IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 29, 2004
______________________________
IN THE MATTER OF THE MARRIAGE OF DALE LANIER WILSON AND BRIDGET COLLEEN WILSON AND IN THE INTEREST OF LONDON ANTHONY ARCHER WILSON
AND AZZAN LUKE WILSON, MINOR CHILDREN
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 49,607-C; HONORABLE JOHN T. FORBIS, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Presenting three issues, Dale Lanier Wilson challenges the jury finding designating Bridget Colleen Wilson as joint managing conservator with the exclusive right to determine the domicile of the children of the marriage. By his first issue, Dale contends the jury finding awarding Bridget the exclusive right to determine the domicile of the children is against the great weight and preponderance of the evidence. By his second issue, he contends the trial court abused its discretion in admitting evidence of his extramarital affairs while he was married to his first wife some four years before the birth of the children the subject of this suit and almost ten years from the date of trial, and by his third issue contends the trial court abused its discretion in allowing an expert to testify for Bridget even though the expert was not designated as an expert witness by her in response to his proper request for disclosure. We affirm.
Before his marriage in 1993 to Bridget, Dale had one son by his first marriage. During his marriage to Bridget, London was born in 1996 and Azzan was born in 1999. Dale filed his original petition for divorce on February 20, 2001, alleging no fault grounds and adultery. Among other things, Dale sought to be appointed temporary and permanent managing conservator of the children. Acting upon Bridget's motion for psychological examination, the trial court appointed Edwin Basham, EdD to interview, examine, and evaluate the parents and children and file a written report which he filed on June 24, 2002.
Following jury selection, testimony commenced on September 17, 2002, and the case was submitted to the jury on September 19. As material to the question of joint managing conservatorship of the children and which parent should have the exclusive right to determine the domicile of the children, the court's charge was crafted as suggested by PJC 215.9A and question 2 of PJC 216. (1) Among other instructions applicable to our review, the trial court instructed the jury as follows:
- The best interest of the children shall always be the primary consideration in determining questions of managing conservatorship and questions of possession of and access to the children.
- You shall appoint both parents Joint Managing Conservators unless you find that such an appointment is not in the best interest of the children. In making this determination, you shall consider all of the following factors: (2)
- In determining which party to appoint Sole Managing Conservator, or to appoint Joint Managing Conservator, who will have the exclusive right to establish the residence of the children and with whom the children will primarily reside, you shall consider the qualification of each party without regard to the gender of the party or the children or the age of the children.
- In determining which party will establish the primary legal residence of the children, you shall consider the qualifications of each party without regard to the gender of the party or the children or the age of the children.
By their answers, the jury found (1) Dale and Bridget should be appointed joint managing conservators, (2) the children should primarily reside with Bridget, and (3) Bridget should be entitled to establish the primary legal residence of the children if limited to Randall County and contiguous counties.
By his first issue, Dale contends the evidence was factually insufficient to support the jury finding that Bridget should be awarded the exclusive right to determine the domicile of the children. We disagree.
Counsel for the parties recognize that the appropriate standard of review is set out in Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); and Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), and that Dale must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dale also has the burden to demonstrate why the evidence that does not support the ruling is deficient when compared to the other evidence of record. In re T.M., 33 S.W.3d 341, 349 (Tex.App.--Amarillo 2000, no pet.).
Dale suggests that the factor in determining conservatorship is set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), and section 153.002 of the Texas Family Code. However, the Holley factors were not submitted with the charge. Further, the jury was instructed they should "consider the qualifications of each party without regard to the gender of the party or the children or the age of the children" in answering the question of the children's primary residence. Because neither party presented any objections to the charge or instructions, we will measure the evidence against the statement of law contained in the charge even if defective. Household Credit Services, Inc. v. Driscol, 989 S.W.2d 72, 88 (Tex.App.--El Paso 1998, pet. denied), citing Sage Street Associates v. Northdale Const. Co., 863 S.W.2d 438, 447 (Tex. 1993).
The jury finding that both parents should be appointed joint managing conservators necessarily implies a sub-finding that the appointment was in the best interest of the children. Dale limits his complaint to the jury finding that the children should primarily reside with Bridget and does not complain of her appointment as joint managing conservator. As applicable to this question, the court instructed the jury:
Joint Managing Conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the children to each of the joint conservators; ordinarily the best interest of the child will require the designation of a primary residence for the children.
(Emphasis added). Accordingly, in our review of Dale's argument that the finding is against the great weight and preponderance, we must also review the evidence of the qualifications of each parent.
