                                                                             ACCEPTED
                                                                         04-15-00273-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                   10/12/2015 4:49:53 PM
                                                                          KEITH HOTTLE
                                                                                  CLERK

                      NO. 04-15-00273-CV

______________________________________________________________
                                                     FILED IN
                                           4th COURT OF APPEALS
            IN THE   FOURTH COURT OF APPEALSSAN ANTONIO, TEXAS
                                           10/12/2015 4:49:53 PM
                     SAN ANTONIO, TEXAS
                                               KEITH E. HOTTLE
                                                    Clerk
______________________________________________________________

          BUDDY CASTEEL AND JARET B. CASTEEL,

                                                 Appellants

                              V.

                      AMELIA STAYTON,

                                                  Appellee

_____________________________________________________________



                     BRIEF OF APPELLEE,
                      AMEILA STAYTON




                              BOBBY JACK RUSHING
                              Texas Bar No. 24062981
                              THE RUSHING LAW FIRM, PLLC
                              808 London Street
                              Castroville, Texas 78009
                              830-931-3800
                              210-579-6503 fax
                              bj@rushing-law.com
                              Attorney for Amelia Stayton
                                          TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED............................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT AND AUTHORITIES ........................................................................ 2

         I.        STANDARD OF REVIEW .................................................................. 2
         II.       Appellants failed to present sufficient evidence to show apparent
                   authority to bind the Stayton property to a new lease ........................... 3
         III.      Appellants were aware of the limitations of agent’s power .................. 6
         IV.       Appellants’ testimony was not credible ................................................ 7

PRAYER .................................................................................................................... 8

CERTIFICATE OF COMPLIANCE ......................................................................... 9

CERTIFICATE OF SERVICE .................................................................................. 9




                                                             ii
                                INDEX OF AUTHORITIES

Cases

Gaines v. Kelly, 235 S.W.3d 179 (Tex. 2007) ...................................................3, 5, 6

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ......................................... 3, 7

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (per curiam) .......................................... 2

Douglas v. Panama, 504 S.W.2d 776 (Tex. 1974) ................................................ 3, 6

Chastain v. Cooper & Reed, 257 S.W.2d 422 (Tex. 1953) ...................................... 3




                                                 iii
                        STATEMENT OF THE CASE

      Appellants Buddy Casteel and Jaret B. Casteel (“Casteels”) appeal the

judgment of the trial court granting an eviction and awarding possession of the

property Amelia Stayton.


                             ISSUES PRESENTED

      Did the trial court err in determining that Casteels presented insufficient

evidence to prove such conduct on the part of the Amelia Stayton as would lead a

reasonably prudent person to believe that Melissa Baugh had the authority to bind

Stayton’s property to the September 14, 2014 lease?


                           STATEMENT OF FACTS

      Casteels own and operate a commercial business in Leakey, Texas. RR 29-

30. Stayton was and is the record owner of the property where Appellants operate

their business. RR 13-15; P1.   Subsequent to the receipt of the notice to vacate

dated August 11, 2014, on September 1, 2014, Jaret Casteel contacted Amelia

Stayton in an effort to purchase the property, first offering $250,000, then

$400,000. RR 45-46; P1; D2. Stayton advised that there was a contract to sell the

property. D2. On September 8, 2014, Jaret Casteel sought an extension from

Stayton to remain on the property beyond the September 15th deadline. RR 47, D2.

On September 10, 2014, Jaret Casteel sought to continue leasing the property from
Stayton for $2,500 per month. RR, D2. In addition to the correspondence with

Amelia Stayton, Stayton testified that she had telephone conversations with Jaret

Casteel during this time frame in which she made clear her intent to sell the

property and that leading up to September 14, 2014. RR 60, 62. Casteels were

contacting her, the owner of the property, directly. RR 60, 62.


                          SUMMARY OF THE ARGUMENT

1.        The trial court properly concluded that Casteels’ evidence was insufficient to

prove such conduct on the part of the Stayton as would lead a reasonably prudent

person, using diligence and discretion, to suppose that Baugh had the authority to

bind Stayton’s property on September 14, 2014.

2.        Prior to signing the September 14, 2014 agreement with Baugh, Casteels

were aware of the limitations of her power.

3.        The trial court, as the sole judge of the credibility of the witness, had ample

reasons to doubt the veracity of the Casteels’ testimony.

