IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50748

AMIGO BROADCASTING, LP

Plaintiff–Appellant

v.

SPANISH BROADCASTING SYSTEM, INC.; RAUL BERNAL; JOAQUIN

GARZA

Defendants–Appellees

Appeal from the United States District Court 

for the Western District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This case stems from the termination of an employment relationship

between Appellant Amigo Broadcasting, LP (“Amigo”) and Appellees Joaquin

Garza (“Garza”) and Raul Bernal (“Bernal”), and Garza and Bernal’s decision to

enter into a new employment relationship with Appellee Spanish Broadcasting

System, Inc. (“SBS”). Amigo seeks a reversal of the district court’s grant of

judgment as a matter of law in favor of Appellees. Amigo contends that the

district court erred in its ruling by finding that: (1) Amigo failed to produce

legally sufficient evidence that Garza and Bernal breached their employment

agreements with Amigo; (2) Amigo failed to produce legally sufficient evidence

that SBS tortiously interfered with Amigo’s employment agreements with Garza

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 2008

Charles R. Fulbruge III

Clerk
No. 06-50748

2

and Bernal; and (3) Amigo withdrew its Lanham Act and

misappropriation/unfair competition claims during the hearing on Appellees’

motions for judgment as a matter of law. For the following reasons, we AFFIRM

in part and REVERSE and REMAND in part.

I. BACKGROUND

In the early 1990s, Garza created the Spanish-language radio show “El

Chulo y La Bola” (“the Show” or “the El Chulo Show”). Garza created and plays

the character “El Chulo,” and Bernal plays a variety of other fictional characters.

In April 2002, Amigo executed three-year employment agreements (the

“Employment Agreements”) with Garza and Bernal, whereby Garza and Bernal

agreed to broadcast the Show on Amigo’s Spanish-language radio station,

KHHL, in Austin, Texas. Amigo aggressively promoted the Show, and,

according to Amigo, it soon became “very successful and consistently achieved

high revenues and ratings.” 

Additionally, the Show was very successful at stations where it was being

syndicated. In order to increase syndication, Amigo contracted with Latin

Entertainment Network (“LEN”) to syndicate the Show for a period of three

years. Tony Hernandez (“Hernandez”) was the CEO of LEN. In May or June of

2003, Amigo terminated its relationship with LEN and Hernandez, and it took

over all syndication of the Show. 

Meanwhile, according to SBS, Hernandez was attempting to find a new

radio group to do business with. Between February and August 2003, he sent

numerous e-mails and letters to SBS, making various business proposals,

including one to broadcastthe Show from Los Angeles. Raul Alarcon (“Alarcon”),

President and Chairman of the Board of SBS, responded to Hernandez in late

October/early November of 2003. Thereafter, on November 12, Alarcon,

Hernandez, Garza, and Bernal metin SBS’s office in Miami, Florida (the “Miami

meeting”). 
No. 06-50748

1 Appellees contend that Garza and Bernal did not perform the Show on November 24

and 25. There is sufficient evidence in the record, however, establishing that they did not

perform the Show on November 25 and 26.

3

On or before November 12, Amigo’s then-president Chuck Brooks

(“Brooks”) learned about the Miami meeting. In response, Jim Anderson

(“Anderson”), Amigo’s CEO, sent SBS a letter on November 12 asking SBS not

to interfere with Garza’s and Bernal’s Employment Agreements with Amigo.

SBS did not respond to this letter.

On November 18, SBS’s in-house attorney, James Cueva (“Cueva”), began

drafting standard employment agreements for Garza and Bernal. Cueva also

requested copies of Garza’s and Bernal’s Employment Agreements with Amigo

“to see whether the Agreements really existed and, if so, whether they prevented

Garza and Bernal from leaving Amigo to work for SBS.” According to SBS, it

“concluded that Garza and Bernal could resign from Amigo and that the

non-compete clause would not prohibit them from going on-air for SBS in Los

Angeles or any other SBS market because SBS and Amigo did not compete in the

same markets.” 

On November 24, SBS sent employment agreements to Garza and Bernal

(the “SBS Employment Agreements”), offering them substantial increases in

salaries and bonuses. Garza and Bernal did not perform the Show for Amigo on

November 25 and 26.1 According to Amigo, the day after Garza and Bernal

failed to report to work, Bernal informed Amigo that he and Garza had accepted

positions with SBS and refused to perform the El Chulo Show. When Brooks

contacted Garza, Garza allegedly told Brooks that they did not need him

anymore, said “Fuck you,” and hung up the phone. On December 12, Amigo

terminated Garza and Bernal effective November 26 and 27, respectively, for

“job abandonment.” On December 19, Garza and Bernal signed the SBS
No. 06-50748

4

Employment Agreements and began broadcasting the Show for SBS in Los

Angeles. 

Based on the foregoing, Amigo sued Garza, Bernal, SBS, LEN, and

Hernandez for breach of contract, misappropriation/unfair competition,

conversion, breach of fiduciary duty, constructive trust, invasion of privacy by

misappropriation, violation of the Lanham Act, and tortious interference with

a contract. LEN and Hernandez ultimately settled with Amigo. A jury trial

began on May 2, 2006. At the close of Amigo’s evidence, Appellees filed motions

for judgment as a matter of law, which the district court granted. Amigo now

appeals, asserting thatthe district court erred by: (1) dismissing Amigo’s breach

of contract claims against Garza and Bernal; (2) dismissing Amigo’s tortious

interference claim against SBS; and (3) finding that Amigo withdrew its Lanham

Act and misappropriation/unfair competition claims. 

II. STANDARD OF REVIEW

We review a district court’s grant of judgment as a matter of law de novo,

applying the same legal standard as the district court. Price v. Marathon Cheese

Corp., 119 F.3d 330, 333 (5th Cir. 1997). Judgment as a matter of law is

appropriate after “a party has been fully heard on an issue during a jury trial

and the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). “In

evaluating such a motion, the court must consider all of the evidence in the light

most favorable to the nonmovant, drawing all factual inferences in favor of the

non-moving party, and leaving credibility determinations, the weighing of

evidence, and the drawing of legitimate inferences from the facts to the jury.”

Price, 119 F.3d at 333. Although the Court “should review the record as a whole,

it must disregard all evidence favorable to the moving party that the jury is not

required to believe”–that is, the Court “should give credence to the evidence

favoring the nonmovant as well as that evidence supporting the moving party
No. 06-50748

5

that is uncontradicted and unimpeached, at least to the extent that that

evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 151 (2000) (internal quotations omitted).

III. DISCUSSION

A. Amigo’s Breach Of Contract Claims

Amigo asserts that Garza and Bernal breached their Employment

Agreements by: (1) resigning prior to the expiration of the “Initial Term” and (2)

allowing SBS to use Garza’s and Bernal’s “names and/or likenesses”for business

purposes without Amigo’s consent. It is undisputed by the parties that Texas

law governs Amigo’s breach of contract claims. Under Texas law, the court must

submit Amigo’s breach of contract claims to the jury if Amigo presented legally

sufficient evidence of: “1) the existence of a valid contract; 2) performance or

tendered performance by the plaintiff; 3) breach ofthe contract by the defendant;

and 4) damages to the plaintiff resulting from the breach.” Lewis v. Bank of Am.

