J. O. LOCHRIDGEFROM A DISTRICT COURT GENERAL CONTRACTORS, INC., APPELLANT, v. OF WILLIAM MORGAN, d/b/a KING EDWARD VILLAGE APARTMENTS, DEREK L. BLACKWELL, RONALD G. KIRIPOLSKY, JUDY G. KIRIPOLSKY, ROBERT J. TYREE, JR., SUSAN M. TYREE, ALAN S. WATTSON, RITA WATTSON, THE R.A. WATTSON COMPANY, GARY v. PIZZITOLA AND ALBERTA K. PIZZITOLA, APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00545-CV
J. O. LOCHRIDGEFROM A DISTRICT COURT
GENERAL CONTRACTORS, INC.,
 
        APPELLANT,
 
v. OF
 
WILLIAM MORGAN, d/b/a KING
EDWARD VILLAGE APARTMENTS,
DEREK L. BLACKWELL, RONALD G.
KIRIPOLSKY, JUDY G. KIRIPOLSKY,
ROBERT J. TYREE, JR., SUSAN M.
TYREE, ALAN S. WATTSON, RITA
WATTSON, THE R.A. WATTSON
COMPANY, GARY V. PIZZITOLA AND
ALBERTA K. PIZZITOLA,
 
        APPELLEES.DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES STEPHENS FN:1
AND ASHWORTH FN:2
OPINION BY CHIEF JUSTICE ENOCH
AUGUST 1, 1989
        This is an appeal of an instructed verdict in favor of William Morgan, d/b/a King Edward Village Apartments (Morgan), Derek L. Blackwell, Ronald G. Kiripolsky, Judy G. Kiripolsky, Robert J. Tyree, Jr., Susan M. Tyree, Alan S. Wattson, Rita Wattson, the R. A. Wattson Company, Gary V. Pizzitola and Alberta K. Pizzitola (appellees) against J. O. Lockridge General Contractors, Inc., (Lockridge). In one point of error, Lockridge asserts error by the trial court in instructing a verdict in favor of appellees. FN:3 Finding merit in this point of error, we reverse and remand for retrial.
        Lockridge entered into an agreement with Morgan, to perform substantial repairs in the amount of $344,500.00 to apartments owned by Morgan and appellees and which had been fire-damaged. Lockridge claimed some work was done prior to being ordered to stop by Morgan and sought recovery either under the contract or in quantum meruit against Morgan and appellees. After appellant rested, appellees moved for an instructed verdict which was denied. They then rested and again moved for an instructed verdict which was granted.
        Under its point of error, Lockridge argues that the evidence amply raised fact questions for the jury as to apparent authority and actual implied authority of Morgan to bind the appellees to pay for the services performed by Lockridge.
        The record before us consists of four excerpts from the trial proceedings which have been designated "Statement of Facts". Three of the excerpts relate to rulings of the trial court admitting into evidence Plaintiff's Exhibits 7, 8, 10, 11, 26 and 28. The remaining excerpt pertains to Lockridge's Bill of Exception Number 1, which is a statement by Lockridge for its attorneys' fees, and such excerpt contains the statements of the attorneys and the trial court relative to the motions for instructed verdict.
 
 
        We briefly summarize Lockridge's exhibits:
        Exhibit Number 7 - a copy of William J. Morgan's Original Answer and Counterclaim.
 
        Exhibit Number 8 - a copy of the Tenancy in Common Agreement. This agreement relates to the property in question and is executed by all the appellees and Morgan as owners. Such agreement provides that decisions regarding management of the property shall be made by the owners according to vote of their ownership interest. The agreement further provides that William J. Morgan shall perform duties of off-site manager until removed by sixty percent of the ownership interest. Such exhibit further provides that Morgan shall concurrently enter into a Management Agreement providing for the off-site management. (Such management agreement is not a part of the record before us.)
 
        Exhibit Number 10 - Proof of Loss relating to the fire damage addressed to Houston General Lloyds Insurance Company on behalf of "Tenants in Common d/b/a King Edward Village Apartments" and signed by William J. Morgan. (No representative capacity is shown.)
 
        Exhibit Number 11 - copy of a promissory note in the principal amount of $20,000.00 payable to Stephen P. Kolb and Judith Diane Kolb executed by William J. Morgan as Managing Owner of King Edward Village Apartments. (The trial court admitted this exhibit for such relevance as it may have.)
 
        Exhibit Number 28 - Answers to interrogatories in another, unrelated law suit propounded to Allan S. Wattson and the R.A. Wattson Company. (Referred to later in this opinion.)
 