                          ARGUMENT AND AUTHORITIES

     I.      STANDARD OF REVIEW

          When an appellant attacks the factual sufficiency of a trial court's finding on

an issue on which it had the burden of proof, the Court reviews the entire record to

determine whether the finding is so against the great weight and preponderance of

the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
                                             2
1986) (per curiam). The trial court, as the fact finder, is the sole judge of the

credibility of the witnesses and the weight to be given their testimony, and the

Court will not substitute its judgment for that of the trial court simply because it

would have reached a different conclusion on the facts. See City of Keller v.

Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

   II.      Appellants failed to present evidence sufficient to show apparent

            authority to bind the Stayton property to a new lease

         Appellants advance only an estoppel argument to assert their right to the

property, claiming that Amelia Stayton is charged with the conduct of Melissa

Baugh when Baugh apparently signed the handwritten lease of September 14, 2014

purporting to lease Stayton’s property for ten (10) years. See Appellants Brief, pp.

9-11. “Apparent authority is based on estoppel, and one seeking to charge a

principal through apparent authority of an agent to bind the principal must prove

such conduct on the part of the principal as would lead a reasonably prudent person

to suppose that the agent had the authority he purports to exercise.” Douglas v.

Panama, 504 S.W.2d 776, 778-79 (Tex. 1974). “Moreover, when making that

determination, only the conduct of the principal in relevant.” Gaines v. Kelly, 235

S.W.3d 179, 182 (Tex. 2007). “[T]he standard is that of a reasonably prudent

person, using diligence and discretion to ascertain the agent’s authority. Id. at 183

(citing Chastain v. Cooper & Reed, 257 S.W.2d 422, 427 (Tex. 1953)).


                                         3
      Stayton was and is the record owner of the property where Appellants

operate their business. RR14, 15; P1. Subsequent to the receipt of the notice to

vacate dated August 11, 2014, on September 1, 2014, Jaret Casteel contacted

Amelia Stayton in an effort to purchase the property, first for $250,000, then for

$400,000. RR 45-46; P1; D2. Stayton advised again that there was a contract to

sell the property. D2. On September 8, 2014, Jaret Casteel sought an extension

from Stayton to stay on the property. RR 47, D2. On September 10, 2014, Jaret

Casteel sought to continue leasing the property from Stayton for $2,500 per month.

RR47, D2. Amelia Stayton also testified that she had telephone conversations with

Jaret Casteel during this time frame in which she made clear her intent to sell the

property and that leading up to September 14, 2014, Casteels were contacting her

directly. RR 60, 62.

      The numerous contacts and requests directly with the owner of the property

leading up to September 14, 2014, coupled with the owner’s denials, made it

unreasonable for Casteels to believe that they could bind the property to a ten year

lease by seeking out Melissa Baugh for a signature on a handwritten agreement.

That handwritten agreement did not provide for the payment of utilities, the

insuring of the premises, nor did it have any hold harmless or indemnification

language. D4. In contrast, the prior written lease that expired in 2012 was a one

year, four page, typed agreement, which covered many of the terms such as


                                         4
utilities, insurance, and indemnification language one would expect to find in a

commercial lease. D1. Further, Appellants offered no evidence that there had ever

been a long term lease agreement with the current owner. RR 55-56.

      Appellants argue that their historical dealing with Baugh created a “lingering

apparent authority,” a phrase and concept which has no basis in Texas law. See

Appellants Brief, pp. 7-8. When making the determination of whether there was

apparent authority to bind the principal, “only the conduct of the principal is

relevant.” Gaines, 235 S.W.3d 179, 182 (Tex. 2007). Within the two weeks prior

to September 14, 2014 agreement that Casteels offer as their basis for a right of

possession, Jaret Casteel had contacted Stayton multiple times to inquire about

purchasing the property, extending Casteels’ possession beyond the deadline, and

attempting to enter into a new lease agreement at a higher rental amount. RR 45-

48; P4, D2. Stayton had advised that the property had a contract for sale, and that

there was a closing date set. RR60, 62; P4, D2. Casteels’ requests were denied.

The conduct of the principal, Stayton, at the relevant time, indicated that she was

not interested in keeping the Casteels as tenants and that she did not intend to keep

the property.

      The standard for Appellants, seeking to bind Stayton with the purported

actions of Baugh, is that of a reasonably prudent person, using diligence and

discretion to ascertain the agent’s authority. Gaines, 235 S.W.3d 179, 183 (Tex.


