Court of Appeals of Texas,

Houston (14th Dist.).

Daniel LOPEZ, Appellant,

v.

The STATE of Texas, Appellee.

Sept. 11, 2003.

Panel consists of Justices YATES, HUDSON, and FROST.

MEMORANDUM OPINION

LESLIE BROCK YATES, Justice.

Appellant Daniel Lopez was convicted by a jury of two counts of felony theft. In seven points of error, appellant claims: (1) the evidence is factually insufficient to support the two convictions; (2) there is insufficient evidence to corroborate the accomplice’s testimony; (3) the State asked improper commitment questions during voir dire; (4) the trial court erred in denying appellant’s request to conduct a voir dire examination of a witness; (5) the State made improper statements about appellant’s prior conviction, and (6) during closing argument, the State improperly attempted to shift the burden of proof. We affirm.

Background

On August 28, 2001, 1200 processors were stolen from the high value parts section of TNT, Compaq Computer Company’s raw materials warehouse. On August 30, 2001, 3000 additional processors were stolen from the same location. Compaq investigator James Hathaway testified that the stolen processors were valued at $793,000.

The warehouse had a complex security system that required all drivers to log in for pick-up of high-end parts. Each truck making a pick-up received an inbound ticket that detailed the date and time of arrival. The ticket also contained information regarding the carrier, rig and trailer number, and the driver’s name and license number. The warehouse also maintained an inbound trailer log containing the same information. Inventory control documents track the goods and are signed by the TNT employee and the driver taking delivery. Appellant, a driver for the trucking company USF Dugan, made frequent cargo pick-ups at the warehouse. Appellant’s accomplices, Spencer Miller, and Bernard Olewe worked at the TNT warehouse.

Factual Sufficiency

In his first and second points of error, appellant claims the evidence is factually insufficient to support his two convictions for theft. We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). We may set aside the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Although we review the fact finder’s weighing of the evidence, and we are authorized to disagree with the fact finder’s determination, our evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.

Here, the State presented sufficient evidence to convict appellant on both counts of theft. First, accomplice Spencer Miller testified that he, appellant, and Bernard Olewe planned the thefts. Both Miller and Olewe worked at TNT and solicited appellant because he drove for USF Dugan trucking, which regularly serviced the warehouse. On August 28 and 30, Miller loaded appellant’s USF Dugan truck at the TNT facility with a large shipment of processors. Appellant then left TNT with the processors. Miller was unsure where appellant took them, but testified Olewe had arranged for a buyer to purchase the stolen merchandise. Olewe paid Miller $50,000 for his role in the theft. Miller shared this sum with appellant.

In addition to Miller’s testimony, other evidence supports appellant’s conviction. The TNT warehouse had extensive security procedures that required its personnel to keep detailed information about who made deliveries and picked up orders. Specifically, security personnel tracked truck entry, arrival at the high value area, and all exits from the compound. Appellant worked for USF Dugan, which made frequent pick-ups at the facility. Warehouse documentation showed a USF Dugan truck picked up the stolen property. Further, the August 30 sign-in documents showed the driver as a D. Lopez with driver’s license 16300102 and trailer number 13081. Appellant’s license is 10300102 and his assigned tractor number was 13081. Two TNT security officers, one from each date, identified appellant from a photo spread as the driver of the truck that picked up the stolen property. The State also presented evidence that appellant was undertaking an extensive remodeling effort on his home, indicating that he might recently have received a large influx of money.

Appellant points to both documentary and testimonial evidence to support his contention that the evidence is factually insufficient to support the conviction. For the August 28 thefts, appellant argues the shipping documents fail to link him to the theft. The authorization slip, outbound order, packing list, and outbound checklist contained no connection to appellant other than through Miller’s testimony and signature. However, the authorization form and bill of lading are tied to USF Dugan, the carrier for which appellant works. Documents also show that the August 28 driver was “Thomas Garza,” driving trailer 5873 and arriving at TNT at 10:02 a.m. Appellant began work at 9:33 a.m. that day and was assigned trailer 5873.

