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Huynh v. Nguyen10/4/2005
uong's paperwork for her.
* Phuong believed that Thu was working for Valley because Thu acted so naturally and at ease and because she prepared paperwork.
* Phuong testified that no one other than Thu told her that Thu worked for Valley.
The law does not presume agency. Suarez v. Jordan, 35 S.W.3d 268, 272-73 (Tex. App.--Houston [14th Dist.] 2000, no pet.). Absent actual or apparent authority, an agent cannot bind a principal. Id. Both actual and apparent authority are created through conduct of the principal communicated either to the agent (actual authority) or to a third party (apparent authority). Id. Actual authority denotes authority that the principal intentionally confers upon the agent, or intentionally allows the agent to believe he has, or by want of ordinary care allows the agent to believe himself to possess. Id. In determining whether apparent authority exists, we look to the acts of the principal and ascertain whether those acts would lead a reasonably prudent person using diligence and discretion to suppose the agent had the authority to act on behalf of the principal. Id. Only the conduct of the principal may be considered; representations made by the agent of his authority have no effect. Id. Furthermore, the principal either must have affirmatively held the agent out as possessing the authority or the principal must have knowingly and voluntarily permitted the agent to act in an unauthorized manner. Id.
After reviewing the evidence properly before the trial court under the applicable legal standard, we conclude that Valley conclusively proved, as a matter of law, that Thu and Johnny were not agents or employees of Valley. See id. Most of the evidence upon which the Patients and Blue Cross rely to show agency relates to alleged statements by Thu, which are insufficient as a matter of law. Id. There is no evidence of acts by Valley that would lead a reasonably prudent person using diligence and discretion to suppose Thu had the authority to act on behalf of Valley. There is no evidence that Valley affirmatively held Thu out as possessing this authority or that Valley knowingly and voluntarily permitted Thu to act in an unauthorized manner. Therefore, we cannot count the contacts of Thu and Johnny with Texas as being contacts of Valley for jurisdictional purposes.
2. General Jurisdiction
The Patients and Blue Cross assert that the trial court may exercise personal jurisdiction over Valley under a general jurisdiction analysis based on the following contacts: (1) the contacts of Valley's alleged agent or employee Thu with Texas, (2) Valley's advertising in Texas, (3) the attendance of Valley employees at meetings in Dallas three years ago, (4) possible trips by Valley's financial director (Wendy Schneider) to Texas with Valley's founder and principal, Dr. Gene Zdenek more than five times, (5) Valley's treatment of more than thirty-five Texas residents at Valley's facility in the past five years, and (6) Valley's sending of eighteen claims to insurance carriers in Texas over the past five years.
As stated above, we cannot count the contacts of Thu with Texas as being contacts of Valley. As to advertising, the evidence conclusively proves as a matter of law that Valley did not conduct any advertising in Texas. Schneider testified that the possible five trips to Texas with Dr. Zdenek were on behalf of the Zdenek Eye Institute, not Valley. Reviewing the record evidence under the applicable standard of review, we conclude that the evidence conclusively proves as a matter of law that the nature and quality of Valley's contacts with this state do not rise to the level of continuous and systematic general business contac
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