Opinion
No. 05-02-00894-CV.
Opinion issued March 31, 2003.
Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-01-3651-c.
Affirmed in part; Reversed and remanded in part.
MEMORANDUM OPINION
In two issues, Len Vinsko, individually and d/b/a Len Vinsko Associates (Vinsko), challenges the trial court's grant of summary judgment in favor of ITT Education Services, Inc., individually and d/b/a ITT Technical Services, a Delaware Corporation (ITT). In his first issue, Vinsko contends (1) ITT failed to conclusively prove ITT's employees did not have authority to contract with Vinsko and that ITT did not ratify the contract with Vinsko and (2) ITT failed to challenge Vinsko's cause of action under article 5221a-7 of the revised civil statutes. In his second issue, Vinsko argues the trial court erred in granting ITT's subsequent no-evidence motion for summary judgment because there was more than a scintilla of evidence to support Vinsko's claims for quantum meruit and promissory estoppel. In one cross-issue, ITT complains the trial court erred by considering Vinsko's summary judgment evidence produced in response to ITT's first motion for summary judgment because Vinsko failed to specifically set forth in the response the evidence that raised a material issue of fact on each claim. We affirm the trial court's judgment on Vinsko's quantum meruit, promissory estoppel, and statutory causes of action. We reverse the summary judgment on Vinsko's breach of contract cause of action because ITT failed to conclusively establish its employees did not have apparent authority to contract with Vinsko. We remand this case to the trial court for further proceedings consistent with this opinion.
Factual and Procedural Background
In January 2001, Vinsko, a recruiter, contacted ITT and requested to be forwarded to the person responsible for recruiting. Vinsko was transferred to Bill Bodie, ITT's chairman of electronics and one of three individuals employed by ITT who were responsible for scheduling interviews. At Bodie's request, Vinsko sent Tracey Edwards's and another individual's resumes to Bodie by facsimile. Vinsko testified he attached his fee schedule to the resumes.
On February 5, 2001, William Holler was hired as ITT's director of education. Holler discussed revisions to Edwards's resume with Vinsko and, after Edwards had at least two preliminary interviews with ITT's employees, also discussed salary ranges for Edwards with Vinsko. Edwards was finally required to interview with Maurine Clements, ITT's chairman, and Clements offered Edwards a teaching position.
Holler told Vinsko that ITT could not locate the fee schedule and needed information regarding Vinsko's fee. After negotiations with Holler, Vinsko agreed to a fee of twenty percent of Edwards's compensation for the first twelve months of employment. Holler then presented the fee to Clements, who told Holler that ITT did not have a written contract with Vinsko and that ITT would not pay the fee.
Vinsko sued ITT, asserting causes of action for breach of contract, quantum meruit, and violation of Texas Revised Civil Statute article 5221a-7(3)(b)(1) (Vernon 1987). ITT filed a motion for summary judgment on all claims on grounds neither Holler nor Bodie had actual or apparent authority to contract on behalf of ITT. Before the summary judgment hearing, Vinsko amended his petition, adding a cause of action for promissory estoppel. The trial court granted summary judgment on Vinsko's breach of contract and statutory claims.
Texas Revised Civil Statute article 5221a-7(3)(b)(1) prohibits an employer seeking employees from making any false statement or concealing any material fact for the purpose of obtaining employees by or through a personnel service.
ITT then filed a no-evidence motion for summary judgment on Vinsko's quantum meruit and promissory estoppel claims, contending Vinsko had no evidence (1) that Vinsko's services were for the benefit of ITT; (2) that Vinsko reasonably notified ITT that Vinsko expected ITT to pay for Vinsko's services; (3) of the value of the services Vinsko performed for ITT; or (4) that ITT made promises to Vinsko that Vinsko reasonably relied upon. The trial court granted summary judgment on both causes of action, and Vinsko appealed.
