PATEL LLC v. MUSTANG RENTAL SERVICES OF TEXAS LTD (2025)

OPINION

Appellee Mustang Rental Services of Texas, Ltd. d/b/a Mustang Rental Services (“Mustang”) sued appellants Sterling Engineering Group of Companies, LLC and Sandeep Patel (collectively, “Sterling”) for breaches of contract and guaranty to recover several unpaid invoices for heavy construction equipment rentals. The person who placed the orders in dispute was Sterling's subcontractor, George Giacona.¹ In three issues on appeal, Sterling asserts the evidence was legally and factually insufficient to support the jury's finding that George had authority to charge rental equipment to Sterling's account and the trial court erred when it refused to submit their proposed jury instruction. This case turns on whether Sterling's conduct led Mustang to reasonably believe George had the authority he purported to have. We affirm.

Background

Sterling is a structural engineering and construction company, and Mustang is a heavy equipment rental company. On January 31, 2014, Patel, as president of Sterling, entered into a contract with Mustang to rent heavy equipment. Pursuant to the billing instructions in the contract, Sterling did not require a purchase order before Mustang fulfilled a rental order. Patel also signed a document titled “Unconditional Continuing Guarantee,” personally guaranteeing payment of all outstanding balances on Sterling's account with Mustang.

In total, there were twenty-eight invoices generated for rental orders on Sterling's account. Between February and March 2014, there were sixteen orders on Sterling's account for two different projects: the West Road Project and the Bunker Hill Project. Fifteen of these orders were placed by George for the West Road Project, and Stan Robinson placed one order for the Bunker Hill Project. The invoices for the orders placed by George included a notation of “Verbal George,” indicating that George placed the orders over the phone. They also included George's telephone number. The invoice for the order placed by Stan included a similar notation of “Verbal Stan” and also included his telephone number. Of the fifteen invoices generated for the West Road Project for orders placed by George, eleven were paid in full by Sterling on March 31. The remaining four invoices for the West Road Project and a single invoice for the Bunker Hill Project were not paid at this time.

After Sterling's March 31 payment to Mustang, George continued to order rental equipment on Sterling's account. George placed nine orders for the Skinner Road Project in April 2014. It is undisputed Sterling is not the owner of the Skinner Road Project.² George also placed two additional orders for the Sterling West Road Project in June 2014. The remaining order for Sterling's West Road Project was placed by Freddie in May 2014.³ While Freddie's telephone number is included in the invoice, this is the only invoice that does not indicate the order was placed over the phone. Each of the eleven invoices for the orders placed by George after Sterling's March 31 payment showed George ordered the equipment over the phone, similar to the invoices previously paid by Sterling. On July 9, Sterling paid the five remaining unpaid invoices for the West Road and Bunker Hill Projects from February and March 2014, and the three new invoices generated by George and Freddie from May and June 2014 for the West Road Project. The nine outstanding invoices for the Skinner Road Project from April 2014 are the only invoices in dispute. Mustang sued Patel, as guarantor, and Sterling, among others, to recover the amounts due on the unpaid invoices based on a theory of apparent authority by a third party, George.

At trial, Patel testified that neither George nor Stan had authority to order equipment from Mustang on Sterling's behalf. However, Patel testified Sterling made the March 31 payment without inquiring into “who did what” because the rental equipment was used for Sterling's benefit. Patel explained that he did not learn about the additional equipment George charged to Sterling's account for the West Road and Skinner Road Projects until approximately May or June 2014. Sterling also paid these invoices relating to the West Road Project because the equipment was used for Sterling's benefit but refused to pay the invoices for the Skinner Road Project because the project did not belong to Sterling.

Tiffany Nowak, an employee of Sterling, also testified. Nowak handled the billing, accounts payable, accounts receivable, and payroll for Sterling. She testified that George had never been an employee of Sterling and was not authorized to charge equipment to Sterling's account. She explained when Sterling received invoices for the equipment rented by George in February and March for the West Road Project, the equipment had already been delivered and used at Sterling's jobsite. This is why Sterling paid the invoices. She further explained Sterling later received invoices for the Skinner Road Project in May 2014. Nowak was not familiar with this project and confirmed with Patel that this project did not belong to Sterling. Nowak and Patel then contacted George about the charges. Nowak asserted that neither she nor Patel took any further action after George stated he would pay the invoices for the Skinner Road Project. Nowak testified that she did not learn George had not paid the invoices until July, when she received an email from one of Mustang's employees requesting payment. Even then, Sterling paid the May and June 2014 invoices generated by George and Freddie for Sterling's West Road Project in July.

