Plantation Production Properties, L.L.C. v. Meeks, No. 10-02-00029-CV (TX 9/8/2004), 10-02-00029-CV.
| Decision Date | 08 September 2004 |
| Docket Number | No. 10-02-00029-CV.,10-02-00029-CV. |
| Parties | PLANTATION PRODUCTION PROPERTIES, L.L.C., AND ALSO D/B/A SKYVIEW RANCH, SKYVIEW RANCH, L.L.C., AND KEN WATSON, Appellants v. JACK MEEKS, INDIVIDUALLY AND D/B/A SUPERIOR BUILDING SYSTEMS, Appellees. |
| Court | Texas Supreme Court |
Appeal from the 87th District Court Leon County, Texas, Trial Court # 0-99-238-B.
Modified, affirmed as modified.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
Plantation Production Properties, Inc., Skyview Ranch, L.L.C., and Ken Watson appeal from a judgment ordering them to pay $45,822 for a metal building built on their property by plaintiff, Jack Meeks, at the request of a tenant. We modify the portion of the judgment allowing recovery on a mechanic's and materialman's lien because Meeks failed to exercise due diligence in serving process upon the appellants regarding that claim and affirm the judgment as modified.
In 1996, Jim Antley contracted with Jack Meeks to build a metal building on what Meeks believed to be Antley's property for $45,822. Meeks testified that Antley referred to himself as Skyview Ranch, and the contract lists "Skyview Ranch c/o Jim Antley" as a party. After the building was completed, Meeks requested payment from Antley. Antley told Meeks that he would need two weeks to come up with the money.
After waiting some time for payment, Meeks again contacted Antley. During their conversation, Meeks learned for the first time that Antley was not the owner of the property, but was leasing the property from Plantation Properties, Inc. Plantation, as recorded in the county records, holds legal title to the property, but the property is managed by Skyview Ranch, L.L.C. Ken Watson is both an officer of Plantation and an officer and manager of Skyview. Antley provided Meeks with information on how to contact Watson and told Meeks that Watson would pay him.
Meeks mailed statements to Watson, Skyview Ranch, and Antley. Antley received the statement, but Skyview's and Watson's statements were returned. Meeks then mailed and faxed the statement to Watson. After no response, Meeks called Watson. Watson told Meeks that he would pay the bill if Meeks would send him an affidavit stating Meeks had paid in full all the labor and materials used in the construction of the building. Meeks faxed and mailed the requested affidavit stating that all labor and materials had been paid for and that $45,822 remained due on the contract. After no response, Meeks requested by fax that Watson contact him regarding the bill, and again mailed the statement. Meeks again received no response.
Meeks signed a mechanic's and materialman's lien affidavit against the property, filed it on June 6, 1997, and sent copies of the affidavit along with a current statement to Watson, Plantation, and Antley by certified mail, return receipt requested, by regular mail, and by fax. Watson and Antley refused to claim the certified mail. After repeated attempts to collect payment, Meeks filed suit against Plantation, Skyview, Watson, (collectively, "Appellants") and Antley on May 28, 1999. In a bench trial, the trial court found Appellants had breached their contract to Meeks and awarded him $45,822, plus attorney's fees.
Appellants argue in seven issues that: (1) there is no evidence that Appellants entered into a contract with Meeks for the construction of the barn; (2) there is no evidence that Appellants gave Antley actual authority to contract on their behalf with Meeks; (3) there is no evidence that Appellants gave Antley apparent authority to contract on their behalf with Meeks; (4) the doctrine of undisclosed principle is not applicable to Meeks's claims; (5) the court erred in imposing the mechanic's and materialman's lien; (6) there is no evidence of unjust enrichment; (7) there is no evidence that Meeks exercised due diligence in obtaining service of process upon Appellants in regard to the lien; and (8) in the event of reversal, the judgment for attorney's fees should be set aside.
Appellants argue in their second and third issues that there is no evidence that Antley had actual or apparent authority to enter into a contract with Meeks on Appellants' behalf. Meeks argues that Appellants gave Antley the authority to contract with Meeks, and in the alternative, Appellants ratified the contract.
