NO. 05-10-00856-CV IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT DALLAS, TEXAS JOHN MUKORO, Appellant, vs. BRIDGET MYERS, Appellee. ON APPEAL FROM THE 192 ND JUDICIAL DISTRICT COURT DALLAS COUNTY, TEXAS APPELLEE S BRIEF John Howie, Jr. State Bar No. 24027239 Howie Law, PC 4040 N. Central Expwy Suite 850 Dallas, Texas 75204 214-622-6340 214-622-6341 (fax) Counsel for Appellee
STATEMENT REGARDING ORAL ARGUMENT Appellee, Bridget Myers, does not believe that oral argument will materially assist the Court in its resolution of this appeal. The issues raised in this appeal are quite simple. Nevertheless, to the extent the Court is inclined to set this case for oral argument, Appellee requests an opportunity to present oral argument. APPELLEE S BRIEF i
IDENTITY OF THE PARTIES AND COUNSEL As required by the Texas Rule of Appellate Procedure 38.1(a), Appellant correctly identifies appellate counsel, trial counsel and all parties to this appeal: APPELLANT: Appellate and Trial Counsel for Appellant: JOHN MUKORO John Mukoro (Pro Se Appellant) 15611 Oleta Lane Sugar Land, Texas 77498 713-334-0511 713-334-0581 (fax) APPELLEE: Appellate and Trial Counsel for Appellee: BRIDGET MYERS John Howie, Jr. Howie Law, PC 4040 N. Central Expwy Suite 850 Dallas, Texas 75204 214-622-6340 214-622-6341 (fax) APPELLEE S BRIEF ii
TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT... i IDENTITY OF THE PARTIES AND COUNSEL...ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... v ISSUES PRESENTED...vii STATEMENT OF FACTS... 9 SUMMARY OF THE ARGUMENT... 10 ARGUMENT AND AUTHORITIES... 10 A. Standard of Review... 10 B. Mukoro s failure to comply with TEX. R. APP. P. 38.1(i) waives his appellate arguments.... 11 C. A contract existed between Mukoro and Myers, and that contract was breached... 13 1. The attorney-client relationship is a contractual agreement.... 13 2. Mukoro s reliance upon his pleadings to deny a contractual relationship with Myers is misplaced, because pleadings are not evidence.... 15 3. Mukoro s argument that any conduct by Myers negated the existence of a contract is not supported by evidence or argument, so it should be ignored.... 16 D. A fiduciary duty existed between Myers and Mukoro... 16 1. The attorney-client relationship is fiduciary in nature... 17 2. The evidence supports that the fiduciary duty was breached.... 17 APPELLEE S BRIEF iii
3. Mukoro s brief contains factual assertions that were not presented to the trial court, so they should be ignored... 18 4. Mukoro s argument that any conduct by Myers negated the existence of a fiduciary relationship is not supported by evidence or argument, so it should be ignored... 18 E. Mukoro misapplied Myers fiduciary property... 18 1. The Penal Code defines a fiduciary as an attorney, and Myers settlement funds were fiduciary property... 19 2. By failing to pay Myers medical liens or returning her money, Mukoro misapplied Myers fiduciary property.... 19 F. Mukoro is vicariously liable for the acts of Akinnibosun... 20 1. Mukoro s argument is an improper attempt to interject evidence into the record, as that evidence was never presented to the trial court.... 20 2. Akinnibosun was acting in the course and scope of his employment.... 21 3. Even if Akinnibosun committed a criminal act, his conduct can still be within the course and scope of his employment.... 22 PRAYER... 23 CERTFICATE OF SERVICE... 24 APPELLEE S BRIEF iv
TABLE OF AUTHORITIES Cases Page Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1 (Tex. 1999)... 10 Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996)... 10 City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)... 15 Esty v. Beal Bank S.S.B., 298 S.W.3d 280 (Tex. App. Dallas 2008, no pet.)... 17 Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994)... 11 Gibson v. Ellis, 126 S.W.3d 324 (Tex. App. Dallas 2004, no pet.)... 17 GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999)... 21 Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323 (Tex. Civ. App. Austin 1931, writ dism d w.o.j.)... 23 Hidalgo v. Sur. Sav. & Loan Ass n, 462 S.W.2d 540 (Tex. 1971)... 15 Home Telephone & Electric Co. v. Branton, 7 S.W.2d 627 (Tex. Civ. App. Eastland 1928), affm d, 23 S.W.2d 294 (Tex. Comm n App. 1930)... 21 Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002)... 17 King v. Wells Fargo Bank, N.A., 205 S.W.3d 731 (Tex. App. Dallas 2006, no pet.)... 16 APPELLEE S BRIEF v
