Wilma John D/B/A John Concrete Contractor v. Astro Cement ( 2002 )

NO. 07-01-0416-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 10, 2002
______________________________
WILMA JOHN, d/b/a JOHN CONCRETE CONTRACTOR,
Appellant
v.
J. ROBERT SEARCY, M.D., G. MICHAEL McDONALD, M.D.,
Individually, and CLEAR LAKE SURGICAL ASSOCIATES,
Appellee
_________________________________
FROM THE 149TH JUDICIAL DISTRICT FOR BRAZORIA COUNTY;
NO. 2274*RM97; HON. ROBERT E. MAY, PRESIDING
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MEMORANDUM OPINION
_______________________________
Before BOYD, C.J., QUINN and REAVIS, J.J.
Wilma John, d/b/a John Concrete Contractor (John), appeals from a final judgment
entered in favor of Clear Lake Surgical Associates (Clear Lake). Through that judgment,
the trial court awarded Clear Lake damages against John for breach of contract. The
contract involved the paving of a parking lot and was signed by both John and G. Michael
McDonald, M.D. The two issues on appeal concern the trial court’s jurisdiction to award
the judgment. That is, John asserts that it had no such jurisdiction because Clear Lake
lacked standing to sue (since McDonald did not designate that he signed the instrument
as an agent or officer of Clear Lake) and the parties could not confer standing via a
stipulation of the parties. We affirm the judgment.
The record contains a stipulation by the parties. Through that stipulation, the parties
agreed that McDonald was acting “as authorized agent on behalf of” Clear Lake, a
professional association, “in these matters.” So too did they agree that “Clear Lake . . . is
the Principal in its agreement with . . . John . . . .”
Next, authority holds that what a principal does through an agent it does itself.
Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 245 (Tex. App.–Amarillo 1994, no writ). Thus,
if the act in question involved the execution of a contract, logic and the foregoing authority
would dictate that the principal not only has a right or interest in the accord but also has
standing to enforce or protect that right or interest. And, this is true even if the principal is
undisclosed. See First Nat. Bank of Wichita Falls v. Fite, 131 Tex. 523, 115 S.W.2d 1105,
1109-10 (Tex. Comm’n App. 1938, opinion adopted) (holding that an agent may make a
contract for his undisclosed principal in his own name, and the principal may sue or be
sued on the contract); Sanroc Co. v. Roadrunner Transp., Inc., 596 S.W.2d 320, 322 (Tex.
App.–Houston [1st Dist.] 1980, no writ) (holding the same). So, to the extent that everyone
at bar agreed (through the stipulation) that McDonald acted as agent for Clear Lake when
the contract was executed, the contract vested Clear Lake with contractual rights. Having
such rights, Clear Lake was entitled to enforce them. And, the suit from which this appeal
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arose was simply an attempt by Clear Lake to do so by seeking damages from John for
breach of the accord.1
Accordingly, we overrule the contentions uttered by John and affirm the judgment
entered below.
Brian Quinn
Justice
Do not publish.
1
The stipulation executed by the parties served to illustrate the legal and factual relationship between
Clear Lake, McDonald, and J. Robe rt Sea rcy, M.D. T hat its effect was to also illustrate that Clear Lake had
an enforceable right in the contract does not mean that it was an imperm issible attempt to manufacture
jurisdiction where none existed. If this were not so, then m ost any stipulation of relevant fa ct that served to
aid one in pro sec uting a cau se o f action co uld be con sidered a s an attem pt to im perm issibly cre ate
jurisdiction. For instance, if the parties were to stipulate that the amount of damages were of a certain sum,
and that su m fell w ithin the court’s ju risdiction al lim its, one could then later say that the stipulation created
jurisdiction. T his result is un tena ble.
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