O'Bryant v. Century 21 South Cent. States, Inc.

• Decision Date: 16 March 1995
• Docket Number: No. C14-94-00147-CV,C14-94-00147-CV
• Citation: 899 S.W.2d 270
• Parties: Ida Marie O'BRYANT, Appellant, v. CENTURY 21 SOUTH CENTRAL STATES, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 270

899 S.W.2d 270

Ida Marie O'BRYANT, Appellant, v. CENTURY 21 SOUTH CENTRAL STATES, INC., Appellee.

No. C14-94-00147-CV.

Court of Appeals of Texas Houston (14th Dist.).

March 16, 1995.

Ralph Ray Gregory, Jr., Houston.

Jennifer Bruch Hogan, Joy M. Soloway, Fulbright & Jaworski, Houston.

Before MURPHY, YATES and FOWLER, JJ.

OPINION

MURPHY, Justice.

Appellant Ida Marie O'Bryant brings this appeal from a summary judgment in favor of appellee Century 21 South Central States, Inc. In one point of error, she challenges the sufficiency of the proof to support the trial court's ruling. We affirm.

Two representatives of Century 21 Newhouse and Associates (Newhouse) leased a house to appellant in a residential neighborhood. Approximately one month into the lease arrangement, an intruder entered the leased premises and sexually assaulted appellant. Appellant brought suit against the homeowners and Newhouse, alleging negligence and numerous violations of the Texas Deceptive Trade Practices Act. Because appellee was the franchisor that provided a Century 21 franchise to Newhouse, appellant amended her petition to include appellee, alleging that an agency relationship existed between Newhouse and appellee which imposed vicarious liability on appellee for the negligent acts of Newhouse. Upon appellee's motion, the trial court granted summary judgment.

A defendant is entitled to summary judgment if it can establish with competent proof that as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The standards in reviewing summary judgment proof are:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true; and

(3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex.App.--Houston [14th Dist.] 1992, writ denied).

In order to prove the existence of an agency relationship, Texas law requires the party asserting agency to prove the principal has both the right to assign the agent's task and the right to control the means and details by which the agent will accomplish the task. Webster v. Lipsey, 787 S.W.2d 631, 635 (Tex.App.--Houston [14th Dist.] 1990, writ denied); Johnson v. Owens, 629 S.W.2d 873, 875 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). Furthermore, the right of control must pertain to a task or matter material to the lawsuit. E.g., Johnson, 629 S.W.2d at 875; see also Exxon Corp v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993) (stating that "the nature of the matters to which the right of control extends [is] determinative"); Barnes v. Wendy's Internat'l Inc., 857 S.W.2d 728, 730 (Tex.App.--Houston [14th Dist.] 1993, no writ).

The issue here, then, is whether appellee carried its burden to show that no genuine issue of fact existed as to whether appellee had the right to control Newhouse in matters material to this lawsuit. Appellant outlined the matters material to this lawsuit in her fourth amended petition in which she alleged that Newhouse and its agents were guilty of negligence as follows:

In failing to insure that the locks of the leased premises were all in working condition.

In failing to warn the Plaintiff that the necessary repairs to all defective locks would not be accomplished within a reasonable time.

In failing to provide adequate security for the safety of Plaintiff and her property.

In making false representations that the leased premises and neighborhood were safe, when in fact they were not.

In failing to warn Plaintiff about prior crimes committed on and around the leased premises.

In failing to timely remove the locksafe from the back gate of the leased premises.

In making false representations about the condition of the leased premises.

To support its motion for summary judgment, appellee attached its franchise agreement with Newhouse, which expressly states:

Neither CENTURY 21 Regional nor CENTURY 21 International shall regulate the hiring or firing...