Audrey Cummings, an employee of Mustang, testified that George would call orders in to rent heavy equipment and charge the rentals to Sterling's account. According to Cummings, when someone called Mustang to order equipment and they had previously ordered equipment, Mustang assumed that the person had authority from the customer. Cummings also stated that Patel paid the invoices for the equipment rented by George for the West Road Project but did not pay the invoices for the Skinner Road Project. On cross-examination, Cummings admitted that no one from Sterling ever informed Mustang that George was an authorized user on the Sterling account. Cummings asserted that the only thing Sterling did to confer authority to George was make the March 31 payment. Mustang later learned that the Skinner Road Project was not Sterling's when Mustang attempted to collect the unpaid invoices. Sterling notified Mustang that it did not order any equipment and that George and Dr. Amin Karim (the alleged owner of the Skinner Road Project) were responsible for payment of the rented equipment for the Skinner Road Project.

Gabriel Rodriguez, another employee of Mustang, testified via video deposition. Rodriguez knew George as “George with Sterling” but did not explain what his belief was based on. He testified about the equipment George ordered for the Skinner Road Project. According to Rodriguez, George had previously rented equipment on behalf of Sterling. On cross-examination, Rodriguez admitted that Mustang never verified with Sterling that equipment ordered by George should be charged to Sterling's account.

Nikolas Sharpton, the last Mustang employee to testify, asserted that he also knew George as “George with Sterling.” According to Sharpton, George was an authorized user on Sterling's account because he placed the initial order. Thereafter, George rented more equipment for different job sites. Sharpton never had reason to believe that George was not a representative of Sterling because Sterling's account remained in good standing. Sharpton also testified that George signed an agreement authorizing Mustang to charge Sterling insurance coverage on any rented equipment. On cross-examination, Sharpton also acknowledged that no one at Sterling ever notified Mustang that George was an authorized user on its account.

At the conclusion of the testimony, the case was submitted to the jury. The jury returned a verdict in favor of Mustang and awarded $27,755.97 of the $39,651.38 sought by Mustang. The trial court signed a final judgment adopting the jury's verdict. Sterling filed motions for judgment notwithstanding the verdict and for new trial. The trial court denied both motions, and this appeal followed.

The Issues

On appeal, Sterling presents three issues for review:

1. Whether the evidence was legally sufficient to support the predicate finding that George had either actual or apparent authority to rent equipment from Mustang?

2. Whether the evidence was factually sufficient to support the predicate finding that George had either actual or apparent authority to rent equipment from Mustang?

3. Whether the trial court erred in refusing a jury instruction requiring the jury to evaluate if Mustang acted with “reasonable diligence” in determining George was authorized to charge equipment to Sterling's account?

Standards of Review

When examining a legal sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. We sustain a legal sufficiency or “no evidence” challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 719 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

In a factual sufficiency challenge, we consider and weigh all the evidence, both supporting and contradicting the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We will set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 407. The amount of evidence required to affirm is far less than the amount necessary to reverse a judgment. Harris Cty. v. Coats, 607 S.W.3d 359, 381 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The jury may accept or reject all or part of the testimony provided by any witness. See id. “A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within [a] zone of reasonable disagreement.” City of Keller, 168 S.W.3d at 822.

We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). The trial court has considerable discretion to determine proper jury instructions, and “[i]f an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper.” Id. (quoting La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)).

When a trial court refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. See Tex. R. Civ. P. 277; Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). For an instruction to be proper it must (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and evidence. See Tex. R. Civ. P. 278; Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009); Mandlbauer, 34 S.W.3d at 912. We will not reverse a judgment for charge error unless that error was harmful because it probably caused the rendition of an improper judgment or probably prevented the petitioner from properly presenting the case to the appellate court. See Tex. R. App. P. 44.1 (a).

Governing Law on Apparent Authority

Texas courts do not presume that an agency relationship exists. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007). Rather, if the existence of an agency relationship or the extent of the authority conferred is at issue, the party making the allegation has the burden of proving it by a preponderance of the evidence. Id. To establish an agency relationship, one must show a manifestation of consent by the purported agent to act on the principal's behalf and subject to the principal's control, together with a manifestation of consent by the purported principal authorizing his agent to act. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 697 (Tex. 2017).