NA, 343 F.3d 540, 544-45 (5th Cir. 2003). It is undisputed for the purposes of

this appeal that Amigo presented sufficient evidence to establish elements one

and two. 

1. Garza And Bernal’s Resignation

a. Sufficiency of the Evidence of Breach of Contract

Amigo argues that the district court incorrectly interpreted the

Employment Agreements to give Garza and Bernal the right to resign at any

time without breach. Under Texas law, “[d]etermining whether a contract is

unambiguous and interpreting an unambiguous contract are questions of law.”

Cedyco Corp. v. PetroQuest Energy, LLC, 497 F.3d 485, 490 (5th Cir. 2007)

(citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)). In

interpreting a written contract, “[t]he court’s primary concern is to enforce the

parties’ intent as contractually expressed, and an unambiguous contract will be

enforced as written.” Interstate Contracting Corp. v. City of Dallas, 407 F.3d
No. 06-50748

2 There is some dispute as to whether Garza and Bernal resigned or whether Amigo

terminated them for “job abandonment.” Although Amigo ultimately terminated Garza and

Bernal for “job abandonment” on December 12, 2003, Amigo produced sufficient evidence for

a jury to conclude that Garza and Bernal resigned well before then. Specifically, Brooks

testified that: Garza and Bernal did not perform the Show for Amigo beginning on November

25; the day after Garza and Bernal failed to report to work, Bernal informed Amigo that he

and Garza had accepted positions with SBS and refused to perform the El Chulo Show; and

when Brooks contacted Garza, Garza told Brooks that they did not need him anymore, said

“Fuck you,” and hung up the phone. 

3 Section 1.3 states:

This Agreement shall become effective as of the Effective Date and shall

continue in force and effect for a term of three years (the “Initial Term”)

subject to automatic extension of the term hereof for an additional one

year period from year to year thereafter (the “Extended Term”) unless

either party notifies the other party in writing at least 60 days prior to

the expiration ofthe InitialTerm or any Extended Term (collectively,the

“Term”) . . . , subject to earlier termination in accordance with the

provisions of Section 1.6 hereof.

It is undisputed that the Initial Term expired in April 2005, and Garza and Bernal stopped

working at Amigo in late November 2003.

6

708, 712 (5th Cir. 2005). To achieve this objective, “courts should examine and

consider the entire writing in an effort to harmonize and give effect to all of the

provisions of the contract so that none will be rendered meaningless.” Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983). An ambiguity in a contract “arises only

after the application of established rules of construction leaves an agreement

susceptible to more than one [reasonable] meaning.” DeWitt County Elec. Coop.,

Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999).

Amigo contends thatit produced sufficient evidence that Garza and Bernal

breached their Employment Agreements by resigning2 before the expiration of

the “Initial Term” set forth in Section 1.3.3 Under Section 1.3, the Initial Term

was “subject to earlier termination in accordance with the provisions of Section

1.6.” Section 1.6 sets forth the ways in which the Employment Agreements can
No. 06-50748

4 Section 1.6 states:

This Agreement and Employee’s employment hereunder may be terminated

without any breach of this Agreement at any time during the Term hereof only

by reason of:

(a) The death of Employee;

(b) The inability of Employee due to injury, illness or other incapacity (physical

or mental) to perform . . . ;

(c) For Cause which shall mean termination of Employee’s employment upon

written notice to Employee limited, however, to . . . [gross neglect, indictment

on felony charges, or disclosure of Trade Secrets]; or

(d) Upon 30 days written notice to Employee at any time after the expiration of

the Initial Term but not prior to the expiration of the Initial Term. 

7

be terminated without breach.4 Because Garza and Bernal’s termination of

employment did not fall under Section 1.6, Amigo contends that such

termination constituted sufficient evidence of a breach of the Employment

Agreements. 

Garza and Bernal, on the other hand, contend–and the district court

found–that they did not breach the Employment Agreements by resigning

because they were employees at will. Garza and Bernal argue that Section 1.7(a)

unambiguously acknowledges their right to resign. Section 1.7(a) of the

Employment Agreements states in part:

In the event Employee’s employment hereunder is terminated

pursuant to the provisions of Section 1.6 hereof due to the death,

disability, for cause or the resignation of Employee, Employer shall

have no further obligation to Employee . . . [except to pay accrued

but unpaid amounts due].

(emphasis added). Garza and Bernal argue that the purported right to resign

in Section 1.7(a) is consistent with Section 1.6 because Section 1.6 does not limit

the ability of the Employee to resign, but rather only limits the Employer’s right

to terminate the Agreement.

Garza and Bernal’s argument, however, is unpersuasive. Under Texas

law, employment is “at will, terminable at any time by either party, with or

without cause, absent an express agreementto the contrary.” Fed. Express Corp.
No. 06-50748

5 Garza and Bernal argue that interpreting Section 1.6 to limit their right to resign

would be unreasonable because, according to this construction, they would be unable to resign

if “Amigo drastically expanded Garza’s and Bernal’s work requirements, lost its FCC license

and went off the air, filed for bankruptcy, or adopted an English-language programming

format.” This argument is unconvincing. First, Section 1.2 limits the duties of Garza and

Bernal to those that may “be reasonably assigned” to them, such that drastically expanded

work requirements and requiring Garza and Bernal to perform the show in English would

arguably not be “reasonably assigned” duties, constituting breach of the Employment

Agreements by Amigo. Second, unforeseen events–such as the loss of Amigo’s FCC license or

bankruptcy–rendering performance impracticable are excused as a matter of law. See

Tractebel Energy Mktg., Inc. v. E.I. Du Pont De Nemours & Co., 118 S.W.3d 60, 64-65 (Tex.

App. 2003).

6 Although only the employer can terminate the employment relationship pursuant to

some subsections of Section 1.6, both the employer and employee can terminate the

employment relationship under Section 1.6(b), which deals with employee disability.

8

v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993). For the reasons stated by

Amigo, the Employment Agreements constitute “express agreement[s] to the

contrary.” 

The plain, unambiguous language of Section 1.6 limits the ways in which

Garza’s and Bernal’s employment “may be terminated without any breach,” and

there is simply nothing to substantiate Garza and Bernal’s claim that Section

1.6 addresses only Amigo’s right to terminate the Agreements.5 Garza and

Bernal’s argument relies on the idea that the language “may be terminated” in

Section 1.6 can only mean “may be terminated by Employer.” It is clear,

however, that the absence of the language “by Employer” indicates that Section

1.6 applies to termination by both Employer and Employee.6 Black’s Law

Dictionary 1511 (8th ed. 2004) defines “terminate” as “[t]o put an end to;to bring

to an end” and defines “termination of employment” as “[t]he complete severance

of an employer-employee relationship.” These definitions indicate that

termination of employment can be effectuated by either an employer or an

employee. Furthermore, and most importantly, where the contract intended to

refer to termination of employment by the employer, it unambiguously stated as

such. Section 1.7(a) states in a part not cited by Garza and Bernal: “In the event
No. 06-50748

7 Admittedly, it is somewhat unclear what “resignation” in Section 1.7(a) encompasses.

It is reasonable, however, that resignation refers to severance of the employment relationship

by the employee, regardless of whether such severance constitutes a breach ofthe Employment

Agreement. This interpretation, as opposed to the interpretation proffered by Garza and

Bernal, is consistent with the plain language of Sections 1.3 and 1.6. 

