elite Group Inc.=3Ds counterclaim cites the Lanham Act. No = claim=20 under the Lanham Act was tried by consent.  A claim is tried = by=20 consent when there is an understanding by the parties that the = issue is in=20 the lawsuit, and evidence is introduced at trial and not objected = to by=20 the other party.  See Frazier v. Havens, 102 S.W.3d = 406, 411=20 (Tex. App.CHouston [14th Dist.] 2003, no = pet.) =20 (AA party=3Ds unpleaded issue = may be=20 deemed tried by consent when evidence on the issue is developed = under=20 circumstances indicating both parties understood the issue was in = the=20 case, and the other party fails to make an appropriate=20 complaint@).  Trial by consent = generally=20 does not apply if evidence supporting the unpleaded issue is = relevant to=20 other issues raised in the pleadings.  Sage St. Assoc. v.=20 Northdale Constr. Co., 863 S.W.2d=20 438, 446 (Tex. 1993). This record does = not=20 indicate an understanding that a Lanham Act claim was being tried = because=20 evidence regarding similarity of marks was relevant to = Shami=3Ds common law=20 claims.

 

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