Appellant also points to the inability of warehouse employees to identify him in court as the USF truck driver on either August 28 or 30. For the August 28 theft, neither the Burns security supervisor, the warehouse supervisor, inbound gate security guard, nor the warehouse supervisor could identify appellant as the truck driver. The Burns security officer, Geraldine Wilson, selected appellant from a photo spread as the August 28 truck driver, but failed to identify him in court.

Warehouse personnel were also unable to identify appellant as the August 30 driver. The main gate security guard, Cornelio Medina, tentatively identified appellant from a photo spread, but did not make an identification in court. Medina also wrote down the driver’s license number as 10300102 when appellant’s is 16300182. However, Medina described the driver’s license as “kind of old” and having a black smudge on the left hand corner. In addition, he testified the licence photo looked like the truck driver.

Finally, appellant points to his own testimony in support of his argument that the evidence is factually insufficient. He testified that he did not know Spencer Miller and could not explain why Miller and Olewe’s phone numbers were on his cell phone. In addition, he claimed the remodeling was only of his kitchen cabinets and he had purchased only wood for the job. He denied having visited the TNT warehouse or stealing any of the processors.

Although there were no positive in-court identifications, we conclude that the State presented factually sufficient evidence to the jury to show that appellant committed the theft offenses. Accomplice testimony, cell phone records, warehouse documents, and other testimonial evidence connect appellant to the trucking company, the warehouse on the days of the theft, and with the admitted accomplice. Therefore, appellant’s first and second points of error are overruled.

Corroboration Evidence

In his third point of error, appellant claims the evidence was insufficient to corroborate the accomplice testimony of Spencer Miller. “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code of Crim. Proc. Ann. art. 38.14 (Vernon 1979). The evidence need not directly connect the defendant to the crime or “that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense.” Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (citing Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988)). “If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.” Id. (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991)).

“The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense.” Burks v. State, 876 S.W.2d 877, 887 (Tex.Crim.App.1994). In applying the test for sufficiency, each case must be considered on its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988) (citing Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Crim.App.1983)). All the other facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. Id. (citing Brown v. State, 561 S.W.2d 484 (Tex.Crim.App.1978)). The corroborative evidence may be circumstantial or direct. Id. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses that tends to connect the accused with the commission of the offense supplies the test. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

In the absence of the accomplice’s testimony, the State still presented sufficient evidence to convict appellant. As stated previously, evidence placed appellant at the warehouse on the dates in question. Cell phone records revealed calls to the accomplices and warehouse. Even in the absence of accomplice testimony explaining the theft scheme, the evidence directly linked appellant to the crime. Independent evidence corroborated appellant’s presence at the scene on the dates in question when there was no scheduled pick-ups or deliveries. On August 28, warehouse documents recorded a USF Dugan carrier with a trailer number registered to appellant. On August 30, warehouse documents showed D. Lopez signing in with the rig number assigned to him. This evidence tends to connect appellant with the crime such that it sufficiently corroborates the accomplice testimony. We overrule appellant’s third point of error.

Improper Commitment Questions During Voir Dire

In his fourth point of error, appellant claims the State conducted an improper voir dire by attempting to commit the jury to a particular verdict using a hypothetical fact pattern that was factually specific to this case. See Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001) (prohibiting improper commitment questions). An attorney’s questioning during voir dire is proper if it seeks to discover a juror’s views on an issue applicable to the case. See Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985). In this case, the prosecutor asked, “do you think you would be okay deciding beyond a reasonable doubt based on paperwork, based on records?” and “if you believe that circumstantial evidence beyond a reasonable doubt that would require more, require that eyewitness …”. The court sustained defense counsel’s objection and gave an instruction ordering the jury to disregard the prosecutor’s questions. Appellant’s motion for mistrial was denied. The issue, therefore, is not whether the State’s voir dire questions called for improper commitment, but whether the instruction to disregard cured any taint.