9

Employee’s employment hereunder is terminated by Employer . . . .” (emphasis

added). If the concept of termination necessarily implied termination by the

Employer, the use of the language “by Employer” in Section 1.7(a) would have

been wholly unnecessary. 

Furthermore, Section 1.7(a) does not create or acknowledge a right for

Garza and Bernal to resign from Amigo without breaching the Employment

Agreements; rather, the purpose of Section 1.7(a) is to determine what

compensation Amigo would owe Garza and Bernal upon termination of the

employment relationship.7 Quite simply, reading Section 1.7 to create or

acknowledge a right to resign without breach would contradict the plain

language of Section 1.6–if resigning or abandoning employment prior to the end

ofthe Initial Term was an option for termination of employment without breach,

such would have been set forth in Section 1.6. 

Finally, the term of the agreement is only “subject to earlier termination

in accordance with the provisions of Section 1.6 hereof.” If the term were subject

to earlier termination because of employee resignation, Section 1.3 or 1.6 would

have undoubtedly stated as such. 

Thus, interpreting the Employment Agreements as limiting Garza’s and

Bernal’s right to terminate the agreement at will best gives effect to “the entire

writing” and best harmonizes “all the provisions of the contract.” Coker, 650

S.W.2d at 393. The district court, therefore, erred by interpreting the

Employment Agreements to the contrary, and Amigo produced sufficient

evidence that Garza and Bernal breached their Employment Agreements. 

b. Sufficiency of the Evidence of Damages
No. 06-50748

8

In its opening brief, Amigo seems to assertthat SBS’s unjust enrichment could be used

as a measure of damages for Garza’s and Bernal’s alleged breaches of contract. However, in

its reply brief, Amigo makes clear that its evidence of SBS’s profits is for its tortious

interference claim, at least in the event Amigo cannot sufficiently prove its lost profits. See

Sandare Chem. Co. v. WAKO Int’l, Inc., 820 S.W.2d 21, 24 (Tex. App. 1991) (“[I]n a case of

tortious interference with contractual relations, evidence of the defendant’s profits may, when

the plaintiff cannot show with certainty the profits it would have realized in the absence of the

interference, constitute evidence of the plaintiff’s lost profits.”). 

10

Amigo asserts thatit provided sufficient evidence that Garza and Bernal’s

resignation proximately caused it substantial damages. Specifically, Amigo

contends that it produced sufficient evidence of: (1) $721,000 in lost profits and

(2) $250,000 in lost investment that Amigo spent to advertise the Show.8 Garza

and Bernal, however, contend that Amigo presented insufficient evidence of both

the fact and amount of damages.

i. Lost profits

Under Texas law, the measure of breach-of-contract damages is “just

compensation for the loss or damage actually sustained.” Stewart v. Basey, 245

S.W.2d 484, 486 (Tex. 1952). “A proper measure of damages in a breach of

contract case is the loss of contractual profit.” Interceramic, Inc. v. S. Orient

R.R. Co., 999 S.W.2d 920, 928 (Tex. App. 1999). The ability to recover lost

profits “does not require that the loss be susceptible to exact calculation.”

Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam).

The injured party must, however, establish the amount ofthe loss “by competent

evidence with reasonable certainty.” Id. Quite simply, lost profit damages “may

not be based on evidence that is speculative, uncertain, contingent, or

hypothetical.” Blase Indus. Corp. v. Anorad Corp., 442 F.3d 235, 238 (5th Cir.

2006). “At a minimum, opinions or estimates of lost profits must be based on

objective facts, figures, or data from which the amount of lost profits may be

ascertained.” Szczepanik, 883 S.W.2d at 649. However, “[w]hile some

uncertainty as to the amount of damages is permissible, uncertainty as to the
No. 06-50748

9 Brooks testified that even at the end of 2004, the ratings for the replacement show

were only “probably 80 to 85 percent of . . . the El Chulo program.” Amigo replaced the El

Chulo Show with its highly rated afternoon show, which forced Amigo to then find a new

afternoon host. Essentially, according to Brooks, “we had to switch all of our hosts around

when [Garza] left,” resulting in “a completely different radio station that had to be built.” 

10 Brooks stated: “That advertising went away because El Chulo, [Garza], was doing

most of the commercials live.”

11

fact of damages will defeat recovery.” Blase Indus. Corp., 442 F.3d at 238

(emphasis added).

Having reviewed the record, we find that Amigo presented sufficient

evidence of the fact of damages. Brooks, Amigo’s then-president, testified at

trial: the El Chulo Show was “wildly successful . . . in terms of ratings and

revenues”; advertisers and sellers of advertising use Arbitron ratings to

determine the cost of advertising; KHHL received more advertising, charged

higher advertising rates, and consequently generated more revenue as a result

of the high Arbitron ratings from the El Chulo Show; the show Amigo used to

replace the El Chulo Show after its departure was not nearly as successful as the

El Chulo Show until the end of 2004;9the winter ratings of KHHL for 2004

reflected the loss of the Show and consequently dropped “from around 3.9 or a

four to a 1.4”; and this drop in ratings caused revenues to “drop[] like a rock.”

Specifically, Brooks testified that Amigo’s syndicated advertising revenue

decreased from around $350,000 in 2003 to $11,000 in 2004 and testified that

this decrease was directly due to the loss of the Show.10 Furthermore, Amigo’s

damages expert, Robert Rea, testified that “ratings equal revenue” and that a

significant drop in ratings–such as the one sustained by Amigo after the loss of

the Show–will inevitably “create a very, very large decrease in revenue.”

Garza and Bernal, however, assert that Amigo did not produce sufficient

evidence of the fact of damages because: (1) four months after the loss of the

Show–in April and May 2004–KHHL had the two most profitable months in its
No. 06-50748

11 Brooks also testified that April and May are “good months for Spanish radio because

of Cinco de Mayo, and advertisers really put a lot of emphasis on–on Cinco de Mayo.”

12 Brooks did admit on cross-examination that Arbitron provides trends of ratings to

radio stations on a monthly basis and that advertising agencies sometimes get the monthly

trends. Although this implies that Amigo’s advertisers should have known about KHHL’s

decreasing ratings before April 2004 and Amigo’s revenues should have decreased before June

2004, Brooks testified that the monthly trends are not “what the [radio stations] sell off of or

what the advertisers buy off of”; rather, advertisers “buy off of a complete rating period.” 