Standard of Review
Under traditional summary judgment standards, a party moving for summary judgment must establish its right to summary judgment on the issues presented to the trial court by conclusively proving all elements of the movant's claim or defense as a matter of law. Tex.R.Civ.P. 166a(b); Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000). Because a no-evidence motion for summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence judgment as we apply in reviewing a directed verdict. Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.).
First Motion for Summary Judgment
A. Type of Motion
The parties dispute whether ITT's first motion for summary judgment was a traditional motion for summary judgment or a no-evidence motion for summary judgment. While we recognize ITT contended in the "Arguments Authorities" section of its motion for summary judgment that there was no evidence of a contract, the motion, read in its entirety, asserts ITT's employees did not have actual or apparent authority to contract for ITT as a matter of law. When it is not readily apparent that a motion for summary judgment is a no-evidence motion, "the court should presume that it is filed under the traditional summary judgment rule and analyze it according to those well-recognized standards." Michael v. Dyke, 41 S.W.3d 746, 751 (Tex.App.-Corpus Christi, no pet.). We conclude ITT's first motion was a traditional motion for summary judgment.
B. Summary Judgment Evidence
Both parties filed objections to the other party's summary judgment evidence. The trial court did not rule on the objections, and both parties reassert their objections on appeal.
Vinsko argues that Clements's affidavit is conclusory, incredible, and not susceptible to being readily controverted. An objection that the affiant is an interested witness is an objection to a defect in form in the affidavit and must be preserved in the trial court. Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Because Vinsko failed to obtain a ruling on this objection in the trial court, it has been waived. Tex.R.App.P. 33.1.
Vinsko's objection that Clements's affidavit is conclusory is a defect in substance and may be raised for the first time on appeal. Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso 2002, no pet.). In her affidavit, Clements indicated she was ITT's director and was familiar with the circumstances surrounding Edwards's employment. Clements denied that Holler or Bodie had the authority to enter into an agreement with a recruiter for the referral of prospective candidates, to contract with Vinsko on behalf of ITT, or to make representations to Vinsko regarding how ITT worked with recruiters or ITT's employment practices. It is difficult to see how ITT could have established a lack of authority other than by having an individual with knowledge of the employee's authority state what tasks the employee was not authorized to perform. See Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 514 (Tex.App.-Corpus Christi 2002, no pet.); Suarez v. Jordan, 35 S.W.3d 268, 271, 273 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (agent's testimony he had no authority to sign agreement sufficient to establish principal not bound by agent's conduct). Clements's affidavit was not conclusory.
ITT moved to strike Vinsko's summary judgment evidence because Vinsko failed to specifically state in his response what portion of the attached summary judgment evidence raised an issue of fact on each cause of action. The trial court did not abuse its discretion by deciding to review Vinsko's response. Simplified Telesys, Inc. v. Live Oak Telecom, L.L.C., 68 S.W.3d 688, 691 (Tex.App.-Austin 2000, pet. denied). ITT's cross-issue is overruled.
ITT objected to the trial court's failure to rule on the motion to strike, thereby preserving the issue for appellate review. Tex. R.App.P. 33.1(a)(2)(B).
C. Grounds for Motion
ITT moved for summary judgment on grounds that neither Holler nor Bodie had authority to contract with Vinsko on behalf of ITT or to make representations to Vinsko regarding ITT's hiring practices or procedures for dealing with recruiters. Absent authority, an agent's actions do not bind a principal. Suarez, 35 S.W.3d at 272-73. Accordingly, if neither Bodie nor Holler had authority to contract with Vinsko on ITT's behalf, ITT is not bound by the purported agreement.
1. Actual Authority
Actual authority is authority the principal intentionally conferred on the agent or allowed the agent to believe was conferred. Ebner v. First State Bank, 27 S.W.3d 287, 300 (Tex.App.-Austin 2000, pet. denied). Actual authority includes both express and implied authority. Coker v. Cramer Fin. Group, Inc., 992 S.W.2d 586, 594 (Tex.App.-Texarkana 1999, no pet.); Morey v. Page, 802 S.W.2d 779, 784 (Tex.App.-Dallas 1990, no writ). Clements's affidavit established neither Holler nor Bodie had actual authority to contract with Vinsko or to make representations to Vinsko regarding ITT's procedures for dealing with recruiters or ITT's employment practices.