The voir dire examination allows counsel to assess the desirability of venire members and to select a “competent, fair, impartial, and unprejudiced jury.” Staley v. State, 887 S.W.2d 885, 896-97 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995); see also Woodall v. State, 77 S.W.3d 388, 399 (Tex.App.-Fort Worth 2002, pet. ref’d) (reviewing instruction to disregard improper voir dire examination). When reviewing a trial court’s ruling on the propriety of a question asked, we will not disturb the ruling absent an abuse of discretion. Woodall, 77 S.W.3d at 399 (citing Davis v. State, 894 S.W.2d 471, 474 (Tex.App.-Fort Worth 1995, no pet.)); Fuller v. State, 1998 WL 548709 (Tex.App.-Dallas 1998, pet. ref’d); see also Davila v.. State, 2003 WL 21404087, (Tex.App.-Amarillo 2003) (memorandum opinion) (applying Tex.R.App. Proc. 33.1 to appeal challenging commitment questions); Schumacher v. State, 72 S.W.3d 43, 47 (Tex.App.- Texarkana 2001, pet. ref’d) (applying rule to comment during voir dire). Whether the trial court abused its discretion in denying a motion for mistrial depends on whether the court’s instruction to disregard cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995). Generally, an instruction to disregard cures the prejudicial effect except where the comment or question “is clearly calculated to inflame the minds of the jury or so indelibly ingrained in their minds that it is not susceptible to withdrawal or retraction by an instruction to disregard.” Fuller, 1998 WL 548709 see also Dinkins, 894 S.W.2d at 357. Here, the questions were not so inflammatory as to render an instruction to disregard ineffective. Thus, because any possible prejudice was cured by the instruction to disregard, we need not address whether the State’s questions were improper commitment questions. We overrule appellant’s fourth point of error.

Failure to Conduct Voir Dire of State’s Witness

In his fifth point of error, appellant claims the court erred in denying defense counsel’s request to conduct a voir dire examination of the Compaq investigator as an expert witness on the value of the processors. The State examined James Hathaway, the complainant on the indictment and Compaq’s representative, regarding the value of the stolen property. Appellant’s trial counsel sought to conduct a voir dire examination of Hathaway to establish his qualifications for determining the fair market value of the processors. The trial court denied the voir dire request. In reviewing a trial court’s admission or exclusion of evidence we apply an abuse of discretion standard. Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App.1996).

Fair market value must be established if the testimony concerning value is given by someone other than the owner. Sullivan v. State, 701 S.W.2d 905, 908 (Tex.Crim.App.1986). It has long been the rule in this State that the owner of property is competent to testify as to the value of his own property. Jones v. State, 814 S.W.2d 801, 803 (Tex.App.-Houston [14th Dist.] 1991, no pet). When an owner testifies, the presumption is that the owner is testifying to an estimation of the fair market value. Id. Thus, the owner may testify as to the fair market value of the property either in terms of purchase price or the cost to him of replacing the stolen properly. Id. If appellant wishes to rebut the owner’s opinion evidence, he must do so through the use of cross- examination and the offer of controverting evidence as to the value of the property. Id.

Here, James Hathaway was named as the complainant and owner in both of the indictments. As such, he need not be taken on voir dire as an expert witness. Appellant’s fifth point of error is overruled.

Improper Statement about Length of Sentence

In his sixth point of error, appellant contends the prosecutor improperly testified to the jury about the length of sentence on a revocation of probation during the guilt-innocence phase. The exchange went as follows:

Q. Let’s talk about your probation.

A. Yes, ma’am.

Q. That is a felony probation, correct?

A. Yes, ma’am.

Q. And you face two to ten years in prison, correct? If this crime is true, your probation can be revoked and you can be sentenced to prison for two to ten years?

A. No, ma’am.

Q. What do you think–you’re on ten years probation, if your probation is revoked, isn’t it true you can go to prison for up to ten years?

A. No. I could–I could do the rest of the time that I haven’t done on probation.

Q. That would be incorrect. You could do up to ten years in prison–

The trial court sustained defense counsel’s objection to the comment about the length of the sentence. The trial court then instructed the jury to disregard the statement, overruling appellant’s motion for mistrial. When the trial court gives a curative instruction rather than granting a motion for mistrial, the question becomes whether the trial court erred in denying the motion for mistrial. Hyett v. State, 58 S.W.3d 826, 832 (Tex.App.-Houston [14th Dist.] 2001, pet. ref’d). “Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.” Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996) (en banc); see also Ford v. State, 14 S.W.3d 382, 394 (Tex.App.-Houston [14th Dist.] 2000, no pet.). To the extent that the statement was objectionable, we find the trial court’s instruction was sufficient to cure any prejudice and the prosecutor’s comment did not rise to the level necessary to warrant the granting of a mistrial.