Dale's argument commences with the best interest of the children analysis in Holley. 544 S.W.2d at 371-72. However, because the Holley factors were not included in the charge to the jury, we do not test the evidence before the jury by the Holley criteria. By his analysis Dale then emphasizes isolated instances of Bridget's intoxication and association with a male friend with a criminal record. The evidence demonstrated that both parents had education beyond high school and held good jobs. By his brief, Dale does not attempt to demonstrate why the evidence that does not support the finding is deficient when compared to the other evidence in the record. In re T.M., 33 S.W.3d at 349. From our review of the record, it appears that Bridget has maintained a responsible teaching position during the marriage, managed employees and has missed minimum days at her job. A former co-worker who had been terminated by Bridget, testified that Bridget was a good worker and mother.
Pursuant to the court order for psychological examination, Dr. Basham interviewed the parents and the children. (3) Among other things, his written report indicated:
- neither parent has a history of serious mental or emotional problems, and
- the parents are cooperating with the temporary visitation schedule and appear to be able to communicate with each other regarding the important issues about the children.
Although the report noted Bridget admitted occasional lapses in judgment, it also indicated that she was an emotionally sensitive and caring mother. The report further established that Dale is a highly involved and responsible father.
Considering the instructions to the jury, Dale does not contend the jury finding appointing Bridget as joint managing conservator was error, and the absence of an explanation why the finding is deficient when compared to the other evidence in the record, we conclude that the jury answer to question two was not against the great weight and preponderance of the evidence. Issue one is overruled.
By his second issue, Dale contends the trial court erred in admitting evidence of his extramarital affairs while he was married to his former wife. We disagree. By his pleadings, Dale made Bridget's extramarital affair an issue. Also, when Dale called his former wife as a witness during his case-in-chief, he sought to establish by her testimony that he was a good father and tried to instill moral values in their son. Then, during cross-examination, Bridget's attorney asked Dale's former wife
[w]as it not an immoral act on Dale's part that caused you some problems during your marriage?
After a conference out of the presence of the jury, the trial court overruled Dale's objection. Among other things, the trial court noted that Dale had opened the door and allowed questions which established that Dale also had an affair during his first marriage. Having placed his own conduct in issue by the testimony of his former wife, he waived any objection by inviting the alleged error of which he now complains. See General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993), cert. dism'd, 510 U.S. 985, 114 S. Ct. 490, 126 L. Ed. 2d 440 (1993).
Moreover, in Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998), the Court held that (1) evidentiary rulings are "committed to the trial court's sound discretion," (2) a trial court abuses its discretion when it rules "without regard for any guiding rules or principles," and (3) an appellate court must uphold the trial court's evidentiary ruling if there is any legitimate bases for the ruling. Considering that the best interest of the children was the court's "primary consideration in a suit affecting the parent-child relationship," see In re J.W., 113 S.W.3d 605, 612 (Tex.App.--Dallas 2003, pet. denied), and the major objective of this appeal and Dale's trial strategy to make morality an issue, we conclude the trial court did not abuse its discretion in admitting evidence of his extramarital affair. Issue two is overruled.
By his third issue, Dale contends the trial court abused its discretion is allowing Dr. Basham to testify when called by Bridget over his objection even though Dr. Basham was not designated as an expert witness by Bridget in response to Dale's proper request for disclosure. We disagree.
Dale does not contend the trial court erred in admitting the first amended order on motion for psychological examination or the four and one-half page written child custody evaluation of Dr. Basham, (4) but instead, limits his contention to the admission of Dr. Basham's testimony. Although Dale does acknowledge that the propriety of the admission of evidence is governed by an abuse of discretion standard, Gee v. Liberty Mut. Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989), he suggests that the application of Rule 193.6(a) of the Texas Rules of Civil Procedure is a case of first impression. In its current form, Rule 193.6(a) excludes evidence not timely identified unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. (5)
The expert's involvement was developed outside the presence of the jury. According to the evidence, on March 12, 2002, the trial court appointed the expert for a psychological examination of the parties and the order was approved by both counsel. Bridget's attorney requested the trial court take judicial notice of the file which contained the order appointing the expert and his report. Among other things, the order directed that a detailed written report of the evaluation by the expert be provided to all parties before March 30, 2002. Although Dale designated Dr. Basham as a person with knowledge and potential witness, Bridget did not list nor designate the expert on her supplemental designation. Out of the presence of the jury, Bridget's attorney argued that designation of the court ordered expert was unnecessary or that it was unnecessary because Dale had designated the expert. Further, he argued that because a copy of the report had been filed Dale was not surprised. At the conclusion of the hearing, the trial court expressly found (1) good cause was shown by the fact that Dale designated the expert; and (2) that the element of surprise was removed because Dale had designated the expert as a witness and the report was part of the record.
