PROTECT ENVIRONMENTAL SERVICES, INC., Appellant/Cross-Appellee, v. NORCO CORPORATION, Appellee/Cross-Appellant.
No. 08-11-00303-CV
Court of Appeals of Texas, El Paso
May 8, 2013
We also note that the Texas Supreme Court looks with disfavor on nonsuits that are filed to circumvent legal restrictions or unfavorable rulings. See, e.g., In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex.2008) (orig. proceeding) (holding that once a venue determination has been made, that determination is conclusive as to those parties and claims, and because venue is then fixed in any suit involving same parties and claims, it cannot be overcome by a nonsuit and subsequent refiling in another county); In re Bennett, 960 S.W.2d 35, 36 (Tex.1997) (orig. proceeding) (holding that neither filing of nonsuit nor subsequent removal of case to federal court deprived state court of jurisdiction to consider, sua sponte, whether sanctions should be imposed on attorneys for pre-removal conduct when sanctions are unrelated to the merits of the removed case); Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854-55 (Tex. 1995) (holding that once trial court announces decision on motion for partial summary judgment, that claim is no longer subject to plaintiff‘s right to nonsuit). Here, section 150.002 requires a plaintiff to file a certificate of merit with its first-filed complaint. If a plaintiff fails to do so, the trial court has no discretion but to dismiss the claims, although the court may dismiss without prejudice. A plaintiff who does not timely file the certificate of merit should not be allowed to circumvent the unfavorable ruling of a dismissal by nonsuiting and then filling an amended complaint with the appropriate certificate. See Villafani, 251 S.W.3d at 470 (claimant should not be allowed to nonsuit a meritless claim and later re-file the claim with impunity).
CONCLUSION
We conclude the trial court erred by not dismissing Pedernal‘s claims against Bruington; therefore, we reverse the order denying Bruington‘s motion to dismiss and render judgment that Pedernal‘s claims against Bruington are dismissed. Because a plaintiff‘s failure to timely file a certificate of merit may be with prejudice, we remand the cause to the trial court for a determination of whether the dismissal of Pedernal‘s claims should be with or with-out prejudice.
Thomas C. Barron, Law Offices of Thomas C. Barron, Dallas, TX, for Appellee/Cross-Appellant.
Before MCCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.
OPINION
YVONNE T. RODRIGUEZ, Justice.
Protect Environmental Services, Inc. (“Protect” or “Appellant/Cross-Appellee“), in a single issue, asserts that the trial court abused its discretion in awarding a reduced portion of the attorney‘s fees and expenses Protect incurred. Norco Corporation (“Norco” or “Appellee/Cross-Appellant“), in a sole issue, alleges error by the trial court in denying Norco‘s motion for new trial alleging legal and factual insufficiency on, inter alia, the issues of actual and apparent authority.1 For the reasons set out below, we affirm.
Protect filed suit seeking damages for, inter alia, breach of contract based on actual and apparent authority. Norco answered with a general denial of all allegations. A bench trial was held on May 23, 2011, at which the trial court requested additional briefing on the issues of actual and apparent authority and ratification. The trial court issued a letter ruling in favor of Protect and signed a final judgment to that effect. The trial court awarded Protect damages of $11,616.34, court costs, pre-judgment interest, and attorney‘s fees of $3,500, for a total judgment of $18,601.14. Neither party requested, and the trial court did not prepare, findings of fact and conclusions of law.
Norco filed a motion for new trial arguing, the evidence was legally and factually insufficient on, inter alia, the issues of actual and apparent authority, while Protect filed a motion for new trial on the issue of attorney‘s fees. The motions were overruled by operation of law and both parties appealed.
FACTUAL BACKGROUND
Shortly after midnight on June 14, 2007; Raymond Bailey2 (“Bailey“), an owner-operator truck driver working as an independent contractor for Norco, was picking up a load at the VersaCold cold storage facility in Fort Worth when his truck was stolen. Bailey‘s truck was found a short while later in Lake Worth, where it was spilling diesel fuel into the water.