Vinsko offered summary judgment evidence that when he contacted ITT and requested to be transferred to the person in charge of recruiting, he was transferred to Bodie. While this evidence established Bodie had the authority to accept resumes and commence the interview process, it did not raise a material issue of fact on whether Bodie had actual authority to contract with Vinsko on behalf of ITT. In fact, Bodie testified he did not have the authority to even make a final decision on Edwards's hiring, but was only responsible for initially screening the candidates.
Vinsko relies on Holler's title of director of education to claim there is a material issue of fact regarding Holler's actual authority to contract on behalf of ITT. However, nothing about this title confers authority on Holler to contract with Vinsko on ITT's behalf. See Pankow v. Colonial Life Ins. Co., 932 S.W.2d 271, 276 (Tex.App.-Amarillo 1996, writ denied) ("[W]hile the posts held by the individuals undoubtedly encompassed authority to act on behalf of [principal] in some degree, nothing illustrated that it included the power to change policy terms."). Vinsko failed to raise a material issue of fact that either Holler or Bodie had actual authority to contract on behalf of ITT.
2. Apparent and Ostensible Authority
Regardless of the term used, apparent authority is based upon the doctrine of estoppel. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998); Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984). A party seeking to charge the principal for the conduct of an agent based on apparent authority must establish either the principal knowingly permitted the agent to hold himself out as having authority or conduct by the principal which would lead a reasonably prudent person to believe the agent had the authority he purported to exercise. Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981); Ebner, 27 S.W.3d at 300.
Apparent authority is determined by looking to the acts of the principal and ascertaining whether that conduct would lead a reasonably prudent person using diligence and discretion to suppose the agent had the authority the agent purported to exercise. NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996) (per curiam). The party dealing with the agent has the duty to ascertain both the fact and the scope of the agent's authority. Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 237 (Tex.App.-Houston [14th Dist.] 1996, writ denied).
Vinsko contacted ITT and requested to be transferred to the person responsible for recruiting. Vinsko was transferred to Bodie, and Bodie admitted he was one of three individuals employed by ITT who were responsible for recruiting. Bodie requested Vinsko provide ITT the resumes of Edwards and another candidate. Vinsko testified he forwarded to Bodie a fee schedule that detailed Vinsko's fee for placing a prospective employee with ITT. Although Vinsko never received a signed fee agreement from ITT, he testified that once ITT started "interviewing the candidates, we're rolling." Vinsko indicated it was not unusual for a prospective employer to fail to return a signed fee schedule.
Vinsko had multiple conversations with Holler, ITT's director of education, about Edwards's resume, the scheduling of Edwards's interviews, and a salary range Edwards would accept. Further, after Vinsko's negotiations with Holler, Vinsko believed ITT had agreed to pay Vinsko a fee of twenty percent of Edwards's salary for the first twelve months of employment.
Vinsko's summary judgment evidence that (1) an ITT employee transfered Vinsko to Bodie in response to Vinsko's request to talk to the person responsible for recruiting and (2) Bodie's and Holler's titles and responsibilities raised a material issue of fact whether Bodie or Holler were clothed with authority to contract with Vinsko. Because ITT failed to conclusively prove neither Bodie nor Holler had apparent authority to contract on behalf of ITT, the trial court erred in granting summary judgment on Vinsko's breach of contract claim.
3. Ratification
Vinsko next argues ITT failed to challenge Vinsko's claim ITT ratified the contract by hiring Edwards. Ratification is the adoption or confirmation, by one with knowledge of all material facts, of a prior act that did not then legally bind that person and which that person had the right to repudiate. Avary v. Bank of Am., N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied). Ratification is generally an affirmative defense with the party claiming ratification bearing the burden of proof of each essential element. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Avary, 72 S.W.3d at 787. Accordingly, Vinsko had the burden to raise a material issue of fact on whether ITT ratified the alleged contract. Motel Enters, Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex.App.-Houston [1st Dist.] 1990, no writ).