Apparent authority is the power of an agent to affect the legal relations of the principal by transactions with a third party. Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984). An agent acting within the scope of his apparent authority binds the principal as if the principal itself had taken the action. Id. Apparent authority is based on estoppel, and only the conduct of the principal in leading a third party to believe that the agent has authority may be considered. Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007); NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996). Declarations of authority by the alleged agent, without more, do not establish either the existence or the scope of the alleged authority. Gaines, 235 S.W.3d at 183–84. The reviewing court instead looks to “acts of participation, knowledge, or acquiescence by the principal.” Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 672 (Tex. 1998). Without the principal's participation—either through its acts, or knowledge of and acquiescence in acts of the agent—no mere combination of circumstances, including acts of the purported agent that may mislead persons into a false inference of authority, however reasonable, will serve as the predicate for apparent authority. Expro Americas, LLC v. Sanguine Gas Expl., LLC, 351 S.W.3d 915, 925 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

Apparent authority arises either from (1) a principal knowingly permitting an agent to hold himself out as having authority, or (2) a principal's actions that lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority he purports to exercise. Gaines, 235 S.W.3d at 182. The applicable standard is that of a reasonably prudent person, using diligence and discretion to ascertain the agent's authority. Id. at 182–83. The principal's full knowledge of all material facts is essential to establish a claim of apparent authority. Id. Only the conduct of the principal is relevant. Id. “Thus, to determine an agent's apparent authority we examine the conduct of the principal and the reasonableness of the third party's assumptions about authority.” Id. at 183. The relevant issue is not merely the existence of an agency relationship, but rather the scope of that agency. Id. at 184. A party seeking to recover under an apparent authority theory must show justifiable reliance on the principal's words or conduct resulting in harm to the party. Expro Americas, 351 S.W.3d at 925.

A third party's “good faith” belief that one person is the agent of another is not sufficient to demonstrate the person's authority to bind the principal. Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 783 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Instead, the principal must communicate to the third party or take some action indicating that the person is authorized to act as an agent. Gaines, 235 S.W.3d at 182. The principal's “acts” include participation, knowledge, or acquiescence. Morris, 981 S.W.2d at 672. A party dealing with an agent must ascertain both the fact and the scope of the agent's authority, and if the party deals with the agent without having made such a determination, the party does so at its own risk. Suarez v. Jordan, 35 S.W.3d 268, 273 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Charge Error

As mentioned, Sterling challenges the sufficiency of the evidence to support the jury's finding of apparent authority. But before we measure the sufficiency of the evidence, we must first determine whether to measure the evidence by the charge as given or by the charge that Sterling requested. First, we determine if Sterling preserved error. If error is preserved, we then determine whether the trial court submitted an erroneous instruction to the jury.

Here, Sterling submitted a proposed jury instruction for evaluating whether George acted with apparent authority:

Did George Giancona [sic] have the apparent authority to bind Sterling Engineering to pay Mustang Rentals for the use of the equipment at the Skinner Road Project?

You must answer “no” to this question unless you find by a preponderance of the evidence that:

(a) Mustang Rental justifiably and reasonably relied on the words or conduct of the principals of Sterling Engineering or Sandeep Patel before deciding to rent the equipment used at the Skinner Road Property to George Giacona d/b/a Rocky Plumbing and then bill the use of that equipment to Sterling Engineering.

(b) Mustang Rental exercised reasonable diligence and prudence to ascertain the fact or scope of George Giacona's actual or apparent authority to bind Sterling Engineering to pay for the equipment used at the Skinner Road Property before renting the equipment to George Giacona d/b/a Rocky's Plumbing.

(c) Sterling Engineering's principals had full knowledge of all material facts related to the rental and use of the equipment at issue on the Skinner Road Property by George Giancona [sic] d/b/a Rocky's Plumbing.

The question proposed by the trial court asked:

Question No. 1

Did George Giancona [sic] have authority to act on behalf of Sterling Engineering to rent equipment from Mustang Rentals? ․ Apparent authority exists if a party (1) knowingly permits another to hold himself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that lead a reasonably prudent person to rely on the apparent existence of authority to his detriment. Only the acts of the party sought to be charged with responsibility for the conduct of another may be considered in determining whether apparent authority exists[.]4

During the charge conference, Sterling objected to the charge, and the following exchange occurred:

THE COURT: Okay. Question No. 1 with regards to the authority question, are there any objections?