According to Bailey, he first realized that the truck was stolen approximately thirty minutes after he arrived at VersaCold at 11:45 p.m. Bailey called 911 at 12:12 a.m. His next call, using the VersaCold phone line, was to Deborah Burroughs (“Burroughs“), the Norco dispatcher on-duty, to inform Norco of the theft of the truck. According to Bailey‘s cell phone records, he called Norco again at 1:18 a.m., 2:06 a.m., 7:05 a.m., and 10:48 a.m. Bailey did not specifically recall when the police took him to where the truck was found, but guessed it was between 1:30 a.m. to 2 a.m. Bailey initially stated Protect arrived at that location about 3 to 3:30 a.m., but later testified Protect had arrived around 2 a.m. Bailey testified that neither he nor Burroughs had called Protect to the scene. Richard Cameron (“Cameron“), President and CEO of Protect, presented Bailey with a contract. The contract was for Protect‘s environmental clean-up services. The environmental clean-up services were to “contain, control and clean up a release of hazardous or regulated materials,” specifically, diesel fuel and other liquids released from the tractor-trailer after it had been abandoned in Lake Worth. Bailey was told for the environmental clean-up to begin, the contract needed to be signed. Bailey testified Cameron told him the contract was between Protect and Norco. Bailey‘s testimony regarding that evening was not exact. He initially stated he had called Norco at approximately 2:06 a.m. and Burroughs had “verbally told me to do whatever it took to take care of it.” He subsequently signed the contract for the environmental clean-up services Cameron had provided to him. Bailey also acknowledged he was not sure of the exact time when Protect arrived, and was unsure about what he spoke to Burroughs about
Bailey understood he had signed the contract “on behalf of Norco, as a representative of Norco.” Further, he believed he had authority to enter into the contract and bind Norco, but he did not specifically tell Cameron he had such authority. Bailey thought the independent contractor agreement3 he had signed with Norco authorized him to bind Norco. Bailey testified he believed he had this authority because:
[F]rom 2005 when I leased on with the company, I had been the whole time picking up shipments and doing everything that had Norco‘s name on it and my name on it as well under the pretense that I‘m a representative of Norco. And whenever I put signs on the side of my truck that says Norco, I have to represent this company.4
Bailey also testified, in the three years since the incident, Norco never told him that he was responsible for the contract or that they were not responsible for the contract.
Cameron testified when he arrived at the truck‘s location, at approximately 2:15 to 2:30 a.m., he initially asked Bailey if he was “Mr. Norco.” After discovering Bailey was not, he told Bailey, Protect would need him to contact Norco and obtain approval before Protect could begin the environmental clean-up.5 Cameron then observed Bailey make a phone call. After Bailey finished the phone call, he then told Cameron he had authorization to sign the clean-up contract. Cameron further testified had Bailey told him that he did not have authorization to sign the contract for Norco, Protect would not have begun clean-up operations. Bailey signed the contract for Norco believing he had the authority to do so. Protect performed the services and completed the work required in the contract that night.
Mindy Stanley (“Stanley“), a Protect employee, testified she both faxed and mailed the signed contract and invoice to Norco on the morning of June 15, 2007, after the environmental work was completed. The invoice charged Norco the cost of the clean-up which totaled $11,616.34. Norco did not respond to the invoice or contract that was mailed and faxed to them. The invoice was not paid and Norco did not assert Bailey‘s lack of authority as the basis for non-payment. Norco‘s silence and non-payment prompted Protect to send reminder letters regarding the payment of the invoice. Stanley also placed several follow-up calls to Norco attempting to secure payment of the invoice, even speaking to the safety director on occasion, but to no avail, the invoice remained unpaid without any explanation. Stanley testified up until September 21, 2007, when the lawsuit was first filed, Norco made no attempt to either pay or dispute the invoice or the contract signed by Bailey. Stanley testified Norco never advised her they were refusing to pay the invoice because Bailey did not have authority to enter into the contract on their behalf.
Protect offered undisputed evidence of their attorney‘s fees and expenses through both exhibits and a brief narrative of Nicholas Nuspl (“Nuspl“), Protect‘s counsel. Nuspl testified the reasonable attorney‘s fees and expenses Protect incurred were $8,924.82, and he anticipated there would be fees of $2,500 for each level of appeal.
DISCUSSION
Protect asserts the trial court abused its discretion in awarding only a portion of the undisputed and uncontradicted attorney‘s fees and expenses Protect incurred. Norco alleges error by the trial court in denying Norco‘s motion for new trial alleging legal and factual insufficiency on, inter alia, issues of actual and apparent authority. We will address Norco‘s issue first.