Appellant’s sixth point of error is overruled.

Improper Closing Argument: Shifting Burden

In point of error seven, appellant contends the prosecutor improperly attempted to shift the burden of proof from the State by arguing to the jury that appellant could have presented contradictory evidence. [FN1] Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992) (en banc), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). To constitute reversible error the argument must be manifestly improper or inject new, harmful facts into the case. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

FN1. The statements made during the State’s final argument were:

He had a reason to lie, and there is nothing to substantiate what he’s saying. Something to substantiate every one of these guards, their identifications. And he wants to sit up and say it’s not me. I don’t know any of these people. I’m a victim. Out to get me. Sir, the perfect world doesn’t work that way. If you think–if they had documents to show it wasn’t him making the phone calls, you would see them. If they had documents to show someone else during those times, you would see them. Following a sustained objection and instruction to disregard, the prosecution made the following statement, “the defense has the power to make people appear, to subpoena records, just like the State.” The trial court overruled appellant’s objection in this regard.

The Court of Criminal Appeals has repeatedly held that the prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Jackson, 17 S.W.3d at 674; Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995) (en banc), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Here, reference to the defense’s failure to produce contrary witnesses and phone records was not improper.

Appellant’s seventh point of error is overruled.

Having denied appellant’s seven points of error, we affirm the trial court’s judgment.

Court of Appeal, Sixth District, California.

J.C. RESEARCH, INC., Cross-Complainant and Appellant,

v.

GLOBAL OVERLAND DELIVERY, INC., et al., Cross-Defendants and Respondents.

Sept. 16, 2003.

PREMO, J.

This appeal concerns two shipments of computer software that were stolen while in transit from California to Minnesota. The shipper, J.C. Research, Inc. (JCR) sought to invalidate the carrier’s limitation of liability stated on the face of the relevant shipping documents. The superior court concluded that the limitation of liability was valid and granted the carriers’ motions for summary judgment. We shall affirm.

FACTS

JCR was formed as an import/export company in 1985. A few years later it began producing and selling educational software and computer games. JCR obtains licenses to reproduce the software and hires other companies to manufacture and assemble the final product. In the year 2000 JCR had sales of approximately $3 million.

Global Overland Delivery (Global) is an airfreight forwarder that arranged transportation for JCR products. Between May and September 2000 JCR contracted with Global for 69 shipments. For each shipment JCR would contact the company with which it had contracted to assemble the software and give it instructions as to what, when, and where to ship the final product. The assembly company contacted Global when the shipment was ready to be picked up. Global would then retain a carrier to transport the goods. When it arrived to pick up the shipment the carrier would present an airbill that always contained the following language: “Value agreed to be $50.00 or .50¢ per pound domestic … unless excess value declared. It is mutually agreed that the shipment described herein is accepted on the date hereof in apparent good order except as noted for carriage as specified herein subject to the terms and conditions on reverse side hereof.” (The reverse of the airbill was blank.) The airbill was completed with a description of the shipment, its weight, and its destination. Each airbill contained a box immediately to the right of the shipper’s signature for insertion of a declared value. None of the 69 airbills used for JCR shipments declared an excess value. After the shipment was completed, Global sent a copy of the airbill along with an invoice to JCR for payment.

In early August 2000 Global retained Covenant Transport Service (Covenant) to haul two shipments for JCR from California to Minnesota. Covenant picked up the shipments from CMT, one of the companies that assembled products for JCR. These shipments were documented on two airbills that were identical in form to the airbills Global always used. Both airbills were signed on behalf of the shipper, presumably by a CMT employee, and neither had a declared value. Covenant took the two shipments as far as its terminal in Tracy, California where they were stolen. Global tendered the full amount of its liability under the airbills: $4,344. JCR refused the tender and sued Global and Covenant for the full value of the shipment: $176,109.

