Jane H. Norcross v. Ed McEathron--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-092-CV

JANE H. NORCROSS,

Appellant

v.

ED McEATHRON,

Appellee

From the County Court at Law

McLennan County, Texas

Trial Court # 910401 CV1

O P I N I O N

Norcross appeals from a judgment holding her liable for violations of the Deceptive Trade Practices Act committed by her son, Tom Hallberg, during the sale of an automobile to McEathron. In her first six points of error, Norcross claims that the trial court erred in concluding as a matter of law that Hallberg was acting as her agent, was acting within this agency relationship when he violated the DTPA, and in failing to submit these issues to the jury. In her seventh and final point, Norcross complains that the court failed to provide the jury with "any standards" in determining whether Norcross should have been held liable for exemplary damages. We will affirm.

In 1988 Norcross bought Hallberg a Toyota Supra as a high school graduation gift. Because Hallberg was a minor she took the title in her name. She also paid for the car's insurance, but Hallberg generally paid for his own operating expenses. In 1990 Hallberg decided to sell the car. After seeing the car parked with a "for sale" sign in the window, McEathron contacted Hallberg. They met, McEathron test drove the car and decided to purchase it. McEathron offered Hallberg $11,000 for the car and Hallberg accepted. McEathron wanted to finalize the purchase on Friday, but Hallberg, who was going to Austin for the weekend, wanted to wait until the following Monday. McEathron, however, insisted on completing the transfer on Friday, and Norcross, after consulting with Hallberg by telephone, accepted the payment check, made out to Hallberg, and delivered the car to McEathron while Hallberg was in Austin.

The following Wednesday, McEathron was informed by his lender that the title to the car was marked "reconditioned." According to the trial testimony, a reconditioned title is issued after a vehicle, which has been ruined by some unfortunate event, is rebuilt and made road-worthy again. The title is stamped "reconditioned" so that subsequent purchasers will be notified that the car's history includes some traumatic occurrence, such as being "totaled" in an accident or a flood. Of course, the value of a vehicle is substantially reduced by the fact that it is held under a reconditioned title. McEathron brought this suit under the DTPA, alleging that the failure of Hallberg or Norcross to inform him that the car's title was "reconditioned" and that the car had been previously stolen were deceptive acts and unconscionable actions within the meaning of the statute.

At the conclusion of an on-the-record charge conference, in which Norcross objected to the lack of an issue on agency, McEathron's attorney sought to clarify the reason that the charge did not contain any reference to an agency relationship between Norcross and Hallberg:

[PLAINTIFF'S ATTORNEY]: The only thing, from our part, Your Honor, just to make sure it's clear on the record, we had a conference about the Charge out of the presence of the court reporter, and it's my understanding basically as a matter of law the Court found that Tom Hallberg was the agent, and was clearly acting within the scope of his authority on behalf of Jane Norcross. Is that the Court's finding?

THE COURT: Yes. That's what I found, and that's why I'm submitting the question as you all have tendered it.

Because of this ruling, the charge did not require the jury to determine if Hallberg was Norcross' agent or if he was acting within the scope of any such agency when he negotiated the sale of the car to McEathron.

In point one, Norcross challenges the court's conclusion that Halberg was Norcross' agent and that he was acting within the scope of the agency when he negotiated the sale of the car to McEathron. Point two claims that the court erred by failing to require the jury to determine if the acts committed by Hallberg were committed in the scope of the agency. The existence of an agency relationship can be a question of law for the court to determine. See Ross v. Texas One Partnership, 796 S.W.2d 206, 209-10 (Tex. App. Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex. 1991). "[I]f the facts are uncontroverted or otherwise established, the existence of an agency relationship is a pure question of law." Id. at 210. Because "a trial court may refuse to submit an issue only if no evidence exists to warrant its submission," we must review the evidence to determine if the court erred in finding that Hallberg was Norcross' agent and was acting in the scope of that agency. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). If there is no evidence to support the contrary conclusion, i.e., that Hallberg was not Norcross' agent or was not acting within the scope of the agency, then the court did not err in refusing to submit the issue to the jury because "only disputed issues must be submitted to the jury." See T. O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992).

Both Norcross and Hallberg testified that the title to the car was in Norcross' name. Each agreed that Norcross had the authority to prevent the sale of the vehicle if she determined that the terms of the sale were unreasonable. Although each also testified that they "felt" that Hallberg was selling his own car, neither offered any evidence or testimony which disputed the fact that Norcross held legal title to the car. Thus, only Norcross had the legal ability to transfer the title to the car. See Tex. Rev. Civ. Stat. Ann. art. 6687-1, 33(a) (Vernon Supp. 1994).

Because only Norcross had the legal authority to transfer the ownership of the car, Halberg was necessarily her agent when he negotiated the terms of the sale with McEathron. This agency relationship was created by Norcross to allow Hallberg to arrange for the sale of the automobile that Norcross owned. Norcross manifested her consent that Hallberg act on her behalf by refusing to complete the transaction without Hallberg's approval and had the right to control the details of the transaction because of her legal veto over the sale. Thus, the elements of an agency relationship are indisputably established by the evidence. See Campbell v. Hamilton, 632 S.W.2d 633, 634-35 (Tex. App. Dallas 1982, writ ref'd n.r.e.). Hallberg's statements to McEathron during the negotiations for the sale are squarely within the scope of the agency created to sell the vehicle. Thus, the evidence conclusively established that Hallberg was Norcross' agent and was acting within the scope of the agency. There was no need to submit this issue to the jury. Points one and two are overruled.

The next four points complain about the court's charge in implementing this conclusion of agency , i.e., not conditioning the questions on whether Hallberg was "acting as an agent for Jane H. Norcross" (point 3); "form" of the questions (point 4); failure of the questions to require a finding of liability of both Norcross and Hallberg or neither (point 5); and failure to submit instructions and definitions on the agency theory (point 6).

Because the court's conclusion regarding the agency relationship between Norcross and Hallberg has been upheld, points three and six must be overruled as "only disputed issues must be submitted to the jury." See Stanley Boot Co., 847 S.W.2d at 223. The issue of the agency relationship is not subject to dispute under the state of the facts presented, and there was no issue for the jury's determination. Similarly, because there was no need for a question regarding the agency theory, there is no need for any instructions or definitions on the topic. See Moody v. EMC Services, Inc., 828 S.W.2d 237, 244 (Tex. App. Houston [14th Dist.] 1992, writ denied). The objections raised in points four and five were neither raised in the trial court nor briefed in this court. Therefore, these complaints are waived, and points four and five are overruled. See Tex. R. Civ. P. 274; Tex. R. App. P. 52(a).

In point seven Norcross complains that the court failed to provide a standard to guide the jury's consideration of punitive damages. Norcross raised this same complaint in the trial court. As a result of her objection, the court rewrote the charge to the jury regarding additional damages. The form of the instructions provided to the jury was that suggested by Norcross' attorney at the charge conference. The instructions outlined the factors that the jury could consider in determining the amount of additional damages suitable for the case in generally the same terms as found in Alamo Nat. Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). In her brief in this court, Norcross makes no effort to explain how the instruction she requested in the trial court is now erroneous. In fact, the argument in her brief does not shed any light whatsoever on the complaint contained in the point of error. Because she requested the instruction as it was given and because her brief does not contain argument in support of the point of error, this complaint is waived, and point seven 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 January 19, 1994

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