Norco‘s Appeal
Sufficiency of the evidence and denial of motion for new trial
In its sole issue, Norco contends that the trial court erred in denying Norco‘s motion for new trial on the issues of actual and apparent authority, ratification, and quantum meruit.6 Norco contends the evidence on the facts presented is legally and/or factually insufficient to support a judgment in favor of Protect on the issues of actual or apparent authority. Norco alleges Protect‘s sole reliance of Bailey‘s belief and representation he was an agent of Norco was factually and legally insufficient to establish actual or apparent authority. Norco asserts the trial court erred in failing to grant a new trial because of the lack of evidence that Bailey had actual or apparent authority to bind Norco or alternatively, the trial court‘s rulings is against the great weight and preponderance of the evidence.7
Norco references portions of the trial court‘s letter ruling as findings, however, it is well settled law that letter rulings do not constitute formal findings of fact. Cherokee Water Co. v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990); Castillo v. August, 248 S.W.3d 874, 880 (Tex.App.-El Paso 2008, no pet.). Because of this principle, we determine the court below did not enter any findings of fact in the instant case. See Cherokee Water Co., 801 S.W.2d at 878; Castillo, 248 S.W.3d at 880.
In a trial, to the court, in which no findings of fact or conclusions of law are filed, the trial court‘s judgment implies all findings of fact necessary to support it. Spir Star AG v. Kimich, 310 S.W.3d 868, 871-72 (Tex.2010). When a reporter‘s record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.2003); Alford v. Johnston, 224 S.W.3d 291, 296 (Tex.App.-El Paso 2005, pet. denied). In determining if some evidence supports the judgment and the implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory in its nature. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 767 (Tex.2011).
Because Norco‘s challenge to the breach of contract on legal sufficiency grounds is based on adverse findings with respect to issues on which it did not have the burden of proof, Norco must demonstrate on appeal that no evidence supports each adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex.1983). We view the evidence in the light most favorable to the trial court‘s findings, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). We sustain a “no evidence” issue only if there is no more than a mere scintilla of evidence proving the element of the claim. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 520 (Tex.2002).
Similarly, because Norco did not bear the burden of proof on the breach of contract claim, based on factual sufficiency, Norco must show there was insufficient evidence to support the relevant adverse findings. See Westech Eng‘g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). We consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the finding is so weak as to be clearly wrong and manifestly unjust. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.-Dallas 2006, no pet.). In making this review, we are not a fact finder and will not pass upon the credibility of
Actual and Apparent Authority
Texas law does not presume agency and the party asserting agency has the burden of proving it. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex.2007). A “good faith belief” on the part of a third-party, a person with whom it is dealing is the agent of another, is not enough to bind the purported principal. 2616 S. Loop LLC v. Health Source Home Care, Inc., 201 S.W.3d 349, 356 (Tex.App.-Houston [14th Dist.] 2006, no pet.); Coker v. Cramer Fin. Grp., Inc., 992 S.W.2d 586, 595 (Tex.App.-Texarkana 1999, no pet.). Absent either actual or apparent authority, an agent cannot bind a principal. Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 913 (Tex.App.-Dallas 2008, no pet.). Actual and apparent authority are both created through conduct of the principal communicated either to the agent (actual authority) or to a third party (apparent authority). Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007).
Actual authority, either express or implied, usually denotes that authority the principal (1) intentionally confers upon the agent, (2) intentionally allows the agent to believe he possesses, or (3) by want of due care allows the agent to believe he possesses. 2616 S. Loop, 201 S.W.3d at 356. Actual authority is based on written or spoken words or the conduct of the principal communicated to the purported agent. Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549-50 (Tex.App.-Houston [14th Dist.] 2003, no pet.). An agency relationship based on actual authority may be implied through the conduct of either of the parties or from the facts and circumstances surrounding the transaction in question. Walker Ins. Servs., 108 S.W.3d at 550. In order to prove actual authority, therefore, there must be evidence that either (1) the principal intentionally conferred authority on another to act as its agent, or (2) the principal intentionally, or by a want of due care, allowed another to believe that the agent possessed authority to act as the principal‘s agent. See 2616 S. Loop, 201 S.W.3d at 356. In determining whether a party had actual authority to act for another, we examine the words and conduct by the principal to the alleged agent regarding the alleged agent‘s authority to act for the principal. See Walker Ins. Servs., 108 S.W.3d at 550.
Apparent authority, based on estoppel, arises:
[E]ither from a principal knowingly permitting an agent to hold [himself] out as having authority or by a principal‘s actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority [he] purports to exercise.
Gaines, 235 S.W.3d at 182, quoting Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex.1998).
In other words, apparent authority arises when a principal intentionally or negligently induces parties to believe that a person is the principal‘s agent although the principal has not conferred any authority on that person.8 Thomas Reg‘l Directory Co., Inc. v. Dragon Prods., Ltd., 196 S.W.3d 424, 427 (Tex.App.-Beaumont 2006, pet. denied). To establish apparent authority, the Texas Supreme Court explained that:
[T]he standard is that of a reasonably prudent person, using diligence and discretion to ascertain the agent‘s authority. Thus, to determine an agent‘s apparent authority we examine the conduct of the principal and the reasonableness of the third party‘s assumptions about authority. [Citation omitted].