4. Statutory Cause of Action
Vinsko finally argues ITT's motion for summary judgment failed to challenge Vinsko's claims under article 5221a-7 of the revised civil statutes.
However, ITT moved for summary judgment on grounds neither Holler nor Bodie had actual or apparent authority to make any false statements or conceal any material fact regarding ITT's hiring practices or procedures for working with personnel agencies.
ITT clearly challenged the elements of Vinsko's statutory cause of action. We sustain Vinsko's first issue on grounds ITT failed to conclusively establish neither Holler nor Bodie had apparent authority to contract on behalf of ITT. We overrule Vinsko's first issue on all other grounds.
Second Motion for Summary Judgment
A. Quantum Meruit
To recover in quantum meruit, Vinsko must establish
(1) he furnished valuable services or materials;
(2)for ITT (the party sought to be charged);
(3) which services or materials were accepted, used, and enjoyed by ITT; and
(4) under such circumstances as reasonably notified ITT that Vinsko, in performing such services, was expecting to be paid by ITT.
Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990).
In its second motion for summary judgment, ITT alleged Vinsko had no evidence of the second and fourth elements and that Vinsko had no evidence of the value of his services. The proper measure of damages on a quantum meruit claim is the reasonable value of the services rendered. Black Lake Pipe Co. v. Union Constr. Co., Inc., 538 S.W.2d 80, 86 (Tex. 1976), overruled in part on other grounds, Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Coastal Chem, Inc. v. Brown, 35 S.W.3d 90, 101 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).
While Vinsko produced evidence of his standard charges under an employment contract, he produced no evidence that these charges were the reasonable value of any services rendered to ITT and testified that his standard charges were negotiable. The trial court did not err in granting summary judgment on Vinsko's quantum meruit claim.
B. Promissory Estoppel
To recover on his promissory estoppel claim, Vinsko was required to establish that
(1) ITT made a promise to Vinsko;
(2) it was foreseeable to ITT that Vinsko would rely on that promise; and
(3) Vinsko substantially relied on the promise to his detriment.
English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983).
ITT moved for summary judgment on Vinsko's promissory estoppel claims on grounds Vinsko had no evidence ITT made a promise to compensate Vinsko. Vinsko relies on his initial conversation with Bodie as a promise by ITT to compensate Vinsko if ITT hired Edwards.
The summary judgment evidence established Bodie was responsible for scheduling initial interviews of prospective employees and had the authority to request Vinsko forward a copy of Edwards's resume. However, Bodie had never worked with Vinsko on a previous placement and had only worked with a recruiter on a few occasions.
Vinsko's summary judgment evidence reflects that recruiters have two types of agreements: one in which the employer pays the placement fee and one in which the candidate pays the placement fee. Although Vinsko stated he works only on placements in which the employer pays the fee, there was no summary judgment evidence that Bodie was aware of the type of agreement Vinsko had with Edwards when Bodie requested Edwards's resume. Accordingly, Bodie's request that Vinsko send Bodie a copy of Edwards's resume is no evidence of a promise by ITT to compensate Vinsko.
Vinsko also points to his conversation with Holler regarding Vinsko's fee as a promise by ITT to compensate Vinsko. However, this conversation occurred after ITT offered Edwards a teaching position and after Vinsko performed all acts relating to the placement of Edwards. Accordingly, Vinsko could not have relied on this conversation in deciding to proceed with placing Edwards at ITT.
The trial court did not err in granting ITT's no-evidence motion for summary judgment on Vinsko's quantum meruit and promissory estoppel claims. We overrule Vinsko's second issue.
Conclusion
We affirm the trial court's judgment on all issues other than whether Holler or Bodie had apparent authority to contract on behalf of ITT. We remand this case to the trial court for further proceedings consistent with this opinion.