In Mares v. Ford Motor Co., 53 S.W.3d 416, 419 (Tex.App.--San Antonio 2001, no pet.), in considering a somewhat similar question regarding Rule 193.6, the court concluded that a discovery sanction is reviewed under an abuse of discretion standard and that the reviewing court must determine whether the trial court's action was arbitrary or unreasonable. Given that Dale had actual notice (6) of the expert's opinion and the written report several months before trial, had in fact designated the expert as a person with knowledge, and the expert was of the opinion that (1) neither parent shows any likelihood of being abusive or neglectful toward the children, and (2) both parents have a pattern of close involvement with the children and appear to have provided adequate care for the children, and (3) both children appear strongly attached to both parents, and considering that the best interest of the children was of utmost importance, we conclude that the trial court did not abuse its discretion in admitting Dr. Basham's testimony. Issue three is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. References are to Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges, (Family ed. 2002).
2. (1) whether the physical, psychological, or emotional needs and development of the children will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the children and reach shared decisions in the children's best interest; (3) whether each parent can encourage and accept a positive relationship between the children and the other parent; (4) whether both parents participated in children-rearing before the filing of the suit; (5) the geographical proximity of the parents' residences; (6) not applicable because of age of children; and (7) any other relevant factor.
3. Six hour interview with Dale and seven hour interview with Bridget.
4. Bridget's exhibits 2 and 3 respectively.
5. A finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. See Rule 193.6(b).
6. For purposes of pretrial procedure, the rules make no distinction in actual or constructive notice. A. Copeland Enterprises, Inc. v. Tindall, 683 S.W.2d 596, 597 (Tex.App.--Fort Worth 1985, writ ref'd n.r.e).
the rental contracts were not binding on Verizon and, therefore, there was no enforceable contract upon which Kan-Pak could assert its breach of contract action.
When both parties to a suit move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one party summary judgment and denies the other, we review both parties’ summary judgment evidence, determine all questions presented, and render the judgment the trial judge should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). When the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on any meritorious ground expressly presented in the motion and which is preserved for appellate review. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Verizon moved for summary judgment on both traditional and no-evidence grounds, while Kan-Pak’s motion asserted only traditional summary judgment grounds. See Tex. R. Civ. P.166a. We review a summary judgment de novo to determine whether the movant has established its right to summary judgment as a matter of law. See Dallas Cent. Appraisal Dist. v. Cunningham, 161 S.W.3d 293, 295 (Tex.App.–Dallas 2005, no pet.). In reviewing a summary judgment, we must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005).
Enforceability of the Rental Contracts
Verizon contends that it is entitled to summary judgment because it established, as a matter of law, that GLM had no authority to enter into contracts on Verizon’s behalf and, therefore, the rental contracts are not enforceable against Verizon.
An agent cannot bind a principal unless the agent has actual or apparent authority to do so. See Lifshutz v. Lifshutz, 199 S.W.3d 9, 22 (Tex.App.–San Antonio 2006, pet. denied). Actual authority arises when the principal intentionally confers authority upon the agent or intentionally or by want of ordinary care allows the agent to believe he has authority. See id. Apparent authority exists when the principal’s acts would lead a reasonably prudent person to believe that the agent had authority to act on behalf of the principal, the principal has either affirmatively held out the agent as possessing authority or knowingly and voluntarily permitted the agent to act in an unauthorized manner, and the party relying on the agent’s apparent authority must have ascertained the fact and scope of the agent’s authority. See Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 353 (Tex.App.–Fort Worth 2007, pet. dism’d by agr.). Only the actions of the principal can give rise to apparent authority; actions or representations of the agent have no effect on the determination. See id. Under either theory, the party alleging agency has the burden to prove its existence. Id. at 352.