․

[DEFENSE COUNSEL]: Yeah. There's an objection to the omission, Your Honor, of the instruction on the theory of apparent authority that the party be required to use reasonable diligence to ascertain Sterling's authority. We believe that the 14th and 1st District Court[s] of Appeals require that language or believe that that language is part of a jury instruction on apparent authority, and we would object to the omission of that language in the charge, Your Honor.

THE COURT: Okay. The court disagrees and is refusing that instruction, too.

Although Sterling's proposed jury instruction is an incorrect statement of the law, Sterling was not required to identify the correct legal standard to preserve its charge complaint for appellate review. See State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (“There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”). Indeed, the Rules of Civil Procedure establish what a party must do to preserve their jury charge complaint. Rule 272 states that the charge must be submitted to the parties or their attorneys for inspection. Tex. R. Civ. P. 272. The parties or their attorneys are afforded a reasonable amount of time to examine the charge and present their objections, and any objection must be made in writing or dictated to the court before the charge is read to the jury. Id. Further, Rule 274 provides that “[a] party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274. Our review of the record shows that Sterling properly preserved its challenge to the charge by making a timely objection and identifying the error “with sufficient specificity to make the trial court aware of the complaint,” which was ruled upon by the trial court. See Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Civ. P. 274. There was nothing more to be done to preserve error. See Payne, 838 S.W.2d at 241.

Having concluded that Sterling preserved its complaint for appellate review, we turn to whether the trial court erred in refusing Sterling's requested instruction. As stated, Sterling requested an instruction that the jury consider whether “Mustang exercised reasonable diligence and prudence” to ascertain the scope of George's authority. Sterling insists the proposed instruction is consistent with the legal standard articulated in Gaines. For convenience, we state the standard for apparent authority articulated in Gaines:

Apparent authority, we have said, is based on estoppel, arising “either from a principal knowingly permitting an agent to hold himself out as having authority or by a principal's actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority he purports to exercise. We have further noted that the principal's full knowledge of all material facts is essential to establish a claim of apparent authority based on estoppel. Moreover, when making that determination, only the conduct of the principal is relevant. Finally, the standard is that of a reasonably prudent person, using diligence and discretion to ascertain the agent's authority. Thus, to determine an agent's apparent authority, we examine the conduct of the principal and the reasonableness of the third party's assumptions about authority.

235 S.W.3d at 182–83 (internal citations omitted).

With this standard in mind, we review the charge given to ascertain whether the trial court submitted an erroneous instruction. Sterling complains of the omission of the language “using diligence and discretion” following the phrase “reasonably prudent person.”⁵ Sterling claims the phrase “using diligence and discretion” must also be included in the jury charge, following “reasonably prudent person.” We disagree. The phrase “using diligence and discretion” is set off by a comma in Gaines, indicating it is a nonrestrictive clause intended to provide additional information about the main clause, “reasonably prudent person.” See The Chicago Manual of Style § 6.27 (17th ed. 2017) (describing nonrestrictive clauses); Texas Law Review, Manual on Usage & Style 11 (14th ed. 2017) (“A nonrestrictive clause or phrase provides additional or parenthetical information about the person, thing, or idea to which the clause or phrase refers.”). Though Sterling ostensibly argues diligence and discretion—the nonrestrictive clause—is a separate standard, it is necessarily encompassed within the reasonably prudent person standard—the main clause. See Gaines, 235 S.W.3d at 182–83. Stated plainly, “using diligence and discretion” provides a helpful, but a non-essential method, for evaluating whether a third party acted as a reasonably prudent person. For example, the supreme court has consistently ascribed diligence to the reasonably prudent person standard. See, e.g., Tex. State Univ. v. Tanner, 689 S.W.3d 292, 299 (Tex. 2024) (discussing diligence in the context of service).

