Box v. Flynn

• Decision Date: 22 December 1993
• Docket Number: No. 04-93-00300-CV,04-93-00300-CV
• Citation: 870 S.W.2d 585
• Parties: Brian BOX, Appellant, v. Riley FLYNN, Appellee.
• Court: Texas Court of Appeals

Page 585

870 S.W.2d 585

Brian BOX, Appellant, v. Riley FLYNN, Appellee.

No. 04-93-00300-CV.

Court of Appeals of Texas San Antonio.

Dec. 22, 1993.

Peter Koelling, Peter M. Koelling, P.C. and Demetra Koelling, Koelling & Koelling, P.C., San Antonio, for appellant.

Steven R. Saindon, San Antonio, for appellee.

Before CHAPA, C.J., and RICKHOFF, J., and GERALD T. BISSETT, Assigned Justice.

OPINION

GERALD T. BISSETT, Assigned Justice ¹.

This case involves alleged violations of the Texas Talent Agency Act and the Deceptive Trade Practices Act.

Brian Box, plaintiff in the trial court (hereafter "Box"), appeals from a judgment in favor of Riley Flynn, defendant in the trial court (hereafter "Flynn"). We affirm.

Box filed his second amended original petition, his trial pleading, on November 20, 1992. He alleged conversion by Flynn of a pair of boots and several paychecks issued by "Irish Production" to him, fraud, and deceptive trade practices in violation of TEX.REV.CIV.STAT.ANN. art. 5221a-9 § 13(b) ("DTPA").

Flynn filed his first amended answer and counterclaim on November 20, 1992, which consisted of a general denial and several affirmative defenses, to wit: 1) a plea of payment of the paychecks which Box alleged were converted by Flynn; 2) a breach of contract for the fair rental value of Flynn's house and equipment for each day that Box worked pursuant to the agreement between Flynn and Box; 3) conversion of a footlocker valued at $50; and 4) fraud. In connection with the suit for fraud, Flynn sought "damages far in excess of the jurisdictional limits of this Court" for such fraud. He further asked for attorney's fees, court costs and interest. On November 30, 1992, the trial court permitted Flynn to file a trial amendment to his first amended original answer and counterclaim by filing his second amended original answer and counterclaim, his trial pleading. The allegations in the trial amendment were, in substance, the same allegations contained in his first amended original answer and counterclaim; except that in the trial amendment Flynn alleged that he sought "damages in an amount within the jurisdictional limits of the Court."

Trial to a jury began on December 1, 1992. The jury found: 1) Flynn did not commit fraud against Box; 2) Flynn converted the paychecks and the boots (belonging to Box); 3) Flynn, when he converted Box's property, did not act with malice; 4) Flynn did not engage in any false, misleading or deceptive act or practice that was a producing cause of damage to Box; 5) Flynn did not engage in any unconscionable action or cause of action that was a producing cause of damage to Box; 6) $567.37, if paid now in cash would fairly and reasonably compensate Box for his damage that resulted from the conduct of Flynn; 7) Flynn and Box agreed that Box would receive $200 per day for each day he worked on the movie set, and that Box would pay Flynn from the $200, $90 as rental for horse, tack and necessary costume articles; 8) Box failed to comply with the agreement; 9) Flynn substantially relied to his detriment on Box's promise to travel to Montana and participate in the movie, which reliance was foreseeable by Box; 10) Flynn performed compensable work for Box; 11) Box did not commit conversion against Flynn; 12) Box committed fraud against Flynn; 13) $505.00, if paid now in cash, would fairly and reasonably compensate Flynn for his damages that resulted from the conduct of Box; 14) $5,000, if paid now in cash, should be assessed against Box and awarded to Flynn as exemplary damages for fraud by Box; and 15) attorney's fees were found to be due to Flynn for the necessary services of his attorney, as follows:

(a) $7,000 for preparation and trial of this case;

(b) $2,500 for appeal to the Court of Appeals;

(c) $1,000 for making or responding to an application for writ of error to the Supreme Court of Texas; and,

(d) $2,500 if application for writ of error is granted by the Supreme Court of Texas.