In the present case, there is no evidence in the record that would raise a fact issue as to whether GLM had actual authority to contract on behalf of Verizon. The only evidence relating to the actual authority that Verizon intentionally conferred on GLM is the Waste Removal and Recycling Consultant Agreement between Verizon and GLM and a letter of authorization that Verizon gave to GLM to present to potential vendors. Each of these documents expressly provide that GLM was not authorized to enter into any agreement or contract for services. Because this right was expressly denied GLM, we cannot conclude that Verizon intentionally conferred authority to contract to GLM, intentionally allowed GLM to believe that it had authority to contract on behalf of Verizon, or that Verizon failed to exercise the degree of care necessary to prevent GLM from believing that it had authority to contract on behalf of GLM. Thus, we agree with Verizon’s summary judgment contention that it established, as a matter of law, that GLM did not have actual authority to contract on Verizon’s behalf and, thus, Kan-Pak’s breach of contract claims cannot be founded on the basis of GLM’s actual authority to enter into the rental contracts on Verizon’s behalf.
As to GLM’s apparent authority, we are constrained to review only the evidence of the actions of Verizon in determining whether Kan-Pak could reasonably believe that GLM had authority to enter into the rental contracts on behalf of Verizon. See id. at 353. The evidence of Verizon’s actions as it relates to whether they would lead a reasonably prudent person to believe that GLM was acting on Verizon’s behalf is the letter of authorization that specifically defines the scope of GLM’s agency and expressly prohibits GLM from contracting on Verizon’s behalf. There is no evidence that Verizon held GLM out as having authority to contract on its behalf. Most significantly, however, is that there is no evidence that Kan-Pak ascertained the fact and scope of GLM’s authority, which is a required element of a claim of apparent authority. See id. Kan-Pak was notified, by the letter of authorization, that GLM did not have authority to bind Verizon to a contract and, further, there is no evidence that Kan-Pak took any action to ascertain that GLM had been granted greater authority than what was expressly identified in the letter of authorization. Because there is no evidence to support one or more elements of a claim that Verizon is bound by the rental contracts because GLM had apparent authority to contract on behalf of Verizon, Kan-Pak’s breach of contract claims may not rest on the apparent authority of GLM to enter into the rental contracts on behalf of Verizon.
Ratification
However, even though Verizon is not bound by the rental contracts based on the actual or apparent authority of GLM to contract on Verizon’s behalf, Verizon would still be bound by the contracts if it acted in a manner that ratified these contracts. In its motion for summary judgment, Kan-Pak contends that Verizon ratified the rental contracts by directly making 156 monthly payments under the rental contracts over the course of five to seven years. Kan-Pak further cites evidence that GLM paid another 148 monthly payments. By its summary judgment motion, Verizon contends that its actions were insufficient as a matter of law to ratify the rental contracts and that it could not have ratified the rental contracts before December 2006 because it was not aware of the material terms of the contracts. Remaining mindful that this issue is presented in the context of competing motions for summary judgment, we are required to examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See City of Keller, 168 S.W.3d at 824-25.
Ratification of a contract occurs when a party recognizes the validity of the contract by acting under the contract, performing under the contract, or affirmatively acknowledging the contract. Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex.App.–Austin 1999, pet. denied). However, a party can only ratify a contract if, at the time of ratification, it knew all of the material terms of the contract. See T & R Assocs., Inc. v. City of Amarillo, 688 S.W.2d 622, 630 (Tex.App.–Amarillo 1985, writ ref’d n.r.e.). Thus, if a party acts in a manner that recognizes the validity of a contract with full knowledge of the material terms of the contract, the party has ratified the contract and may not later withdraw its ratification and seek to avoid the contract. See Spellman v. Am. Universal Inv. Co., 687 S.W.2d 27, 29-30 (Tex.App.–Corpus Christi 1984, writ ref’d n.r.e.). Any retention of the beneficial part of the transaction affirms the contract and bars rescission as a matter of law. Id. at 30.
Kan-Pak contends that Verizon’s direct payment of 156 monthly payments on three of the five contracts over the course of five to seven years coupled with GLM’s payment of 148 monthly payments on the remaining contracts is sufficient evidence to establish that Verizon ratified the rental contracts as a matter of law. However, there is no direct evidence that, prior to December 2006, Verizon had any knowledge of all of the material terms of the rental contracts. Certainly, there is no direct evidence that Verizon made those payments with knowledge that the terms of the rental contracts included a 60 month term that would be automatically renewed for an additional 60 month term if not terminated in writing within 60 days of the expiration of the initial 60 month term. For Verizon to have ratified the rental contracts, it would have to be shown that Verizon had knowledge of the material terms of the contract at the time that it performed under the contract. Because, prior to December 2006, there is no direct evidence that Verizon knew the material terms of the rental contracts that it was performing under, we cannot conclude that Verizon ratified the rental contracts as a matter of law by paying the monthly rental payments.