Lawrence v. Lawrence, 911 S.W.2d 443 (Tex. App. Texarkana 1995, writ denied)... 15, 18 Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009)... 10 McIntyre v. Wilson, 50 S.W.3d 674 (Tex. App. Dallas 2001, pet. denied)... 11 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003.... 11 Smith v. M. System Food Stores, 156 Tex. 484, 297 S.W.2d 112 (1957)... 21 Span Enterprises v. Wood, 274 S.W.3d 854 (Tex. App. Houston [1 st Dist.] 2008, no pet.)... 13 Sullivan v. Bickel & Brewer, 943 S.W.2d 477 (Tex. App. Dallas 1995, writ denied)... 11 Tanox, Inc. v. Akin, Gump, Strauss, Hauer, & Feld, L.L.P., 105 S.W.3d 244 (Tex. App. Houston [14 th Dist.] 2003, pet. denied).... 13 Texas & P. Ry. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039 (1891)... 21 Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006)... 11 Williams v. United States, 71 F.3d 502 (5 th Cir. 1995)... 23 Rules Tex. R. App. P. 38.1... 11, 12 Tex. R. Civ. P. 166a... 9 Statutes TEX. PEN. CODE 32.45... 19, 20 APPELLEE S BRIEF vi
ISSUES PRESENTED Appellee agrees with the nature of Appellant s issue numbers 1 through 4. However, prior to responding to Appellant s issue numbers 1 through 4, Appelle presents her own issue which, for sake of congruency of the argument, will be presented prior to responding to Appellant s issue numbers 1 through 4. 1. Did Mukoro waive his right to complain about the trial court s judgment by failing to comply with Tex. R. App. P. 38.1(i)? APPELLEE S BRIEF vii
NO. 05-10-00856-CV IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT DALLAS, TEXAS JOHN MUKORO, Appellant, vs. BRIDGET MYERS, Appellee. ON APPEAL FROM THE 192 ND JUDICIAL DISTRICT COURT DALLAS COUNTY, TEXAS APPELLEE S BRIEF TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Appellee, Bridget Myers, files this Appelle s Brief. In this brief, Appellant will be referred to as Mukoro. Appellee, Bridget Myers, will be referred to as Myers. The Clerk s Record will be referenced as CR Vol :[page]. APPELLEE S BRIEF 8
STATEMENT OF FACTS On or about December 4, 2007, Myers was at work when her chair collapsed underneath her. CR Vol 1:173. Myers suffered serious personal injuries as a result of the incident. See id. Myers sought representation for her personal injury claim from Mukoro and his law firm. See id. Myers met with an employee of Mukoro s by the name of Akinnibosun at Mukoro s office in Dallas, Texas. See id. On 5/9/08, a letter of representation was sent from Mukoro s law firm stating it represented Myers in regards to her personal injury claim. CR Vol 1:180. On 7/18/08, Mukoro s law firm made a demand on behalf of Myers in conjunction with her personal injury claim. CR Vol 1:182 183. Mukoro s law firm negotiated a settlement on behalf of Myers in the amount of $27,500. CR Vol 1: 174, 177. Akinnibosun then instructed Myers to meet him at a bank to endorse the settlement check and sign the settlement documents. CR Vol 1:174. Myers met Akinnibosun at the bank as instructed. See id. Akinnibosun gave $7,000 to Myers and advised he was withholding $20,500 for attorney s fees, expenses, and to pay Myers medical liens. See id. Mukoro s law firm failed to pay the medical liens, and on January 22, 2009, Myers was sued in JP court, because her liens were not paid by Mukoro. CR Vol 1:174, 188-191. On June 17, 2010, the trial court granted summary judgment in favor of Myers on her claims of breach of contract, breach of fiduciary duty, misapplication of fiduciary property, and vicarious liability, and this appeal ensued. CR Vol 1:313. APPELLEE S BRIEF 9
SUMMARY OF THE ARGUMENT By failing to adequately brief his arguments, Mukoro waived his appellate arguments. Notwithstanding, the evidence presented by Myers at summary judgment established that there was no genuine issue of material fact, and Myers was entitled to judgment as a matter of law, on her breach of contract, breach of fiduciary duty, misapplication of fiduciary property, and vicarious liability claims. Mukoro presented no evidence at summary judgment to refute Myers evidence or create a fact issue on these causes of action, and his reliance on pleadings as evidence is misplaced, as pleadings do not constitute evidence. ARGUMENT AND AUTHORITIES A. Standard of Review As this appeal arises from a trial court s ruling on a motion for summary judgment, this Court should conduct a review de novo. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence presented in the motion should be reviewed in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See id. All of the summary-judgment grounds on which the trial court ruled that are dispositive of the appeal should be reviewed, and this Court may consider any other grounds on which the trial court did not rule. See Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex. 1999) citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, APPELLEE S BRIEF 10
