Moody v. EMC Services, Inc.

• Decision Date: 26 March 1992
• Docket Number: No. C14-90-00642-CV,C14-90-00642-CV
• Citation: 828 S.W.2d 237
• Parties: Robert L. MOODY, Sr., d/b/a Moody Interests, Appellant, v. EMC SERVICES, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 237

828 S.W.2d 237

Robert L. MOODY, Sr., d/b/a Moody Interests, Appellant, v. EMC SERVICES, INC., Appellee.

No. C14-90-00642-CV.

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

March 26, 1992.

Rehearing Denied April 30, 1992.

John A. Buckley, Jr., Andrew J. Mytelka, Galveston, for appellant.

Janna L. Ivey, Houston, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Robert L. Moody, Sr., d/b/a Moody Interests, appeals from a judgment in favor of appellee, EMC Services, Inc., in appellee's suit to recover payment for construction services rendered. Appellant brings four points of error challenging the sufficiency of the evidence, the jury issues, the trial court's failure to grant a new trial in light of alleged jury misconduct, and lack of segregation of attorney's fees. Because we find legally insufficient evidence of para-professional fees and a lack of segregation of attorney's fees, we affirm in part and reverse and remand in part.

Jay Balentine, whose business card stated that he was an administrative assistant for Moody Interests, was allegedly in charge of construction work on the 4M Laundry, a company owned by the Three R Trust. The Three R was an irrevocable trust created for the benefit of the children of Robert L. Moody, Jr. The trustee of this trust was Irwin M. Herz. In January 1983, Balentine met with EMC's vice president, Rex Moran, to discuss construction work EMC would be performing. At this meeting, Balentine told Moran that Robert Moody owned the property on which the laundry was located. All EMC communications with Balentine were addressed to "Moody Interests ... Attention: Jay Balentine." The parties entered into a written contract and Balentine signed this contract on a signature line under which his name and the name "Moody Interests" appeared. After this work was complete, EMC received payment by a check issued by Three R Trust.

Before receiving payment for the work performed under written contract, EMC orally agreed to perform some additional piping work on the 4M Laundry. This was a cost-plus agreement under which EMC would receive a forty-five (45) per cent markup of its direct labor cost, and a seven and one-half (7 1/2) per cent markup on everything else. In connection with this work, Balentine gave Moran a plant layout, identified as "Moody Laundry" and a copy of a handwritten list of items entitled "Moody."

Balentine testified that Moran was told he worked for Three R, but Moran testified he was never told this. EMC's foreman on the cost-plus job testified that Mr. Moody visited the job site regularly, that Moody gave instructions to Balentine, and that both Balentine and Moody gave the EMC foreman directions at the site. Moody admitted he often visited the job site and may have given the foreman instructions about a gas line. EMC sent periodic requests for payment addressed to Moody Interests, but no payment was ever received by EMC.

As EMC was finishing its piping work, a dispute arose concerning certain defects and over-charges. In June 1983, Moran and Jim Mayberry, another principal officer of EMC, met with Moody and Balentine to discuss the problems with EMC's performance and to discuss payment. Irwin M. Herz, Jr., the trustee of Three R Trust also attended this meeting. Appellant claims that when Moran learned Herz was an attorney, he demanded that Herz leave the meeting. Mayberry testified that, during this meeting, Moody offered to settle the dispute. The parties also discussed certain defects in EMC's work.

On June 8, 1983, EMC filed a lien against the property, which included an affidavit stating that Three R Trust was the owner of the property and that EMC had furnished materials and labor to Three R Trust pursuant to a contract. Approximately three years later, EMC sued Robert Moody on the oral agreement claiming that Moody agreed to the cost plus contract by and through his duly authorized agent, Balentine.