Meeks had the burden to prove that an agency relationship existed between Appellants and Antley. Royal Mortgage Corp. v. Montague, 41 S.W.3d 721, 732-33 (Tex. App.-Fort Worth 2001, no pet.). When an appellant who did not have the burden of proof at trial complains of legally insufficient evidence, the appellant must show there is no evidence to support the contested finding. Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App.-Waco 2001, pet. denied). The appellate court must consider only the evidence and inferences that support the adverse finding and ignore all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). A "no evidence" claim will be sustained if: (a) there is a complete absence of evidence of a vital fact, (b) the rules of law or evidence prevent the court from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is not more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). When the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusion," then there is more than a scintilla of evidence. Beard, 49 S.W.3d at 55 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
"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." Montague, 41 S.W.3d at 732 (citing Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 778 (Tex. App.-Fort Worth 1990, writ denied)). An agency relationship does not depend upon the express appointment or assent by the principal; rather, it may be implied from the conduct of the parties. Id. An agency relationship may be found from underlying facts or direct and circumstantial evidence showing the relationship of the parties. Walker Ins. Services v. Bottle Rock Power Corp., 108 S.W.3d 538, 550 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Townsend v. Univ. Hosp.-Univ. of Colorado, 83 S.W.3d 913, 921 (Tex. App.-Texarkana 2002, pet. denied). An agency relationship may be established in two ways: actual authority of the agent or apparent authority of the agent.
Actual authority is created when the principal communicates to the agent, by words or conduct, that the agent has authority to act on the principal's behalf. See Walker Ins. Services, 108 S.W.3d at 549-50; Spring Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex. App.-Houston [1st Dist.] 1994, no writ). The existence of an agency relationship based on actual authority may be implied from the conduct of the parties or from the facts and circumstances surrounding the transaction in question. Walker Ins. Services, 108 S.W.3d at 550.
Actual authority is based upon what the principal communicated to the agent. Neither Appellants nor Antley testified at trial. The only witness, Meeks, testified that he believed he was contracting directly with Antley during negotiations, acceptance, and performance of the contract. It was not until Meeks sought payment that he learned of Appellants' existence. There is no evidence as to the communications, express or implied, between Appellants and Antley. Therefore, there is no evidence, express or implied, that Antley had actual authority to contract for Appellants. Walker Ins. Services, 108 S.W.3d at 550.
Likewise, there is no evidence that Antley had apparent authority to contract on behalf of the Appellants. While actual authority is created by the principal's conduct, express or implied, to the agent, apparent authority is created by the principal's conduct, express or implied, to a third party. See Walker Ins. Services, 108 S.W.3d at 550; Cameron County Sav. Ass'n v. Stewart Title Guaranty Co., 819 S.W.2d 600, 603 (Tex. App.-Corpus Christi 1991, writ denied). Meeks must show that Appellants either knowingly permitted Antley to hold himself out as having authority or showed such lack of ordinary care as to clothe Antley with indicia of authority. See Nations Bank v. Dilling, 922 S.W.2d 950, 952-53 (Tex. 1996); Walker Ins. Services, 108 S.W.3d at 550. Meeks must establish conduct by Appellants that would lead a reasonably prudent person to believe Antley had the authority he purported to exercise. See Dilling, 922 S.W.2d at 952-53; Walker Ins. Services, 108 S.W.3d at 550-51. A prerequisite to a proper finding of apparent authority is evidence that the third party (Meeks) relied on the conduct of the principal (Appellants). Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998) (citing Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984)).
Meeks testified that Watson told him he would pay for the barn. This is an affirmative action on the part of Appellants that would lead a reasonable person to believe that Antley was acting as Appellants' agent. However, the agreement to pay for the barn occurred after the contract between Meeks and Antley was already in place. Meeks must prove that he relied upon Appellants' conduct when he was contracting with Antley. Patel v. Kuciemba, 82 S.W.3d 589, 597 (Tex. App.-Corpus Christi 2002, pet. denied) (...
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