Cecil Miskin v. Sugar Gunn, d/b/a Sugar Gunn & Associates--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-94-302-CV

CECIL MISKIN,

Appellant

v.

SUGAR GUNN, D/B/A SUGAR GUNN & ASSOCIATES,

Appellee

From the County Court at Law

Johnson County, Texas

Trial Court # C93-00373

O P I N I O N

Cecil Miskin appeals from a $2,506.75 judgment rendered after a bench trial in favor of Sugar Gunn on a breach-of-contract claim. Gunn, a court reporter, sued Miskin, an attorney, alleging that Miskin had agreed to pay her for a copy of a statement of facts she prepared, but refused to do so when she presented the copy and requested payment. In the first of two points of error, Miskin claims that the evidence is insufficient to support the judgment. By his second point, he argues that he cannot be held liable for the debt because he was acting as the disclosed agent of his former clients. We will affirm the judgment.

Miskin represented Les Sells and Charles Spence in a suit against First American Title Company brought in the district court in Johnson County. Gunn substituted as the court reporter for the trial because the official court reporter, Eleanor Averyt, was transcribing a criminal trial. Sells and Spence prevailed in the trial court and First American appealed. The attorney for First American requested that Gunn prepare an original and one copy of the statement of facts from the trial for the appeal. According to Gunn, Miskin or a member of his staff requested that she prepare a copy for them also. After two extensions of time, the statement of facts was due to be filed in this court on September 2, 1993. Gunn completed the original and both copies on the day before. When she contacted Miskin's office, she was told that he no longer wanted the copy of the statement of facts. After attempting to obtain payment from Miskin, Gunn brought this suit.

In his first point, Miskin alleges that the evidence is both legally and factually insufficient to support a finding that he agreed to pay for the copy of the statement of facts. Neither party requested that the court make findings of facts or conclusions of law; therefore, we imply that the court made all necessary findings in support of its judgment. See Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). Miskin may challenge the legal and factual sufficiency of the evidence supporting these implied findings. See id. at 84. Thus, we will review the evidence to determine if the implied findings are supported by legally and factually sufficient evidence under the same standards as we would in an appeal from a jury verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).

In deciding Miskin's legal-sufficiency challenge, we consider only the evidence and inferences supporting the court's finding and reject the challenge if there is more than a scintilla of evidence to support the court's decision. See Holt Atherton Industries, 835 S.W.2d at 84. Gunn directly stated in her testimony that "[Miskin] owed [her] $2500 [b]ecause [he] ordered a copy of the Statement of Facts," and "told [her] [he] wanted a copy of it" during a meeting at Miskin's office. Gunn's statements are some evidence of an agreement by Miskin to pay for a copy of the statement of facts. See id.

In reviewing Miskin's factual-insufficiency claim, we consider all of the evidence and determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Although Gunn testified that Miskin ordered the statement of facts, she also stated that she wasn't sure that he ordered it personally or if a member of his staff requested that she prepare the copy. When Miskin's office told her that he no longer wanted the copy of the statement of facts during her telephone call to his office on September 1, she claimed that she was also told "they'd pay [her] for what [she] had done." Additionally, Gunn introduced a letter written to her by Miskin in which, after indicating that the appellate attorney did not want a copy of the statement of facts, he stated, "That does not alter the fact that when you called me early on and asked whether we wanted a copy of the transcript . . . I told you I thought they would but reminded you that Jody Gilliam down in Waco was handling the appeal." Finally, Gunn provided testimony from Averyt, the official reporter from the district court, that Miskin ordered and paid for a pretrial portion of the statement of facts which she (Averyt) had recorded. Miskin conceded that he had ordered and paid for this portion of the statement of facts.

However, Miskin denied that he agreed to pay for a copy of the statement of facts prepared by Gunn, maintaining he had told her that Sells had retained another attorney to handle the appeal who was responsible for determining if a copy was needed. Sells also testified that he told Gunn he did not want a copy. Examining all of the evidence, we cannot say that an implied finding that Miskin agreed to pay for a copy of the statement of facts is so against the great weight and preponderance of the evidence as to be manifestly unjust. See id. Point one is overruled.

In point two, Miskin claims that he should escape liability on the agreement because he was acting as the agent for his clients. Generally, an agent contracting on behalf of a disclosed principal does not incur personal liability for a contract within the scope of his authority. Lacquement v. Handy, 876 S.W.2d 932, 939 (Tex. App. Fort Worth 1994, no writ); City of Houston v. First City, 827 S.W.2d 462, 480 (Tex. App. Houston [1st Dist.] 1992, writ denied). Thus, "when an attorney contracts with a third party for the benefit of a client for goods or services to be used in connection with the attorney's representation of a particular client and the third party is aware of these facts, the attorney is not liable on the contract unless he either expressly or impliedly assumes some type of special liability." Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737, 738 (Tex. App. Dallas 1985, writ ref'd n.r.e.); see also Nagle v. Duncan, 570 S.W.2d 116, 117 (Tex. Civ. App. Houston [1st Dist.] 1978, writ dismissed).

However, agency is an affirmative defense to liability. Southwestern Bell Media, Inc. v. Trepper, 784 S.W.2d 68, 71-72 (Tex. App. Dallas 1989, no writ); Glendon Investments, Inc. v. Brooks, 748 S.W.2d 465, 467 (Tex. App. Houston [1st Dist.] 1988, writ denied). Because agency is an affirmative defense, Miskin properly raises this argument as a "matter of law" point. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Thus, to successfully challenge the court's rejection of his affirmative defense, Miskin must show that there is no evidence supporting the court's rejection of his defense and, then, that his contrary assertion has been established as a matter of law. See id. If Miskin carried his burden, Gunn would then be put to the burden of showing that he expressly or impliedly agreed to be personally bound. See Neal v. Ardoin, 594 S.W.2d 145, 146-47 (Tex. Civ. App. Houston [1st Dist.] 1979, no writ). Therefore, we will examine the evidence under the Sterner requirements to determine if Miskin has shown that the court's finding is contrary to the evidence as a matter of law.

As set out above, Gunn testified that Miskin requested a copy of the statement of facts. She knew that he had represented Sells and Spence in the trial, but also knew that they were looking for or had retained another attorney to handle the appeal. On cross examination, when asked by Miskin if she knew if he had ordered it for himself or for his clients, she responded, "I have no idea whether you ordered it for them." She agreed that she could not tell why he wanted it and that it did not make any difference why to her. This evidence is legally sufficient to support the court's failing to find that Gunn knew that the agreement was "for goods or services to be used in connection with the attorney's representation of a particular client." See Eppler, 685 S.W.2d at 738; Nagle, 570 S.W.2d at 117. The issue of whether Miskin had a personal use for the copy of the statement of facts was a fact issue for resolution by the trier-of-fact. See Nagle, 570 S.W.2d at 117-18. Thus, Miskin's matter-of-law challenge to the court's rejection of his affirmative defense fails. Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 12, 1995

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