624 (Tex. 1996). However, issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered as grounds for reversal. TEX. R. CIV. P. 166a(c); see Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). The summary judgment should be affirmed if any of the movant s theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). B. Mukoro s failure to comply with TEX. R. APP. P. 38.1(i) waives his appellate arguments. Texas Rule of Appellate Procedure 38.1(i) requires that an appellant s brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities.... TEX. R. APP. P. 38.1; McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App. Dallas 2001, pet. denied). Bare assertions of error, without argument or authority, waive error. See Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App. Dallas 1995, writ denied); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate briefing). Mukoro s brief fails to comply with TEX. R. APP. P. 38.1(i), as it does not contain a clear, concise argument with appropriate citations to authorities. Throughout his brief, Mukoro repeatedly makes argument without any authority supporting the argument and without proper citation to the record. For example, in regards to whether a contract existed between Myers and Mukoro, Mukoro states: [I]f the unauthorized letter of representation... on Appellant law office s computer generated letterhead and signed by Stephen is construed to be the APPELLEE S BRIEF 11
conract, the fact that Appellee had knowledge that the settlement check was not made to Appellant but rather to Appellee and Dele & Associates, LLC, and that Appellee endorsed it and received $7,000 from the proceeds negates the existence of any contractual relationship between Appellee and Appellant. Appellant Brief at p. 7. Mukoro cites no authority in support of this proposition nor does he bother to provide any explanation whatsoever as to how or why the aforementioned conduct by the Appellee would negate the existence of any contractual relationship. For further example, Mukoro complains about the trial court s finding that Mukoro breached his fiduciary duty to Myers. In making this complaint, Mukoro notes that Appellant does not owe Appellee a fiduciary duty because the Attorney client relationship between Appellant and Appelle never existed, particularly as borne out by Appellee s endorsement of the settlement check, with full knowledge that it was made to a different entity, and signing a release, and receiving proceeds from the settlement, negates any fiduciary relationship, if any ever existed. Appellant Brief at p. 8. Again, Mukoro does not cite to any authority in support of this proposition, nor does he bother to provide any explanation whatsoever as to how or why the aforementioned conduct by the Appellee would negate the existence of a fiduciary relationship. In fact, throughout his appellate brief, Mukoro repeatedly makes assertions that are confused, unclear and unsupported by authority. While the aforementioned are only two examples, a review of his brief demonstrates that Mukoro has failed to comply with TEX. R. APP. P. 38.1(i) in regards to each argument he presents. 1 By failing to comply with TEX. R. APP. P. 38.1(i), Mukoro has waived his arguments in their entirety. 1 Mukoro does not cite to any authority at all in support of his misapplication of fiduciary property arguments. APPELLEE S BRIEF 12