Manifestations of apparent authority must take the form of “conduct by a person, observable by others, that expresses meaning.” RESTATEMENT (THIRD) OF AGENCY § 1.03, comment (b). Such conduct, however, “is not limited to spoken or written words.... Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance.” Id.
Application of law to evidence presented
In the instant case, the evidence indicates that prior to Protect commencing work, Cameron presented Bailey with a contract between Protect and Norco and advised Bailey to contact Norco and obtain approval before Protect could proceed. Cameron did so because Protect‘s business practices required authorization from the transportation company itself. The evidence is contradictory regarding whether Bailey obtained approval to execute the contract from Burroughs, with Bailey testifying he received authorization, Burroughs denying she gave such authorization. Cameron testified he did not hear the specific conversation purportedly authorizing Bailey to enter into the contract with Norco. However, Bailey immediately represented to him Norco had authorized the work to proceed. Bailey signed the contract, and after the environmental clean-up was completed, a copy of the signed contract and the invoice were sent to Norco via fax and mail in a matter of hours. As the events occurred that night, Burroughs said she had advised Norco‘s safety director of the situation. Later, after the work was performed, Stanley spoke to David Ogden, Norco‘s safety director. According to Stanley and Cameron, during the four months between the date of the initial invoice and up until suit was filed against Norco for non-payment, Norco never once asserted they were refusing to pay the invoice based on Bailey‘s alleged lack of authority.
There is more than a mere scintilla of evidence supporting Protect‘s claims and the evidence presented was not so weak as to be clearly wrong and manifestly unjust. St. Joseph Hosp., 94 S.W.3d at 520; Long, 196 S.W.3d at 464. As noted above, the amount of evidence necessary to affirm a judgment is far less than that necessary to reverse. Bright, 171 S.W.3d at 595-96. Norco has failed to demonstrate either “no evidence” or “insufficient evidence” support such a finding. Croucher, 660 S.W.2d at 57; Westech Eng‘g, Inc., 835 S.W.2d at 196. Perhaps another trial judge could have found, on the basis of this evidence, Bailey did not have apparent authority to enter into the contract. However, the trial court‘s finding to the contrary in the instant case is not erroneous. Because the trial court‘s judgment can be upheld on the basis of apparent authority, the judgment must be affirmed. Rosemond, 331 S.W.3d at 767. Norco‘s sole issue is overruled.
Protect‘s Appeal
In its sole issue, Protect asserts the trial court abused its discretion by awarding attorney‘s fees of $3,500 where the evidence presented indicates Protect incurred attorney‘s fees and expenses of $8,924.82, and thus the trial court‘s decision lacked factual sufficiency.
Generally, the amount of money awarded as attorney‘s fees rests within the sound discretion of the court. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). Regarding attorney‘s fees, the analysis of whether or not a court abuses its discretion, is determined by a two-step inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) if so, did the trial court err in exercising that discretion. Alford, 224 S.W.3d at 298. A court abuses its discretion when it acts without reference to guiding rules and principles, i.e., when it acts in an arbitrary and unreasonable manner. F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 106 (Tex.App.-El Paso 2008, no pet.).
Protect presented uncontroverted testimony from their counsel, along with supporting exhibits, reasonable attorney‘s fees and expenses incurred by Protect were $8,924.82 and it was anticipated additional fees of $2,500 for each level of appeal. According to the invoice presented, the cost of the clean-up was $11,616.34.
The evidence in this case regarding the amount of attorney‘s fees was uncontroverted by any testimony, and Protect contends that it was error for the trial court to reduce the requested award. This would be true unless the trial court found that attendant circumstances contradicted the requested fees or if the evidence was unreasonable or questionable. Because findings of fact and conclusions of law were neither filed nor requested by Protect in this case, we have no way to ascertain the trial court‘s reasoning. As noted above, if findings of fact and conclusions of law are neither filed nor requested, the judgment of the trial court implies all necessary finding of fact to support it. Spir Star AG, 310 S.W.3d at 871-72; Moncrief Oil Intern., Inc., 332 S.W.3d at 7. Therefore, the judgment in this case implies that the trial court found the requested attorney‘s fees, including the fees in the event of an appeal,10 contradicted by attendant circumstances or in some way were found to be unreasonable. Protect has not shown that the trial court abused its discretion and its sole issue is therefore overruled.
CONCLUSION
Having overruled both Protect‘s and Norco‘s issues, the judgment of the trial court is hereby affirmed.