To the extent Sterling relies on our sister court's opinion in Reliant Energy Services for the proposition that an instruction requiring the jury to consider whether Mustang exercised diligence and discretion was required, we first note that we are not bound by a decision of a sister court of appeals. See Chrismon v. Brown, 246 S.W.3d 102, 111 n.8 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Even further, the language Sterling references as their authority is merely dictum because it was not necessary for the resolution of the appeal. See Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 662 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (defining “dictum” to mean “an observation or remark, made in a judicial opinion,” which is “not necessary to the determination of the case”). Indeed, the Reliant Energy Services court did not reach the merits of whether the trial court submitted an erroneous instruction because the issue was not preserved for appeal; no instruction was requested by any party nor was its omission objected to by either party. 336 S.W.3d at 788. While we are cognizant that our sister court recognized that an instruction regarding diligence in the context of the reasonably prudent person standard would be appropriate, “not every correct statement of the law belongs in the charge.” See Tex. Ear Nose & Throat Consultants v. Jones, 470 S.W.3d 67, 88 (Tex. App.—Houston [14th Dist.] 2015, no pet.). “A requested instruction can be both a correct statement of the law and still be unnecessary in the charge.” Id. As we explained above, “using diligence and discretion” is encapsulated within the reasonably prudent person standard. See Gaines, 235 S.W.3d at 182–83.

Finding no error in the charge, we overrule Sterling's third issue.

Sufficiency of the Evidence

Under its first two issues, Sterling complains of the jury's finding that George had authority to rent equipment from Mustang. In its appellate briefing, Sterling alleges George had neither actual nor apparent authority to act on behalf of Sterling. We however need not reach the merits of the actual authority theory because Mustang acknowledges the case was tried only on a theory of apparent authority. See Tex. R. App. P. 47.1. Although Sterling objected to the charge submitted, we concluded above that no such error existed. Therefore, we will examine Sterling's conduct and the reasonableness of Mustang's assumptions about George's authority in light of the charge given. Because an agent's apparent authority originates with expressive conduct by the principal toward a third party, we begin by evaluating Sterling's conduct. See Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 550 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see also Restatement (Third) of Agency § 3.03, cmt. b (explaining a principal may make manifestations regarding an agent's authority in many ways).

The evidence shows Sterling's actions, particularly coupled with its inactions, created apparent authority for George to rent equipment from Mustang. Sterling signed a contract but elected not to require a purchase order before equipment could be rented on its account. See Gaines, 235 S.W.3d at 182 (stating apparent authority may arise from a principal's actions which lack ordinary care). Had Sterling required a purchase order, it would have served as a safeguard for unauthorized transactions. But the absence of this safeguard permitted George to charge equipment to Sterling's account for the West Road Project fourteen times in February 2014.

The evidence further shows that Sterling received an invoice for each of these transactions. Every invoice included a notation of “Verbal George” and his telephone number, identifying him as the person who rented the equipment. Sterling paid eleven of these invoices (including the insurance premiums) without objection on March 31. See EIS Dev. II, LLC v. Buena Vista Ass'n, ––– S.W.3d ––––, ––––, 2025 WL 1668344, at *8 (Tex. 2025) (holding that one can waive a right by “silence or inaction” in the context of enforcing a restrictive covenant); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex. 1996) (same); Protect Envtl. Servs., Inc. v. Norco Corp., 403 S.W.3d 532, 542 (Tex. App.—El Paso 2013, pet. denied) (“Norco's silence and failure to object or refute the contract or the subsequent invoice can be shown as a manifestation of acceptance.”); see also Restatement (Third) of Agency § 1.03, cmt. b (“Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance.”).

Patel admitted that he did not inquire into “who did what” or otherwise inform Mustang that George did not have authority because the equipment was used for Sterling's benefit. See Protect Envtl. Servs., 403 S.W.3d at 542; see also Restatement (Third) of Agency § 1.03, cmt. e (“[F]ailure to object may properly be understood as a manifestation of intention or consent.”). Sterling's affirmative conduct—the March 31 payment in tandem with the lack of protest to the authority exercised by George—clothed George with the indicia of authority for the subsequent unauthorized orders for the Skinner Road Project. See Gaines, 235 S.W.3d at 182. Moreover, Sterling did not question George's authority or otherwise challenge the disputed invoices for the Skinner Road Project until the invoices were three months overdue. By this point (and cloaked with the indicia of authority), George had already charged equipment to Sterling's account over twenty-five times for both authorized and unauthorized purposes. See id. And it was too late for Sterling to rescind the authority conferred. See id. (explaining that apparent authority is based on estoppel); Wyndham Hotel Co. v. Self, 893 S.W.2d 630, 634 (Tex. App.—Corpus Christi 1994, writ denied) (explaining that a principal may be estopped from denying apparent authority when certain conditions are met); see also Black's Law Dictionary (12th ed. 2024) (defining estoppel); Restatement (Third) of Agency § 2.03, cmt. c. (“A principal may not choose to act through agents whom it has clothed with the trappings of authority and then determine at a later time whether the consequences of their acts offer an advantage.”).