Final judgment was signed on January 13, 1993. It provided that Flynn recover from Box the sum of $27.63 in actual damages, $5,000 in punitive damages, $828.73 pre-judgment interest, attorney's fees in the amount of $7,000 for preparation and trial of this case, post-judgment interest on the above liquidated sums ($12,856.36) at the rate of 10% per annum until paid, and attorney's fees as found by the jury in the event of an appeal, application for a writ of error or responding to such an application.

Box's motion for new trial was overruled by operation of law.

Box requested that only part of the record be sent to the Court of Appeals. He did, however, comply with Texas Rule of Appellate Procedure 53(d), which states:

If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Any other party may designate additional portions of the evidence to be included in the statement of facts.

The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP.P. 50(d); Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982). It is undisputed that a complete statement of facts was not brought up for review. It is also undisputed that Flynn did not designate additional portions of the evidence to be included in the statement of facts. The record in this case reveals that the statement of facts contains only the testimony of the defendant Flynn and that of his son, R.K. Flynn. We consider only the plaintiff Box's Exhibit No. 8, which contains copies of checks issued to Box for services rendered. That exhibit was admitted in evidence by the trial court. There are other exhibits in the record but since there is no showing that they were admitted in evidence by the trial court, we do not consider them.

According to the testimony of the defendant Flynn and his son, R.K. Flynn, the defendant Flynn did not get Box a part in the movie "Far and Away." They testified that Box admitted at trial that he worked for Flynn. Flynn's company was hired to deliver mounted extras for the movie. Prior to leaving San Antonio, Texas, for Montana, for filming of the movie, all riders including Box were advised of the amount they would be paid for working in the movie, and that they would be required to rent a horse, tack and costume from Flynn for $125.00 per day. Riders were instructed that if they did not accept these terms, they would not participate in the trip to Montana. Box went to Montana. Immediately upon arriving, he contracted to rent a horse from someone else for a lesser price. Flynn became aware of this, and again advised Box of the terms of their agreement. The horse, costumes and tack had been transported from Texas for use by the riders in Flynn's business, including a horse and equipment for Box, who followed the terms of the agreement for several weeks. However, after receiving his first check, he returned to Texas, leaving Flynn with a horse and equipment with no rider. Later, Flynn received checks made payable to Box for the last few days Box worked. Flynn cashed these checks, using the monies to offset unpaid amounts owed to him by Box for horse, costume and tack rental. Flynn offered repeatedly to make a final accounting with Box, but Box refused.

Box contends in his first point of error that "the trial court erred by granting an instructed verdict for the defendant that he was exempt from the Texas Talent Agency Act." Both parties admit in their briefs that the trial court did grant an instructed verdict that Flynn was exempt from the Texas Talent Agency Act. The record does not contain such an order; however, we do consider such an order because of the admissions made by both parties. The instructed verdict required a finding that there was no evidence on this issue. If more than a scintilla of evidence was present the instructed verdict would not have been proper and the court should have allowed it to go to the jury. Shelton v. Swift Motors, Inc., 674 S.W.2d 337, 340 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.).

The defendant Flynn testified:

Q: Are you licensed as a talent agency in the State of Texas?

A: No, I'm not.

Q: Are you required to be licensed as a talent agency in Texas?

A: No, sir, I did not perform as a talent agency. A talent agency brings people in, takes their picture, gets a resume of what they can do and then send it off to production companies and keeps a fee of the, percentage fee of their wages. And I do not do that.

Q: You take no fees, no commissions from the work your employees obtain?

A: None.

Q: Do you hire these people who work in your own company?

A: Yes.

Q: Is it your understanding that that's the way you operate and you are exempt from registering--

A: Yes, that is correct, I'm exempt.

There was no objection by Box to this testimony. There is no evidence in the record which contradicts the above-quoted testimony.

The Texas Talent Agency Act is set forth in TEX.REV.CIV.STAT.ANN. art. 5221a-9 (Vernon Supp.1993). The Act provides that " 'Talent Agency' means a person that engages in the business of obtaining or attempting to obtain employment for artists." As asserted by Flynn, he was not in the business of placing riders in positions of employment. He hired riders to work for him, and his business success depended upon placing his horses and tack in movie projects. The Texas Talent Agency Administrative Rules recognize that such a business is not subject to the Texas Talent Agency Act. The Rules state:

The term "talent agency" does not apply to a person who, without assessing a fee operates a talent agency in conjunction with the person's own business, or as the authorized representative for a...