12

history; (2) the decrease in revenue Amigo attributes to the loss of the Show did

not actually begin until June 2004–six months after the loss of the Show; and (3)

the decrease in revenue occurred “around the same time that Amigo got a new

station manager, moved its tower, and announced it was going to sell its

station.” Brooks’s testimony, however, explains why high profits in April and

May 2004 and a decrease in revenue beginning in June 2004 are consistent with

the loss of the Show in late November 2003. Brooks testified that: the high fall

2003 ratings were the result of the success of the El Chulo Show and were

released in January 2004;the low 2004 winter ratings were the result of the loss

of the Show and were not released until April 2004; Amigo used the high fall

2003 ratings to sell advertising through May 2004 (before the winter ratings

were released);11 and had the Show remained at KHHL, the profits from April

and May 2004 would have continued.12

Garza and Bernal’s third argument regarding a new station manager, a

tower move, and Amigo’s announcement that it intended to sell KHHL is also

unpersuasive. First, Garza and Bernal fail to explain how any of these events

negatively impacted revenues at KHHL. Second, with respect to the tower move,

Brooks testified that the tower move did not cause any loss of profit, and Rea

testified that the tower move was a neutral issue. Finally, Garza and Bernal’s

argument is essentially a claim that Amigo did not produce sufficient evidence

thatthe loss ofthe Show caused the decrease in revenue beginning in June 2004.

To prove causation, Amigo need not “negative entirely the possibility that
No. 06-50748

13

[Garza’s and Bernal’s] conduct was not a cause [of the revenue loss]”; rather, “it

is enough to introduce evidence from which reasonable persons may conclude

that the [loss of revenue] was caused by [Garza and Bernal’s departure].”

Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 460 (Tex. 1992). Viewed in the

light most favorable to Amigo, Brooks’s testimony that the decrease in ratings

after the departure of the El Chulo Show caused significant decrease in

advertising revenues is certainly sufficient–especially given that this causal

claim is “inherently plausible.” See Univ. Computing Co. v. Mgt. Sci. Am., Inc.,

810 F.2d 1395, 1401 (5th Cir. 1987) (“If a causal mechanism is inherently

plausible–if it comports with customary experience–we can make the inference

(that the mechanism in fact caused the harm) on less evidence than if the

mechanism is less plausible.”).

We also find that Amigo produced sufficient evidence of the amount of

damages. Amigo’s damages expert, Rea, testified that: he arrived at an estimate

of $721,000 in lost profit damages by using the yardstick method; the yardstick

method was the most appropriate method for a growing business; he considered

the historical financial data for KHHL and ABS Services (which syndicated the

El Chulo Show); determined that 16 percent was the appropriate growth rate for

the revenue of these entities; and calculated an estimate of lost profit based on

these numbers and projections. Such an estimate was not merely speculative or

conjectural but was “based on objective facts, figures, or data.” Szczepanik, 883

S.W.2d at 649. 

Garza and Bernal, however, contend that Rea’s $721,000 estimate was not

reasonably certain because: (1) Rea’s 16 percent growth projection was purely

speculative and (2) Rea’s estimate was based on the revenues of KHHL and ABS

Services as a whole, not the revenues of the El Chulo Show, and Rea simply

assumed that any loss in revenues for these entities would have been

attributable to the loss of the Show. First, with respect to Rea’s 16 percent
No. 06-50748

13 Specifically, Rea testified that ABS Services was “simply terminated” after the El

Chulo Show left, and Brooks testified that after the El Chulo Show left, KHHL moved its

afternoon show to the morning and had to find a new afternoon show, effectively making

KHHL “a completely different radio station.” Thus, basing damages estimates on the losses

of KHHL and ABS Services was not unreasonable under the circumstances.

14

projected growth estimate, Rea testified that he considered the growth of the

Spanish broadcasting industry, the Spanish radio industry, and public

companies in the Spanish radio industry. Second, with respect to basing his

estimates on the revenues of KHHL and ABS Services, Rea testified that this

method was appropriate under the circumstances.13 Furthermore, Garza and

Bernal’s argument constitutes a criticism of the bases and sources of Rea’s

opinion, Rea’s testimony already withstood a Daubert challenge, and Garza and

Bernal’s renewed criticism merely “affect[s] the weight to be assigned to that

opinion . . . and should be left for the jury’s consideration.” Viterbo v. Dow Chem.

Co., 826 F.2d 420, 422 (5th Cir. 1987) (emphasis added). 

Finally, Garza and Bernal argue that Amigo may not recover lost profit

damages because KHHL was a “start-up company” that was “less than 20

months into its business plan,” and, as a matter of Texas law, “[p]rofits which

are largely speculative, as from an activity dependent on uncertain or changing

market conditions, or on chancy business opportunities, or on . . . entry into

unknown or unviable markets, or on the success of a new and unproven

enterprise, cannot be recovered.” Tex. Instruments, Inc. v. Teletron Energy

Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994). However, “[w]hen there are firm[]

reasons to expect a business to yield a profit, the enterprise is not prohibited

from recovering merely because it is new.” Id. at 280. Given Brooks’s and

Anderson’s statements about the success of KHHL and the El Chulo Show, and

given that Amigo’s financial statements show that KHHL consistently generated

profits beginning in July 2002, there were certainly “firm[] reasons to expect

[KHHL and the El Chulo Show] to yield a profit.” Id.
No. 06-50748

14 It can be argued that one Texas case suggests that an award of damages for breach

of contract may include both reliance and expectation damages. After noting that damages for

breach of contract traditionally protect three interests: restitution, reliance, and expectation,

the court in Qaddura v. Indo-European Foods, Inc., postulated that "[i]n an appropriate case,

just compensation may require an award protecting one or more of these interests." 141

S.W.3d 882, 888 (Tex. App. 2004) (emphasis added). To the extent this statement suggests an

award of bothreliance andexpectationdamages in"appropriate case[s],"we recognize thatthis

is not an appropriate case for such an award. The proper calculation of Amigo’s measure of

expectation damages, its lost profit, necessarily includes its reliance measure, the cost borne

by Amigo in promoting the El Chulo Show. Therefore, recovery of both is not necessary to

ensure just compensation in this case.

15 Specifically, Anderson testified:

15

ii. Lost investment

Amigo also asserts that it produced sufficient evidence of its loss of

$250,000, which constitutes the lost investment that Amigo spent to advertise

and promote the El Chulo Show. With respect to such investment, Amigo is

seeking reliance damages which “reimburse one for expenditures made towards

the execution of the contract in order to restore the status quo before the

contract.” Hart v. Moore, 952 S.W.2d 90, 97 (Tex. App. 1997). Although not

stated by Amigo’s briefs, Amigo’s evidence of lost investment presents an

alternative theory of recovery–that is, Amigo can ultimately recover for its lost

profits or its lost investment but not both. See Restatement (Second) of

Contracts § 349 (1981) (“As an alternative to [expectation damages], the injured

party has a right to damages based on his reliance interest . . . .”).14

Amigo presented sufficient evidence of its reliance damages. Brooks

testified that Amigo spent approximately $250,000 in advertising the El Chulo

Show. Further, Brooks’s December 10, 2003, e-mail to Garza stated that Amigo’s

investment in the Show “has been wasted since you [Garza] elected, with no

warning, to stop showing up for work.” Finally, Anderson testified that building

an audience for a radio show requires a significant investment, and this

investment is “lost” if the show and its performers can simply leave at will.15
No. 06-50748

It’s very difficult to develop an audience and we often spend lots of money trying

to develop an audience for a particular show. So if that show could move across

the street to–to a competing radio station, then all of that investment is just

lost. So there’s–there’s sort of a trade off. We–in the industry, you tend to

promise talent and guarantee employment for a period of years in exchange for

staying for a period of years for not competing, not walking across the street to

and kind of taking all of that investment with them.