DISCUSSION

1. Summary Judgment Standard of Review

Any party may move for summary judgment in an action if it is contended that the action has no merit. (Code Civ. Proc., § 437c, subd. (a).) A defendant seeking summary judgment bears the initial burden of proving the cause of action has no merit by showing that one or more of its elements cannot be established or there is a complete defense to it. (Code Civ. Proc., § 437c, subds. (a), (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213.) On an appeal from summary judgment we review the record de novo. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) “In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

2. The Summary Judgment/Summary Adjudication Motions

Global commenced this action with a complaint for damages against JCR alleging that JCR had failed to pay for the shipping services Global had provided. JCR filed a cross-complaint against Global and Covenant alleging that Global and Covenant breached two contracts of carriage under the Carmack Amendment (49 U.S.C. § 14706). JCR described the contracts as the “Bills of Lading issued by Global….” JCR also alleged negligent bailment as a second cause of action. In their answers, Global and Covenant both raised as a fifth affirmative defense the fact that JCR had “agreed to a limited value for the cargo that is at issue.”

Global and Covenant filed summary judgment and summary adjudication motions based upon their limited liability defense. The moving parties included among their undisputed material facts the following: (1) the terms of the shipping agreements were contained in the airbills; (2) CMT was authorized to sign the airbills on behalf of JCR; (3) the airbills stated that the value of the load was limited to $.50 per pound “unless excess value declared”; (4) no excess value was declared; and (5) if a value had been declared on any of the airbills, the rate for that shipment would have been higher.

In its opposition to the motions JCR disputed the last of these facts. JCR produced the declaration of its president in which he explained that he switched JCR’s business to Global in May 2000 at the behest of Global’s sales representative. He said that the sales representative gave him a rate sheet reflecting one rate calculated by weight and distance, and that the sales representative also told him that Global was “fully insured.” Based upon those facts JCR disputed Global’s statement that had a greater value been declared on the airbill it would have charged JCR more for the shipment. JCR said that its “understanding” was that “the shipments were fully insured for the rates quoted in the Rate sheet. No alternate rates were offered by [Global].”

The trial court determined that there was no triable issue as to either of the two causes of action. Global dismissed its original complaint and judgment was entered on the cross-complaint in favor of Global and Covenant. JCR does not challenge the court’s disposition of the bailment cause of action. Thus, we are concerned with the breach of contract claim only.

The parties have treated the limited liability defense as a complete defense to JCR’s breach of contract claim. JCR’s only objection both below and on appeal has been to the enforceability of the limitation and it has directed its argument to both Global and Covenant without differentiating between their roles as freight forwarder and carrier, respectively. Since Global and Covenant established the defense by showing that the value of the goods was stated on the face of the airbills and that JCR’s agent signed the airbills on behalf of JCR, the sole issue before us is whether JCR has established a triable issue of fact concerning the validity of the limited value stated.

3. Agency

JCR contends that it is not bound by the limitation on liability because CMT did not have authority to agree to that term. The undisputed facts are otherwise.

The airbills themselves constitute the agreement between the shipper and the carrier. (Amer. Ry. Co. v. Lindenburg (1922) 260 U.S. 584, 591.) In this case, JCR specifically based its lawsuit on breach of the agreements contained in the airbills. In its cross-complaint JCR alleged: “Global entered into two [2] contracts of carriage, freight brokerage and bailment, with cross- complainant [directly and via cross-complainant’s agent CRT (sic ) ].” (Original brackets.) These allegations constitute JCR’s concession that CMT had actual authority to enter into the contracts. (See Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d 1030, 1035.)

JCR cannot separate out one term in the contract and deny the agent’s authority to agree to that term. “Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care allows the agent to believe himself to possess.” (Civ.Code, § 2316.) “An agent has authority: [¶] 1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; …” (Civ.Code, § 2319.) JCR gave CMT instructions on what to ship, where to ship it, and how much to ship. JCR admits that CMT had authority to call Global and arrange for the shipment and to deliver the goods to the carrier. Completing the airbill and executing it was unquestionably an act connected with the business of shipping the goods. Thus, under Civil Code section 2319 CMT had authority to enter into the shipment contracts and every term contained therein. The fact that CMT had completed and signed many identical airbills prior to the loss, all of which JCR eventually ratified, is further evidence of its authority to bind JCR to all the terms contained in the airbills. (See Transport Clearings-Bay Area v. Simmonds (1964) 226 Cal.App.2d 405, 425-426.)