In the first point of error, appellant claims no evidence supports the jury's findings that Moody was liable for the contract. Under this general point, appellant raises six sub-points contending that (1) no evidence shows Moody was the agent of Three R Trust, (2) Moody received no benefit from the work performed, (3) EMC elected to bring suit against the wrong party, (4) the trial court erred in admitting testimony attributable to an alleged agent before a showing of an agency relationship, (5) no evidence supports the jury's finding that Balentine had actual or apparent authority from Moody individually or d/b/a Moody Interests, and alternatively (6) insufficient evidence supports the finding of apparent or actual authority. Appellant argues that the evidence conclusively showed that Balentine was not an agent of Moody or Moody Interests, but was the agent of Three R Trust, the undisputed owner of the property and the party with which EMC contracted. Thus, appellant alleges that if any party is liable under the contract, it is Three R Trust and not Moody or Moody Interests.

Where a party challenges the legal sufficiency of the evidence, a reviewing court may consider only the evidence tending to support the jury's finding, disregarding all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). The jury's finding must be upheld if any evidence of probative force supports it. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

When confronted with a challenge to the factual sufficiency of the evidence supporting a jury finding, the reviewing court must examine all the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). After considering all of the evidence, the reviewing court may set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

An agent is one who consents to act on behalf of and subject to the control of another, the principal, who has manifested consent that the agent shall so act. Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 778 (Tex.App.--Fort Worth 1990, writ denied). A principal may confer actual authority on an agent either expressly or by implication. Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). Actual authority means authority the principal intentionally conferred upon the agent, intentionally allowed the agent to believe he possessed, or by want of due care allowed the agent to believe he possessed. Currey v. Lone Star Steel Co., 676 S.W.2d 205, 209-10 (Tex.App.--Fort Worth 1984, no writ).

Apparent authority, on the other hand, is a form of estoppel whereby a third party relies upon conduct by the principal which would lead a reasonably prudent person to believe the agent had authority to act. See Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex.1984). In determining whether the principal conferred apparent authority, one must look only at the acts of the principal. See Guthrie v. Republic Nat'l Ins. Co., 682 S.W.2d 634, 637 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). The principal must have affirmatively held the agent out as possessing authority or must have knowingly and voluntarily permitted the agent to act in an unauthorized manner. Id.

The jury received instructions setting out the law on actual and apparent authority and found that Balentine acted as agent for Moody d/b/a Moody Interests, that Balentine had "actual and/or apparent authority to agree, and while acting within such authority did agree with [EMC] for [EMC] to perform labor and services and provide material, supplies and equipment" for Moody d/b/a Moody Interests. We find that there was some evidence to support this finding.

Although no evidence supports a finding that Balentine had actual authority, evidence does show he had apparent authority to bind Moody d/b/a Moody Interests to an oral agreement with EMC for materials and services. Before entering the oral agreement, EMC had performed work under a written contract, signed by Jay Balentine Moody Interests. Although EMC was paid for this earlier contract work by a check from Three R Trust, EMC did not receive the check until after beginning work under the oral agreement. During construction, Moody visited the site often, and occasionally gave the foreman instructions. EMC sent Moody a demand letter for payment. When no payment was received, Moran called Moody. Moran testified that Moody said he thought the costs were too high. Moody never told Moran that he was not responsible for payment. Moody testified that EMC was told that Three R Trust was the party responsible for payment. Moody classified his input as that of an advisor. Moody further testified that any actions he took with respect to the 4M Laundry were done with Herz's permission.

Although Moody's testimony contradicts some of appellee's evidence, it is the jury's province, as the trier of fact, to judge the credibility of witnesses and the weight to be given their testimony. See Walter Baxter Seed Co. v. Rivera, 677 S.W.2d 241, 244 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). An appellate court may not interfere with the jury's resolution of conflicts in the evidence or pass upon the weight or credibility of the witness' testimony. Id. We think the evidence is sufficient to support a finding that Moody's conduct could have led a reasonable person to believe that Balentine was an agent of Moody d/b/a Moody Interests. Thus, we overrule sub-points 1(5) and 1(6).

The jury's finding that Balentine was an agent of Moody d/b/a Moody Interests also contained a finding that Balentine had the authority to contract and did contract, on behalf of Moody d/b/a Moody Interests, with EMC. Although EMC admitted learning, after performance of the work, that Three R Trust was the owner...