16

This evidence is sufficient for a reasonable jury to conclude that Amigo’s

promotional investment in the Show was approximately $250,000, was spent in

reliance on Garza and Bernal performing the Show for Amigo during the term

of their contractual agreements, and that promotional investment was in effect

lost because of Garza and Bernal’s early departure. 

Garza and Bernal, however, argue that Amigo’s evidence was legally

insufficient because Amigo did not present evidence thatit was unable to recoup

its promotional investment. Specifically, Garza and Bernal assert that the

evidence shows thatthe El Chulo Show generated profits substantially in excess

of $250,000, such that Amigo recouped its advertising investment. First, as

explained above, Amigo introduced some evidence–albeit somewhat

conclusory–that the promotional investment was “wasted” or “lost” as a result

of Garza and Bernal’s early departure. Second, it is the burden of Garza and

Bernal, not Amigo, to show that Amigo received a benefit from its expenditures

that reduce or offset the amount of reliance damages to which Amigo claims it

is entitled. 22 Am. Jur. 2d Damages § 51 (2003) (“Recovery of reliance damages

may be reduced to the extent that a breaching party can prove that a ‘deduction’

is appropriate for any benefit that the claimant received for salvage or

otherwise.”) (emphasis added) (citing DPJ Co. Ltd. P’ship v. FDIC, 30 F.3d 247,

250 (1st Cir. 1994)); cf. Restatement (Second) of Contracts § 349 (“[T]he injured

party has a right to damages based on his reliance interest . . . less any loss that

the party in breach can prove with reasonable certainty the injured party would

have suffered had the contract been performed.”) (emphasis added). Even if it
No. 06-50748

16 According to Amigo, the License is “nonexclusive” because “it covers only commercial

or business purposes, not personal or charitable uses.”

17 Section 1.8(b) establishes that a covenant not to compete with Amigo shall last for

“12 months following Employee’s termination of employment with Employer.” 

17

is undisputed that the El Chulo Show generated profits greater than $250,000,

there is no evidence regarding what portion of those profits are attributable to

Amigo’s promotional investment. Thus, Amigo produced sufficient evidence of

its reliance damages, and Garza and Bernal can introduce evidence at trial

establishing that Amigo’s promotional investment in the El Chulo Show

generated substantial profits that reduce or completely offsetthe amount Amigo

seeks in reliance. 

In conclusion, Amigo presented sufficient evidence that Garza and Bernal

breached their Employment Agreements by resigning in November 2003.

Further, Amigo produced sufficient evidence to allow it to pursue its lost profits

or, in the alternative, its lostinvestmentto compensate itfor Garza and Bernal’s

breach. Thus, with respect to this claim for breach of contract, we REVERSE the

judgment of the district court and REMAND for further proceedings consistent

with this opinion.

2. The License Agreement 

a. Sufficiency of the Evidence of Breach of the License

Amigo argues that Garza and Bernal also breached their Employment

Agreements by allowing SBS to use their names and likenesses for commercial

purposes without Amigo’s consent. Amigo contends that this was a breach of the

License set forth in Section 1.1, which states:

Employee hereby grants Employer a nonexclusive16royalty free

license to use Employee’s name and/or likeness to promote [KHHL]

and its programming, including any program hosted by Employee

or syndicated by Employer, during the term of this Agreement and

any period thereafter during which Employee is prohibited from

competing with Employer as set forth in Section 1.8(b) hereof.17
No. 06-50748

18

During [this period], employee shall not permit any other party to

use Employee’s name and/or likeness for commercial or other

business purposes without first obtaining the written consent of

Employer . . . .

In response, Garza and Bernal contend–and the district court found–that

the License in Section 1.1 was only enforceable during Garza’s and Bernal’s

employment at Amigo. Specifically, Garza and Bernal argue that, because

Section 1.1 grants Amigo a licence that remains in effect for 12 months after

termination of the Employment Agreements, it constitutes a restraint on trade

unrestricted in scope or geographic area and is unenforceable under Texas law.

Even if Garza and Bernal are correct that the License is unenforceable for the

12 months after the term of the Employment Agreements expires, the License

was still in effect under Section 1.1 “during the term ofthis Agreement,” and the

term of the Employment Agreements was at least three years–until April 2005.

Under Section 1.3, the term of the Employment Agreements could only be cut

short “in accordance with the provisions of Section 1.6.” Because we already

determined that Garza’s and Bernal’s resignations were not in accordance with

Section 1.6, their resignations did not cut the Initial Term–and accordingly the

term of the License–short. Furthermore, even if the License acts as a restraint

on trade during the term ofthe Employment Agreements, such a restraint is not

impermissible and does not violate public policy. 42 Am. Jur. 2d Injunctions §

130 (2003) (“Covenants not to accept employment with anyone but the employer

during the term of the contract are not opposed to public policy and have been

held to be valid.”) (emphasis added); cf. Mission Indep. School Dist. v. Diserens,

188 S.W.2d 568, 569-70 (Tex. 1945) (granting an injunction preventing a former

employee from performing services for another employer during the term of her
No. 06-50748

18 It seems clear that Garza and Bernal, as on-air radio talent, performed special,

unique, or extraordinary personal services for Amigo.

19

employment agreement where performance of such services constituted a breach

of contract and the employee’s services were special, unique, or extraordinary).18

Thus, the License was enforceable until at least April 2005, and it is

undisputed that SBS used Garza’s and Bernal’s radio names and likenesses for

business purposes without Amigo’s permission prior to April 2005. 

Garza and Bernal, however, further contend–and the district court

found–thatthe “names” referred to in theLicense are unambiguously their legal

names, not their radio names, and, thus, they were not in breach of the License

by allowing SBS to use their radio names. Amigo, on the other hand, argues

that the term “names” in Section 1.1 creates a latent ambiguity–as Garza and

Bernal had legal names and radio names–and this latent ambiguity precluded

the district court from granting judgment as a matter of law. 