In spite of JCR’s assertion to the contrary, as a matter of law CMT had actual authority to enter into the agreements that JCR claims were breached.

4. Reasonable Opportunity to Choose a Higher Coverage

JCR’s primary contention is that the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. § 14706) requires that in order to limit its liability a carrier must give the shipper a reasonable opportunity to choose greater coverage. According to JCR, there is a triable issue as to whether it had a reasonable opportunity to do that. Global contends that because it is an air freight forwarder the Carmack Amendment does not apply to it but that federal common law controls. Assuming without deciding that the Carmack Amendment applies to both defendants, the limitation on liability is enforceable.

The Carmack Amendment provides that a carrier subject to its jurisdiction may “establish rates for the transportation of property … under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” (49 U.S.C. § 14706, subd. (c)(1)(A).) Prior to more recent Congressional changes a carrier could limit its liability under the Carmack Amendment if it did four things: “(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission; (2) obtain the shipper’s agreement as to his choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.” (Hughes v. United Van Lines, Inc. (7th Cir.1987) 829 F.2d 1407, 1415; accord Hughes Aircraft v. North American Van Lines (9th Cir.1992) 970 F.2d 609, 611-612.)

This four-pronged test is no longer entirely applicable because of recent amendments eliminating the tariff-filing requirement. (The Trucking Industry Regulatory Reform Act of 1994 (TIRRA), Pub.L. No. 103-311, tit. II, § 206, 108 Stat. 1673, 1684-85; the ICC Termination Act of 1995 (ICCTA), Pub.L. No. 104-88, tit. I, § 103, ch. 147, § 14706, 109 Stat. 803, 907-10.) Instead of filing a tariff with a public entity a carrier now must simply produce a tariff upon request of a shipper. (49 U.S.C. § 14706, subd. (c)(1)(B).) The judicially crafted requirement that the shipper be given a reasonable opportunity to choose among levels of liability is unaffected by the recent changes in the law.

JCR contends that it had no opportunity to choose greater coverage because Global’s sales representative failed to disclose until after the loss that the rates he quoted were tied to a limitation on liability. The argument is unavailing for three reasons. First, Global was not required to describe in detail its rates and available levels of liability unless JCR requested it. Under the Carmack Amendment, JCR is charged with knowledge of those rates. The legislative history of the ICCTA explains the shipper’s burden: “Prior to the enactment of TIRRA, … [i]t was the responsibility of the shipper to take an affirmative step to determine what was contained in the tariff-usually through the retaining of a tariff watching service. An unintended and unconsidered consequence of TIRRA was that, when the tariff filing requirement was repealed, carriers lost this particular avenue as a way of limiting liability. This provision [requiring carriers to produce a tariff on request] is intended to return to the pre-TIRRA situation where shippers were responsible for determining the conditions imposed on the transportation of a shipment.” (H.R. Conf. Rep. 104-422, 223, 1995 U.S.C.C.A.N. 850, 908.) Thus, it was up to JCR to determine what Global’s rates for different levels of coverage actually were. But JCR’s president admitted that he did not attempt to ascertain the liability limits until after the fact. With respect to prior shippers he had used he testified that he did not know their liability limits because they had never lost anything. As to his understanding of Global’s liability limits, he testified that his idea of what Global owed him came from conversations with the sales representative when he filled out the claim form after the loss.

Second, JCR had actual notice of the limitation on liability because JCR contracted for shipments with Global several times a week for over two months before the loss occurred. Following each shipment JCR was sent a copy of the airbill clearly stating the agreed value for the shipment and an invoice for the service. The fact that the reverse of the airbills was blank is immaterial because the material term at issue was clearly stated on its face: “Value agreed to be $50 or .50¢ per pound.”

Third, regardless of what JCR may have believed he meant, the statement by Global’s sales representative that Global was “fully insured” was not a representation that Global would assume liability for the full value of the shipments involved.