Now, having evaluated Sterling's conduct, we analyze the reasonableness of Mustang's assumptions about George's authority to rent equipment on behalf of Sterling. The evidence establishes that the contract did not confer authority on George to rent equipment on behalf of Sterling. Patel, as president, was the only agent identified by Sterling in the rental contract. Even so, Mustang rented the equipment to George based on his own representations that he was “George with Sterling” and did so at its own risk. See Suarez, 35 S.W.3d at 273; see also Gaines, 235 S.W.3d at 183–84. To the extent Mustang cites that George ostensibly signed a rental agreement as an authorized agent of Sterling, this act is of little importance because there is no evidence that Sterling was aware of George's actions. Without Sterling's participation, no mere combination of circumstances, may serve as the predicate for apparent authority. See Expro Americas, 351 S.W.3d at 925. Therefore, the evidence shows that Mustang undoubtedly did not act as a reasonably prudent person, using diligence and discretion to ascertain the scope of George's authority before renting equipment to George. That said, our inquiry does not end here because Sterling's March 31 payment was of great importance concerning the reasonableness of Mustang's assumptions about George's authority.

The record establishes prior to making the March 31 payment, Sterling was aware (or should have been) that George was placing orders on its account. See Gaines, 235 S.W.3d at 182. As mentioned, Sterling received an invoice after each transaction. The invoices contained the name of the person who placed the order, their phone number, and the address where the equipment was delivered. Sterling was therefore afforded ample opportunity to inform Mustang that George did not have authority or otherwise limit his authority, but Sterling did nothing. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984) (considering whether there was a “pattern of conduct” by principal that would establish apparent agency); see also Restatement (Third) of Agency § 2.03, cmt. c (“[A] principal may permit an agent to acquire a reputation of authority in an area or endeavor by acquiescing in conduct by the agent under circumstances likely to lead to a reputation.”). Rather, Sterling paid eleven of the fourteen invoices for orders placed by George without objection. By making this payment without notifying Mustang that George did not have authority, Sterling effectively authorized, consented to, and acquiesced to George's prior conduct. Hence, when George placed subsequent orders—both authorized and unauthorized—it was reasonable for Mustang to believe that George had the authority he purported to exercise because Sterling had clothed him with the indicia of authority. See Gaines, 235 S.W.3d at 182–83. Notably, Sterling has not cited, and research has not revealed any duty for Mustang to use diligence and discretion to ascertain George's authority after Sterling had cloaked him with the indicia of authority. The operative question is whether a reasonably prudent person in Mustang's position, using diligence and discretion to ascertain George's authority, would have believed that George had authority. Given the evidence in the record, it was reasonable for Mustang to believe so. See id.

Based on the charge given, we conclude that sufficient evidence supports that Sterling's conduct led Mustang to reasonably assume that George had the authority he purported to exercise. See id. Viewing the evidence in a light most favorable to the jury's verdict, and considering and weighing all the evidence, we conclude the evidence was legally and factually sufficient to support the jury's finding that George acted with apparent authority. See City of Keller, 168 S.W.3d at 822; Ellis, 971 S.W.2d at 406–07; see also Gaines, 235 S.W.3d at 182–83.

Accordingly, we overrule Sterling's first and second issues.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   George is a plumbing contractor and operates a company named Rocky Plumbing. George is not named as a responsible third-party in the underlying action nor is he party to this appeal, but he is relevant to the apparent agency issue raised on appeal.

2.   It was later discovered that the owner of the Skinner Road Project was Eastern Diversified L.C.

3.   Freddie is another contractor who placed orders on Sterling's account with Mustang for the West Road Project.

4.   The language of the charge actually given tracks the Texas Pattern Jury Charge. See Tex. Pattern Jury Charges: Business, Consumer, Insurance & Employment PJC 101.15 (2023). Though the pattern jury charges themselves are not the law, the supreme court has explained that “our trial courts routinely rely on the Pattern Jury Charges in submitting cases to juries, and we rarely disapprove of these charges.” See JNM Express, LLC v. Lozano, 688 S.W.3d 327, 332 n.14 (Tex. 2024) (quoting Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007)).

5.   We are mindful that Sterling's requested instruction included the phrase “diligence and prudence” rather than the phrase “diligence and discretion” set forth in Gaines. 235 S.W.3d at 183.

Maritza Antú, Justice