                                         5
2007).    Appellants used neither diligence nor discretion to ascertain whether

Melissa Baugh had authority to bind the property on September 14, 2014. Under

the facts of this case, the evidence established the contrary, that they were aware

Baugh did not have such authority because they had dealt directly with the owner

and had their requests for a new lease denied. Neither of the Casteels testified that

they made inquiry of Melissa Baugh’s authority when they signed the handwritten

agreement of September 14, 2014. Further, there was no testimony from Baugh, or

from the notary public whose stamp bears on the document, that Baugh actually

signed the document as written.       The trial court correctly concluded that a

reasonably prudent person with the knowledge Appellants had at the time would

not have believed they could enter into the September 14, 2014 agreement with

Baugh and that it would be enforceable against Stayton.

   III.   Appellants were aware of the limitations of agent’s power

   “It is also the rule that apparent authority is not available where the other

contracting party has notice of the limitations of the agent’s power.” Douglas at

779. For several weeks prior to September 14, 2014, Casteels were aware that the

owner of the property had a contract to sell the property and expected them to

vacate the premises as any month-to-month tenant.         RR 60, 62; P2, P4, D2.

Casteel was communicating directly with the owner. RR 45-48, 60, 62; P4, D2.

Despite Casteels’ efforts in engaging directly with the owner of the property, they


                                         6
were unable to lawfully obtain a new agreement to remain on the premises. In this

case, the principal denied their request thus putting Casteels on notice that there

would be no further agreement.

   IV.   Appellants’ testimony was not credible

   Jaret Casteel testified that he always thought that Melissa Baugh owned the

property in question.   RR 38. This testimony is contradicted by his actions in

early September of 2014. Even though he had received notices to vacate signed by

Melissa Baugh, in early September of 2014 he sought out Stayton to inquire about

the purchase of the property, to lease the property with new terms and additional

rent, and for permission to extend his stay on the premises. RR 45-48; P2, P4, D2.

There is no credible explanation of why he sought to engage Stayton if he believed

she was not the owner. He further testified to formerly having a five year lease on

the property that began sometime in 2007 or 2008, in addition to as many as six (6)

other leases from the early 2000’s. RR 42. None were offered as evidence. Jaret’s

father, Buddy Casteel, testified that the five year lease started earlier than 2005.

RR 54-55.     Buddy Casteel further denied having any communications with

Stayton. RR 54-57.      Stayton, on the other hand, recalled several conversations

connected to specific events with Buddy Casteel. RR 58-60.


      The trial Court, as the fact finder, is “the sole judge of the credibility of the

witnesses and the weight to be given their testimony.” City of Keller v. Wilson,
                                          7
168 S.W.3d 802, 819 (Tex. 2005). “Reviewing courts cannot impose their own

opinions to the contrary.” Id. The trial court had ample reason to doubt the

credibility of Casteels’ testimony. Further, the trial court had facts sufficient to

believe that a reasonably prudent person with the facts Casteels had available at the

time, would never have believed that Baugh could bind Stayton’s property to a ten

year lease.


                                     PRAYER

      For these reasons, Amelia Stayton, Appellee, requests that this Court affirm

the trial court’s decision in all respects. Appellee also requests any other relief to

which she may be entitled.


                                       Respectfully submitted,


                                       The Rushing Law Firm, PLLC
                                       808 London
                                       Castroville, Texas 78009
                                       (830) 931-3800 Telephone
                                       (210) 579-6503 Facsimile


                                       By:     /s/ Bobby Jack Rushing
                                              Bobby Jack Rushing
                                              State Bar No. 24062981
                                              Attorney for Appellee Amelia Stayton




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                        CERTIFICATE OF COMPLIANCE


       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
the brief contains 1793 words (excluding the caption, table of contents, index of
authorities, signatures, certificate of service and certificate of compliance). This is
a computer generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes which are 12-point typeface. This
certificate of compliance relied on the word count provided by the software used to
prepare the document.

                                          /s/ Bobby Jack Rushing
                                        Bobby Jack Rushing

                           CERTIFICATE OF SERVICE

      This certifies that the undersigned served this Brief of Appellee Amelia
Stayton electronically on the 12th day of October, 2015, on the following:

      CHRISTOPHER J. DEEVES
      1730 Pantheon Way, Ste. 110
      San Antonio, Texas 78232
      210 445-8807
      210 501-0915 fax
      chrisdeeves@att.net

      Kenneth Grubbs
      4241 Woodcock Drive, Ste. C-120
      San Antonio, Texas 78228
      210-490-1292
      210-499-4587 fax
      kengrubbs@sbcglobal.net


                                        By:    /s/ Bobby Jack Rushing
                                              Bobby Jack Rushing




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