Whether a contract is ambiguous is “a question of law for the court to

decide by looking at the contract as a whole in light of the circumstances present

when the contract was entered.” Coker, 650 S.W.2d at 394. A latent ambiguity

exists if “the meaning of language used in a written agreement becomes

uncertain when applied to the subject matter of the contract.” Loaiza v. Loaiza,

130 S.W.3d 894, 905 (Tex. App. 2004), cited in Dell Computer Corp. v. Rodriguez,

390 F.3d 377, 389 n.24 (5th Cir. 2004) (emphasis added). The latent ambiguity,

however, “must become evident when the contract is read in the context of the

surrounding circumstances, not after parol evidence of intent is admitted to

create an ambiguity.” Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d

517, 521 (Tex. 1995) (emphasis added). Thus, in determining whether a latent

ambiguity exists, courts may examine “surrounding circumstances” and “the

subject matter of the contract.” Loaiza, 130 S.W.3d at 905. 
No. 06-50748

19 Although the Employment Agreements only employ Garza and Bernal as “morning

show host[s]” and do not explicitly state that Garza and Bernal are to perform the “El Chulo

y La Bola” show, it is obvious from the surrounding circumstances that the subject matter of

the contract was the El Chulo Show–the only radio program Garza had ever hosted was the

El Chulo Show and, at the time ofthe contract, Garza and Bernal had already been performing

the El Chulo Show for Amigo since mid-2001. 

20 It is undisputed that Garza’s radio name is “El Chulo.” Although it is disputed that

Bernal had a radio name, Amigo presented sufficient evidence that Bernal’s radio name is “La

Bola.” Specifically, Hernandez testified (by deposition summary) that: Bernal’s radio name is

“La Bola”; that he did not even know Bernal’s real name; and Bernal chose the name “La Bola”

because it literally means “the ball,” which was a humorous reference to Bernal’s physical size.

20

Examining the “surrounding circumstances” and “the subject matter of the

contract,” the License in Section 1.1 creates a latent ambiguity. Although only

Garza’s and Bernal’s legal names were used in the text of the contract, the

Employment Agreements concerned the employment of two radio personalities

to perform their radio show entitled “El Chulo y La Bola,”

19 and the License

concerned the promotion of KHHL and its programming, including the Show.

Garza and Bernal have two sets of names–their legal names and their radio

names–and their radio names were the names used to promote the Show.20

Thus, when applying the word “name” in Section 1.1 to Garza and Bernal, it is

uncertain whether “name” refers to Garza’s and Bernal’s legal or radio name,

and a latent ambiguity exists. 

Because of this latent ambiguity and because SBS used Garza’s and

Bernal’s radio names and likenesses while the License was in effect, the district

court erred in determining that Amigo failed to produce sufficient evidence of

breach of the License. See Dell Computer Corp., 390 F.3d at 388-89 & n.25

(holding that where a latent ambiguity exists, interpretation of the contract

becomes a question of fact). 

b. Sufficiency of the Evidence of Damages

Although Amigo presented sufficient evidence that Garza and Bernal

breached the License, the district court was correct in dismissing this claim
No. 06-50748

21 Amigo lost the Show when Garza and Bernal stopped performing the Show in

November 2003; Garza and Bernal did not allegedly breach the License until well after that

time.

21

because Amigo failed to provide sufficient evidence that breach of the License

caused Amigo any damages. 

On appeal, Amigo asserts that its damages from Garza and Bernal’s

breach of the License are exactly the same as its damages from Garza and

Bernal’s untimely resignation–that is, lost profits and, in the alternative, lost

investment. These asserted damages, however, were caused solely by the loss

of the El Chulo Show, which resulted from Garza and Bernal’s resignation, not

from any subsequent breach of the License.21

Accordingly, Amigo cannot recover its asserted lost profits for breach of the

License because its alleged lost profits stem solely from the untimely loss of the

Show. Amigo does not assert that it lost any profits due to Garza and Bernal’s

subsequent breach of the License. For instance, Amigo does not assert that

Garza and Bernal’s breach of the License allowed SBS to compete with KHHL,

thereby further diminishing KHHL’s profits.

Furthermore, Amigo cannot recover its lostinvestmentin the Show on the

basis of the License because it did not produce any evidence that it made this

investment in reliance on the License agreement. Instead, Amigo’s

evidence–specifically, Anderson’s testimony quoted in footnote 15

supra–indicates that Amigo made its investment in the Show in reliance on the

three-year contract term and the covenant not to compete contained in the

Employment Agreements.

Thus, with respect to Amigo’s claim for breach ofthe License, we AFFIRM

the judgment of the district court.

B. Amigo’s Tortious Interference With Contract Claim
No. 06-50748

22

Amigo asserts that the district court erred in dismissing its tortious

interference with contract claim against SBS for lack of sufficient evidence. To

recover for tortious interference with contract, a plaintiff must prove: “(1) that

a contract subject to interference exists; (2) that the alleged act of interference

was willful and intentional; (3) that the willful and intentional act proximately

caused damage; and (4) that actual damage or loss occurred.” ACS Investors,

Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). 

On appeal, Amigo only complains that SBS tortiously interfered with the

Employment Agreements to the extent that SBS’s actions caused Garza and

Bernal to resign prior to the expiration of the Initial Term. As explained below,

Amigo produced sufficient evidence of its tortious interference claim.

1. Whether The Employment Agreements Were Subject To Interference

Because this tortious interference claim only complains about Garza and

Bernal’s untimely resignation, neither party disputes that the Employment

Agreements were subject to inference until Garza and Bernal breached them by

leaving Amigo. Amigo presented sufficient evidence that it knew of Garza and

Bernal’s intent to permanently cease performing the Show for Amigo and work

for SBS on the morning of November 26, 2003. Thus, for the purpose of this

appeal,the Employment Agreements were subject to interference until this time,

and any acts taken by SBS after this time cannot be considered in evaluating

Amigo’s tortious interference claim.

2. Whether SBS Committed Willful And Intentional Acts Of Interference

To show tortious interference, a plaintiff is not required to prove intent to

injure, but rather “only that the actor desires to cause the consequences of his

act, or that he believes that the consequences are substantially certain to result

from it.” Sw. Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex.

1992) (internal quotations omitted). Moreover, the interfering party must have

“actual knowledge of the contract or business relation in question, or knowledge
No. 06-50748

23

of facts and circumstances that would lead a reasonable person to believe in the

existence of the contract or business relationship.” Steinmetz & Assocs., Inc. v.

Crow, 700 S.W.2d 276, 277-78 (Tex. App. 1985). 

Amigo contends that it produced sufficient evidence that SBS “desired to

cause Bernal and Garza to quit working for Amigo to work for SBS, and that this

was substantially certain to happen given SBS’s actions targeted at Bernal and

Garza.” Specifically, Amigo points to: (1) the Miami meeting between SBS,

Hernandez, Garza, and Bernal and (2) SBS’s communications and preparation

of the SBS Employment Agreements after the Miami meeting. 

a. The Miami Meeting

First, Amigo produced sufficient evidence that Alarcon, SBS’s President

and Chairman ofthe Board, invited Hernandez, Garza, and Bernalto the Miami

meeting for the purpose of discussing hiring Garza and Bernal to broadcast and

syndicate the Show from Los Angeles for SBS. Specifically, Hernandez testified

(by deposition summary): in late October/early November 2003, Alarcon

contacted Hernandez in response to a proposal Hernandez had sent Alarcon

earlier in the year regarding SBS becoming an affiliate of the Show, and

Hernandez informed Alarcon that LEN was no longer syndicating the El Chulo

Show; after this conversation, Alarcon contacted Hernandez a second time, and

this time “Alarcon was looking for a new show in Los Angeles” and asked if

Hernandez “could walk him [Alarcon] through the process” of how SBS could

broadcast the El Chulo Show in Los Angeles at an SBS-owned station; Alarcon

then invited Hernandez “to visit his offices in Miami, Florida, and he

[Hernandez] was made aware that Joaquin Garza and Raul Bernal were going

to be present in that meeting as well”; and that the purpose of the meeting was

“that SBS was looking for a morning show for Los Angeles and they wanted to

understand how that show would fit in with their current business plan.”