However, the evidence does establish that Verizon received copies of the rental contracts in December 2006. Verizon made no direct monthly rental payments under the rental contracts after it received copies of the rental contracts. Further, in February 2007, Verizon contacted Kan-Pak and expressly repudiated the rental contracts. Looking at the entire record and indulging all reasonable inferences in favor of Verizon, we conclude that Verizon took no action after December of 2006 that ratified the rental contracts prior to its express repudiation of those rental contracts in February 2007. Thus, Kan-Pak has failed to establish that it was entitled to summary judgment on the basis that Verizon ratified the rental contracts.
Verizon contends, in support of its motion for summary judgment, that the evidence establishes that it did not ratify the rental contracts as a matter of law. As discussed above, Verizon received services and made monthly rental payments under the rental contracts for five to seven years. Thus, Verizon retained some benefit under the rental contracts and the retention of this benefit is some evidence of ratification. See Spellman, 687 S.W.2d at 30. Further, Verizon contends that GLM had no authority to contract on Verizon’s behalf, yet Verizon acknowledges that it “knew that Kan-Pak had installed compactors at its sites and what Kan-Pak was charging for each month’s rent.” We believe that the presence of Kan-Pak’s compactors at five of Verizon’s Texas facilities and the invoicing of monthly rental charges gives rise to a reasonable inference that a reasonably prudent business would have investigated the basis of the monthly rental invoices and that, in the exercise of ordinary diligence, such an investigation would have revealed the terms of the rental contracts. While we cannot say that Verizon’s accepting of the benefits of the rental contracts, without proof of its knowledge of the material terms of the rental contracts, was a ratification of those contracts, we do conclude that Verizon’s conscious indifference to discovering the terms of the rental contracts gives rise to a reasonable inference that it knew or, at least, should have known the material terms of the rental contracts. As such, we conclude that the evidence raises a genuine issue of material fact as to whether Verizon ratified the rental contracts by making monthly rental payments under those contracts. Therefore, we affirm the trial court’s denial of Verizon’s motion for summary judgment.
Equitable Estoppel
Finally, Kan-Pak contends that Verizon is equitably estopped from denying the validity of the rental contracts based on its payment of the monthly rental charges.
A claim of equitable estoppel requires proof of five elements: (1) a false representation or concealment of material facts, (2) done with actual or constructive knowledge that the representation was false or that the concealed facts were material, (3) made to a party without knowledge or the means to discover the facts, (4) with intent that the other party act upon the representation or concealment, and (5) the other party detrimentally relied on the representation or concealment. See Hausman v. Hausman, 199 S.W.3d 38, 43 (Tex.App.–San Antonio 2006, no pet.).
However, in the present case, Kan-Pak has presented no evidence that would establish, as a matter of law, that Verizon made any knowing false representation or intentionally concealed any material facts relating to the rental contracts. As discussed above, it is possible that Verizon had knowledge of the terms of the rental contracts and continued to receive the benefit of those rental contracts, which might rise to the level of an intentional concealment of material fact, but the evidence does no more than raise an inference of that fact and, therefore, is insufficient to support Kan-Pak’s motion for summary judgment. Because Kan-Pak has failed to establish as a matter of law that Verizon is equitably estopped from denying the validity of the rental contracts, the trial court could not have granted summary judgment on that basis.
Conclusion
Because genuine issues of material fact are raised by the evidence as to each of the grounds upon which Kan-Pak moved for summary judgment and because the evidence does not establish that Verizon did not ratify the rental contracts as a matter of law, we reverse the trial court’s grant of summary judgment in favor of Kan-Pak and affirm the trial court’s denial of Verizon’s motion for summary judgment.
Damages
Finally, Verizon contends that the trial court erred in denying its motion for new trial because the trial court’s award of actual damages was not discounted to present value. Because we have reversed the trial court’s summary judgment, the award of damages has also been reversed. As such, the issue of the propriety of the trial court’s award of damages is not before this Court. The “judicial power does not embrace the giving of advisory opinions.” Gen. Land Office of Texas v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990) (quoting Fireman’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968)).
Conclusion
For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of Kan-Pak, affirm the trial court’s denial of Verizon’s motion for summary judgment, and remand the cause to the trial court.
Mackey K. Hancock
Justice