Rethinking the 1-800-FLOWERS lawsuit

Everything about Leroy Greer's lawsuit against 1-800-FLOWERS.com is misguided, in my opinion, and I would hope that his attorney, Kennitra Foote, would reconsider pursuing this case. Mr. Greer is an adulterer, but ultimately, that has little relevance. Rather, Texas law is quite relevant, and Mr. Greer's claims have scant support in Texas law.

From what I've seen of his complaint, he claims that the florist breached its contract when it sent a thank you note to his home address and subsequently faxed to his estranged wife the receipt showing his purchase of flowers for his mistress.

The first problem that Greer is likely to encounter is proving the contract. He claims he requested by telephone that nothing be sent to his house and the phone representative agreed. He has nothing in writing, which is not fatal to his claim, but will make it difficult to prove that any agreement ever existed unless there is a recording of the call.

Assuming he can prove the contract, the next problem is that under the law, contract damages are very limited. Without getting too legally technical, only certain kinds of damages can be recovered for breach of contract. The goal is to put the injured party in the position he would have been in if the contract had been performed. More importantly, the damages must be reasonably foreseeable--the damages must have been within the reasonable contemplation of the parties at the time of the contract.

The mental anguish damages Mr. Greer is seeking don't fit that bill. In Texas, with rare exception, one cannot recover mental anguish damages for breach of a contract, and this case doesn't seem to fit within the exception. No one would could contemplate that sending a thank you note and receipt to a customer's house could affect a divorce settlement. You'd need a crystal ball and 20/20 vision to see that. In short, the contract claim seems like a hard sell.

There is in Texas a tort for the intentional infliction of emotional damage, which would allow Greer to recover his mental anguish damages, but that appears unlikely as well. To win based on intentional infliction of emotional distress, Greer will need to show 1) extreme and outrageous conduct; 2) intentional or reckless conduct by 1-800-FLOWERS; and 3) severe mental anguish caused by the florist's conduct. Even if the florist acted wrongly in faxing the receipt to Greer's wife, that does not strike me as "outrageous" and is not likely to strike a court as outrageous. There are many cases in Texas with more compelling facts that did not result in a finding of outrageous.

Even if the the florist's conduct is considered outrageous, establishing intentional or reckless conduct on the part of the florist will be the next hurdle. More likely, its conduct would be characterized as negligent, but not reckless or intentional.

Finally, Greer would need to prove that he is actually suffering mental anguish, sufficient to justify damages. That is very difficult to do in Texas. Mere embarassment or annoyance is not enough. One has to suffer an extreme degree of mental pain, and it has to be the result of the outrageous conduct of the defendant. Mr. Greer's statements on the Today Show this morning suggest that his "mental anguish" stems from the ridicule resulting from the lawsuit--not from anything tht 1-800-FLOWERS did.

Moreover, there is the unspoken element, that is, a sympathetic plaintiff. There is so much suspicion about awarding mental anguish damages anyway that as a practical matter, only the most sympathetic plaintiffs tend to have success. Mr. Greer is not sympathetic. Men who cheat on their wives, even their estranged wives, just don't evoke a lot of sympathy. You'll never find a requirement that the plaintiff be sympathetic in the jury instructions, but you have to be realistic.

All in all, I hope Ms. Foote is being paid by the hour. She's taking a big risk if she has a contingency fee arrangment.