Furthermore, Garza testified that he received a call from Alarcon in November
No. 06-50748

24

2003, during which Alarcon “asked for us to go to his office in [Miami], to go to

speak with him about the possibility of going back to Los Angeles.” Finally,

Brooks testified that when he confronted Garza about the Miami meeting shortly

after it occurred, Garza told him that “they had a meeting with Raul Alarcon,

and they [Garza and Bernal] were being offered a job [by SBS].” (emphasis

added).

Second, Amigo offered sufficient evidence that SBS paid–at the very

least–for the expenses Garza incurred for food and hotel in attending the Miami

meeting. Garza testified that “SBS paid for my hotel, for my food.”

Finally, Amigo offered sufficient evidence that–at the time of the Miami

meeting–SBS knew, or should have known, that Garza and Bernal were under

contract with Amigo. Hernandez testified that during his first phone

conversation with Alarcon in late October/early November 2003, he informed

Alarcon that Garza and Bernal were working for Amigo. Furthermore, Anderson

testified that it was common in the radio industry for on-air talent to have

employment contracts that bound the talent to a term of years. Even Cueva,

SBS’s in-house counsel, testified that radio stations have similar needs in

preventing on-air talent from leaving and competing with their former

employers. Viewed in the light most favorable to Amigo, SBS had actual

knowledge of a business relationship between Garza, Bernal, and Amigo, and,

because binding employment contracts were common in the radio industry for

on-air talent, SBS had “knowledge of facts and circumstances that would lead

a reasonable person to believe” in the existence of a contract between Garza,

Bernal, and Amigo. Crow, 700 S.W.2d at 277-78; see also Top Value Enter., Inc.,

v. Carlson Mktg. Group, Inc., 703 S.W.2d 806, 810 (Tex. App. 1986) (defendant

knew or should have known ofthe existence of a contract because it was common

knowledge in the industry that grocers operated under written license

agreements). 
No. 06-50748

22 SBS asserts that their actions regarding the Miami meeting could not constitute

intentional acts of interference because Hernandez was the driving force behind the Miami

meeting, the Miami meeting was only very preliminary, and SBS did not know that Garza and

Bernal were working for Amigo at the time of the Miami meeting. SBS’s assertions, however,

are based almost exclusively on the contradicted testimony of Alarcon, which this Court must

disregard in reviewing the sufficiency of Amigo’s evidence. See Reeves, 530 U.S. at 151. 

23 Amigo introduced sufficient evidence that Hernandez represented–and SBS

understood–that Hernandez had full authority to act on behalf of Garza and Bernal.

25

Given this evidence, a reasonable jury could conclude that SBS knew of

Garza’s and Bernal’s Employment Agreements with Amigo and nonetheless set

up the Miami meeting for the purpose of attracting Garza and Bernalto perform

the El Chulo Show for SBS. Thus, Amigo presented sufficient evidence that

SBS’s actions regarding the Miami meeting constituted willful and intentional

acts of interference.22

b. SBS’s Actions After the Miami Meeting

Amigo presented sufficient evidence that, after the Miami meeting, SBS

had actual knowledge of Garza’s and Bernal’s Employment Agreements with

Amigo and nonetheless continued to communicate with and negotiate to employ

Garza and Bernal while they were still employed at Amigo. 

When Brooks learned about the Miami meeting, he asked Anderson to

send SBS a letter asking SBS not to interfere with Garza’s and Bernal’s

Employment Agreements with Amigo, which Anderson did on November 12.

Thus, after November 12, it is undisputed that SBS definitively knew about

Garza’s and Bernal’s Employment Agreements with Amigo. 

Given SBS’s knowledge, Amigo presented sufficient evidence that on

November 18, SBS began to draft employment agreements for Garza and Bernal.

Plaintiff’s Exhibit 25 shows a string of e-mails between Hernandez, Cueva, and

Alarcon’s secretary, Ivette Davidson,23 which indicate that: Hernandez and SBS

were in the process of preparing the SBS Employment Agreements for Garza

and Bernal to work at SBS, and SBS requested Garza’s and Bernal’s
No. 06-50748

24 SBS contends that its conclusion that Garza’s and Bernal’s Employment Agreements

with Amigo permitted them to resign without breach establishes that SBS did not have the

required intent to interfere with the Employment Agreements. SBS’s assertion regarding its

conclusion was made by Cueva, however, and the jury would have been free to disbelieve and

disregard this testimony, especially given that: (1) SBS’s interpretation of the Employment

Agreements was unreasonable; (2) Amigo’s November 12 letter to SBS informed SBS that

Garza and Bernal had long-term employment agreements with Amigo; and (3) Anderson

testified that it was common in the industry to bind on-air talent to a term of years. Thus, we

may not consider SBS’s supposed legal conclusion in reviewing the sufficiency of Amigo’s

evidence. Furthermore, even if SBS did have a good faith belief that Garza and Bernal could

resign from Amigo without breach, this does not absolve SBS of tortious interference liability.

See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989) (“We . . . hold that the

terminable-at-will status of a contract is no defense to an action for tortious interference with

its performance.).

25 The employment agreement for Garza was entitled “joacquin garza final.doc,” and

Cueva testified that the agreements he transmitted were called final drafts. Garza and

Bernal, however, did not actually sign employment agreements with SBS until December 19,

2003. 

26

Employment Agreements with Amigo to “help the lawyer who is doing the new

contracts.” Cueva testified that he requested to see Garza’s and Bernal’s

Employment Agreements with Amigo in order to determine if they existed and

if they prevented SBS from employing Garza and Bernal. Upon receiving the

agreements, Cueva evaluated them and, with the help of SBS’s outside counsel

determined that they did not prevent SBS from hiring Garza and Bernal.24

Amigo then presented sufficient evidence that before Garza and Bernal left

Amigo, SBS transmitted the SBS Employment Agreements to Hernandez,

thereafter revised them in response to Hernandez’s and Bernal’s requests, and

these agreements were significantly more lucrative than Garza’s and Bernal’s

current Employment Agreements with Amigo. Cueva testified, and the evidence

establishes, that on November 24–the day before Garza and Bernal stopped

performing the Show–Cueva transmitted what appeared to be final drafts ofthe

SBS Employment Agreements to Hernandez.25 Furthermore, Cueva testified,

and the evidence establishes, that on November 25, SBS revised the SBS

Employment Agreements to accommodate for changes that were discussed
No. 06-50748