        Exhibit Number 29 - Answers to interrogatories in the same unrelated case propounded to Rita Wattson, Allan Wattson's wife. (Also referred to later in this opinion.)
        An instructed verdict is proper if the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the movant, or negate the right of his opponent to judgment. Ottis v. Haas, 569 S.W.2d 508, 512 (Tex. Civ. App.--Corpus Christi l978, writ ref'd n.r.e.); Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931; (Tex. Civ. App.--Corpus Christi 1977, no writ); 3 R. McDonald, Texas Civil Practice in District and County Courts § 11.28.1 (1970). In reviewing the granting of an instructed verdict, we must consider the evidence in the light most favorable to the party against whom the verdict was instructed, disregarding all contrary evidence and inferences. See Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865, (Tex. 1982); Texas Employers' Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex. 1977). By this review, we must determine if there is any conflicting evidence of sufficient, probative force to raise a fact issue on any theory of recovery pleaded. White v. Southwestern Bell Telephone Co., 651 S.W.2d 260, 262 (Tex. 1983); Tarrant Utility Co., 638 S.W.2d at 862. If there is any such evidence in the record, a determination of that issue is for the jury. Id; see also Pantel Business Systems, Inc. v. Custom Controls Company, Vol. 32 Tex. Sup. Ct. J. 115, 116 (December 10, 1988).                  Lockridge pleaded two theories of recovery against appellees; 1) apparent authority of Morgan to bind appellees, and 2) actual implied authority of Morgan to bind appellees.         The test in determining the question of apparent authority is whether there is such conduct on the part of the principal as would lead a reasonably prudent person using diligence and discretion to believe that the agent had authority to act for the principal. Chastain v. Cooper & Reed, 152 Tex. 322,, 257 S.W.2d 411 (Tex. 1952); Anchor Crane & Hoist v. Sumrall Personnel, 620 S.W.2d 653 (Tex. Civ. App.--Dallas 1981, no writ). The record before us shows no evidence that there were any representations made by appellees to Lochridge as to Morgan's authority. Nor is there any evidence of conduct on the part of the appellees that could be construed as affirming the authority of Morgan to bind the appellees. To the contrary, the record indicates that Lochridge was not aware of the existence of the owners other than Morgan until after the lawsuit was filed. As a matter of law Lochridge has no claim against appellees under a theory of apparent authority.
        Actual implied authority, however, is that power which is necessary, usual and proper to accomplish or perform the main authority expressly delegated to the agent. 679-89 BLACK'S LAW DICTIONARY (5th ed. 1979); see also Johnson v. Holly Farms of Texas Inc., 731 S.W.2d 641 (Tex. App.--Amarillo 1987, no writ). Implied authority of an agent is incidental to and cannot exist without express authority. Continental Oil Co. v. Baxter, 59 S.W.2d 463, 466 (Tex. Civ. App.--Eastland 1933, no writ).
        In this case, Morgan's main expressed authority was to perform the duties of an off-site manager in regard to the property. The Tenancy in Common Agreement provided that Morgan was to be the "Trustee" of the property and Article 7 of the agreement dealing with management provided that Morgan was to perform the duties of an off-site manager in regard to the property. He was to keep books of the accounts of the property and to be the signatory on a bank account to be used "solely for the business of the operation of the property." Funds could only be withdrawn from the account "only upon the signature of the Manager [Morgan] or such other person or persons as may from time to time be designated by the parties." In answers to interrogatories in an unrelated lawsuit which were introduced in the record of this case.
        Various owners of the property were asked what Morgan's duties consisted of in relation to the King Edward Apartments. One responded that it was Morgan's responsibility to monitor operations of the apartments and to supervise the on-site manager. Another responded that it was Morgan's duty to look after their investment in the property and take care of the routine day-to-day operation decisions. In addition, the record revealed a promissory note made by King Edward Village Apartments and is signed by William J. Morgan as managing owner, as well as a proof of loss form signed by William J. Morgan on behalf of the tenants in common d/b/a King Edward Village Apartments.
        The facts of this case are that Morgan contracted for approximately $344,500.00 worth of repairs to be completed on a portion of the King Edward Apartments that were damaged due to a fire. These repairs could be found by a trier of fact to be reasonably necessary to look after the investment of the apartment complex and/or within the duties of the off-site manager of the complex. Therefore, the question of actual implied authority should have gone to the jury.
        Since a fact issue was raised on the question of implied authority, an instructed verdict in favor of Morgan was improper. Lockridge's point of error is affirmed. The judgment of the trial court is reversed and remanded for a new trial.
 
                                                  
                                                  CRAIG TRIVELY ENOCH
                                                  CHIEF JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00545.F
 
FN:1 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Clyde R. Ashworth, Justice, retired, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment.
FN:3 Morgan filed for bankruptcy during the trial. Although the judgment purports to rule upon Lockridge's claim against Morgan d/b/a King Edward Apartments and on Morgan's counterclaim, the parties have not questioned the judgment in this respect. See [cite] However, we have no record that the automatic stay has been lifted. Therefore, although Morgan d/b/a King Edward Apartments is listed as one of the appellees, we do not consider on this appeal the correctness of the trial court judgment as it relates to Morgan.
File Date[01-02-89]
File Name[880545]