JCR urged in its reply brief and at oral argument that the fraudulent deceit of which it complains is a state law claim and is not preempted by the federal law because it deals with conduct which is separate and distinct from the delivery, loss, or damage of the goods. The argument is unavailing first of all because JCR did not plead a state law claim. JCR designated its breach of contract cause of action as a statutory claim under the Carmack Amendment. As we explained above, the issues to be decided in a summary judgment motion are those framed by the pleadings. (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438.) In any event, the Carmack Amendment is a broad, comprehensive scheme covering the interstate shipment of freight, which preempts virtually all state law claims. (See Cleveland v. Beltman North American Co., Inc. (2ndCir.1994) 30 F.3d 373, 378.) In fact, the majority of the federal courts hold that even claims that are predicated on mistake or fraud in connection with the formation of a shipping contract are preempted by the Carmack Amendment. (See United Van Lines, Inc. v.. Shooster (S.D.Fla.1992) 860 F.Supp. 826, 829 and cases cited therein; contra Sokhos v. Mayflower Transit, Inc., (D.Mass.1988) 691 F.Supp. 1578.)

Finally, we reject JCR’s argument that it was not a sophisticated shipper and that the contract was one of adhesion. JCR was a substantial business enterprise with sales of $3 million in 2000. The fact that JCR made 69 shipments in four months demonstrates its familiarity with shipping practices. Indeed, as an importer/exporter since 1985, JCR cannot deny that it was knowledgeable in matters involving the shipment of goods.

Many cases have upheld carrier liability limitations under the reasonable opportunity requirement where the bill of lading contains a declared value box but where the shipper left the box blank. (See Hollingsworth & Vose Co. v. A-P-A Transp. Corp. (1st Cir.1998) 158 F.3d 617, 621; Norton v. Jim Phillips Horse Transp., Inc. (10th Cir.1989) 901 F.2d 821, 824-825; Mechanical Technology v. Ryder Truck Lines (2d Cir.1985) 776 F.2d 1085, 1088; Flying Tiger Line v. Pinto Trucking Service (E.D.Pa 1981) 517 F.Supp. 1108, 1114.) In Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238 the appellate court upheld the limitation of liability specified in the bill of lading even though there was evidence that the shipper had actually discussed more liberal insurance coverage with the carrier prior to the shipment. (Id. at pp. 242, 250-251.) “The theory behind those cases is unremarkable: If the shipper fails to fill in the blanks on the bill of lading, there is no ‘value established by written or electronic declaration of the shipper.’ 49 U.S.C. § 14706(c)(1)(A). Because the shipper is charged with notice of the carrier’s tariff, a provision in a tariff which limits liability to a certain amount absent a declaration of value in the bill of lading constitutes a ‘written agreement between the carrier and shipper,’ id., limiting the carrier’s liability to the value provided in the tariff. See Hollingsworth [ & Vose Co. v. A-P-A Transp. Corp., supra,] 158 F.3d at 619. In that situation, the declared value box provides the reasonable opportunity to choose a higher level of liability, and the shipper’s expectation that the carrier would be fully liable for any potential loss despite a failure to declare the actual value of the shipment is no more than a unilateral mistake.” (Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc. (11th Cir.2003) 331 F.3d 834, 842.)

Notwithstanding JCR’s “understanding” that there was only one rate, the undisputed facts are that Global would have charged more for greater coverage, which would have been provided if JCR had declared a value for the shipment. The airbill constituted the written agreement required by the Carmack Amendment to set the value of the shipment at $50 or $.50 per pound. The airbills afforded JCR a reasonable opportunity to choose between the limited coverage expressly stated on the face of the airbill and a greater level of coverage had it chosen to insert an excess value. JCR was a substantial commercial enterprise capable of understanding the agreements it signed. That is enough to give JCR a reasonable opportunity to opt for more coverage in exchange for a higher rate. (See Hollingsworth & Vose Co. v. A-P-A Transp. Corp., supra, 158 F.3d at p. 621.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: RUSHING, P.J., and BAMATTRE-MANOUKIAN, J.