26 SBS maintains that their actions throughout were merely responses to the requests

andinitiatives of Hernandez, and this fact precludes tortious interference liability. SeeCustom

Drapery Co. v. Hardwick, 531 S.W.2d 160, 166 (Tex. Civ. App. 1975) (“[N]o wrong is

committed where the employee acts upon his own initiative and the new employer is merely

receptive to the employee’s suggestions.”). However, SBS’s claim that Hernandez initiated all

communication and action relies on the contradicted testimony of Alarcon and Cueva, which

must be disregarded in reviewing the sufficiency of the evidence. Furthermore, as described

in this section, Amigo presented sufficient evidence for a reasonable jury to believe that SBS

was not “merely receptive” to Hernandez’s actions, but rather actively pursued and induced

Garza and Bernal to work at SBS. The fact that Hernandez originally approached SBS with

a proposalto broadcast the Show from Los Angeles in May 2003 does not render SBS’s alleged

subsequent pursuit of Garza and Bernal “merely receptive” action–a company is only “merely

receptive” to an employee’s suggestions where the employee resigns for his own personal

reasons independent of any act or inducement on the part of the new employer. See Bray v.

Squires, 702 S.W.2d 266, 271 (Tex. App. 1985). Viewing the evidence in the light most

favorable to Amigo, a reasonable jury could believe that Garza and Bernal would not have left

Amigo but for the inducements of SBS. 

27

between Hernandez and Bernal. Finally, Cueva testified that the drafts of the

SBS Employment Agreements offered Garza and Bernal $300,000 and $100,000

per year, respectively, for a term of five years, amongst other bonuses. These

terms were significantly more attractive to Garza and Bernal than their current

agreements with Amigo.

Given this evidence, a reasonable jury could conclude that although SBS

definitively knew that Garza and Bernal were under contract with Amigo, SBS

continued to communicate with and negotiate with them–through Hernandez–in

an attempt to lure them away from Amigo. Thus, despite the fact that Garza

and Bernal did not sign any employment agreements with SBS until after they

left Amigo, Amigo presented sufficient evidence that SBS’s actions after the

Miami meeting constituted willful and intentional acts of interference.26

3. Whether SBS’s Intentional Acts Were The Proximate Cause Of Amigo’s

Damages

To establish proximate cause, a party must show that “the defendant took

an active part in persuading a party to a contractto breach it.” Davis v. HydPro,

Inc., 839 S.W.2d 137, 139 (Tex. App. 1992) (emphasis omitted). “Merely entering
No. 06-50748

28

into a contract with a party with the knowledge of that party’s contractual

obligations to someone else is not the same as inducing a breach.” Id. 

Amigo presented sufficient evidence that SBS committed numerous acts

of interference for the purpose of employing Garza and Bernal, as discussed in

Section III.B.2 supra, and these acts were successful in persuading Garza and

Bernal to leave Amigo. First, SBS knew the terms of Garza’s and Bernal’s

contracts with Amigo and offered them higher salaries and bonuses. Second,

Garza and Bernal knew of the SBS Employment Agreements and their terms

before they left Amigo. Specifically, SBS transmitted final drafts of employment

agreements to Hernandez on November 24, 2003, the day before Garza and

Bernal stopped performing the Show, and revised those agreements on

November 25,the day before Garza and Bernal definitively informed Amigo that

it would no longer be performing the Show. Finally, Garza’s and Bernal’s

statements to Amigo indicated that their decision to leave Amigo was directly

due to SBS’s offer of employment. Brooks testified that on November 26, Bernal

informed him that he and Garza had accepted positions with SBS in Los

Angeles, and Garza thereafter told him via phone that he did not need Amigo

any more. Thus, Amigo produced sufficient evidence of proximate causation.

See Top Value Enters., Inc., 703 S.W.2d at 811 (finding sufficient evidence of

proximate causation where the defendant made an active presentation and

topped the terms of plaintiff’s previous contracts, resulting in a successful offer).

4. Whether Amigo Suffered Actual Damages

As discussed in Section III.A.1.b supra, Amigo produced sufficient evidence

of the fact and amount of damages that resulted from the loss of the Show–that

is, Amigo produced sufficient evidence of its lost profits and lost investment.

Thus, Amigo can pursue these two alternate theories of damages on remand.

Furthermore, Amigo produced sufficient evidence–in the form of a profit and loss

statement prepared by SBS–that SBS made $394,407.15 in profit from airing the
No. 06-50748

27 The trial transcript provides:

THE COURT: And how aboutthe LANAMAC? The violation of the LANAMAC?

MR. TIBBALS [Counsel for Amigo]: The LANAMAC, Your Honor, and unfair

competition or the so called free ride, we don’t believe are nearly as narrow as

described by counsel.

The LANAMAC includes the protection of names such as El Chulo Y La

Bola. If there is a finding by–

THE COURT: That may be the case if have you a right–legal right to it in the

first place, but there is no other evidence in this case shows that you had it.

MR. TIBBALS: If the contract is ambiguous and the jury finds that the intent

of the parties–

THE COURT: I’ve already ruled the contract is not ambiguous, have I not, as

a matter of law?

29

El Chulo Show on SBS. In the event the jury cannot readily ascertain the

amount of lost profit Amigo sustained from the loss of the Show, Amigo can seek

to recover the amount SBS was unjustly enriched by its actions. See Sandare

Chem. Co., 820 S.W.2d at 24 (“[I]n a case of tortious interference with

contractual relations, evidence ofthe defendant’s profits may, when the plaintiff

cannot show with certainty the profits it would have realized in the absence of

the interference, constitute evidence of the plaintiff’s lost profits.”). 

Thus, with respectto Amigo’s claim for tortious interference with contract,

we REVERSE the judgment of the district court and REMAND for further

proceedings consistent with this opinion. 

C. Amigo’s Lanham Act And Misappropriation/Unfair Competition Claims

Amigo contends that the district court erroneously concluded that it

withdrew its Lanham Act and misappropriation/unfair competition claims

during the hearing on Appellees’ motions for judgment as a matter of law. After

reviewing the hearing transcript, we conclude that Amigo did not withdraw

these claims.27
No. 06-50748

MR. TIBBALS: I inferred that, Your Honor, from some of the objections, but I

really did not know. . . .

THE COURT: Okay. Is there any LANAMAC evidence in this case?

. . . . 

MR. TIBBALS: The LANAMAC arises from the validity or in–arises from the

validity of our license to use the name.

THE COURT: All right. And tell me about the tortuous interference with the

contract.

30

SBS asserts that any alleged error was harmless because the district court

“ruled against Amigo on those claims when it concluded thatthe Agreements did

not give Amigo a legal right to use the names ‘El Chulo y La Bola.’” However,

as discussed in Section III.A.2.a supra, the district court erred in finding as a

matter of law that Amigo did not have a license to use the names “El Chulo” and

“La Bola.” 

Thus, with respect to Amigo’s Lanham Act and misappropriation/unfair

competition claims, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion. 

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED

in part, and REVERSED and REMANDED in part.