C. A contract existed between Mukoro and Myers, and that contract was breached. In support of his argument that the trial court erred in granting summary judgment on breach of contract, Mukoro argues that 1) there was no express contract between Myers and Mukoro, and 2) Myers conduct negates the existence of any implied contractual relationship. Appellant Brief at p. 6-7. Even resolving all reasonable inferences in favor of Mukoro and taking evidence favorable to the non-movant as true, the evidence clearly reflects that a contract for legal services existed between Myers and Mukoro. Further, Mukoro s conduct has no impact on the existence of any implied contractual relationship. 1. The attorney-client relationship is a contractual agreement. An attorney-client relationship is a contractual agreement that can be created by an express contract or implied from the actions of the parties. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer, & Feld, L.L.P., 105 S.W.3d 244, 254 (Tex. App. Houston [14 th Dist.] 2003, pet. denied). A review of the evidence presented in support of the summary judgment undeniably reflects that there was an attorney-client relationship between Mukoro and Myers. In determining whether a contract which creates an attorney-client relationship should be implied, the court should use an objective standard, looking at what the parties said and did, and does not consider their unstated, subjective beliefs. See Span Enterprises v. Wood, 274 S.W.3d 854, 857 858 (Tex. App. Houston [1 st Dist.] 2008, no pet.). APPELLEE S BRIEF 13
The evidence presented at summary judgment included testimony from Myers as well as various correspondence obtained from third parties pertaining to her personal injury claim. 2 No evidence, by affidavit or otherwise, was presented by Mukoro. 3 The evidence offered by Myers establishes that, after her injury, she visited Mukoro s office seeking representation for the injuries she sustained when her chair broke underneath her, and from that point forward, Mukoro s office represented her. CR Vol 1:173-174. Further, two letters were offered by Myers that establish that Mukoro s office was actually representing Myers in her personal injury claim. CR Vol 1:180 & 182-183. The first letter, dated May 9 th, 2008, is a letter of representation that was sent from Mukoro s office to presumably the defendant stating: We write to notify you that Mukoro & Associates Law Firm has been retained to represent the above referenced client in a claim for Both Personal Injuries (sic) arising from the accident listed above. CR Vol 1:180. The second letter, dated July 18, 2008, is a demand letter that was sent by Mukoro s office which similarly states: As you know, this office represents Ms. Bridget Myers (sic) for the injuries she sustained due to defective chair that was delivered to our client s employer which occurred on the above referenced date of loss. CR Vol 1:182 183. Of additional significance is the fact that, after obtaining a settlement on her behalf, Mukoro s office withheld a fee from the settlement. CR Vol 1:174. Given the aforementioned, it is disingenuous to argue that Mukoro and Myers did not have an 2 Myers requested that Mukoro provide her a copy of her file, but they refused to provide it to her. CR Vol 1:175. 3 Mukoro filed his response to the Plaintiff s motion for summary judgment on 6/14/10. CR Vol 1:256. The hearing on the summary judgment was on 6/16/10. CR Vol 2:366. Thus, Mukoro s brief was not timely filed. See TEX. R. CIV. P. 166a. Further, the evidence attached to Mukoro s response was simply a regurgitation of the evidence presented by Myers. CR Vol 1:261 264. APPELLEE S BRIEF 14
attorney-client relationship and, thus, a contract. The evidence clearly indicates that Mukoro represented Myers in her personal injury claim, had an attorney-client relationship with her, and thus a contractual relationship with her. 2. Mukoro s reliance upon his pleadings to deny a contractual relationship with Myers is misplaced, because pleadings are not evidence. The only evidence that was presented at the summary judgment hearing was by the evidence presented by Myers. 4 Mukoro filed a response to the motion for summary judgment just two days prior to the hearing, but the response was late and, there was no competent summary judgment evidence contained within the response other than that previously offered by Myers. See Appellee Brief at fn. 3, supra. In his brief, Mukoro represents to this Court that he denies the existence of a contract between himself and Myers. Appellant Brief at p. 3. However, in making that representation, Mukoro cites to Defendant Original Answer and nothing more. See id. Mukoro does not point to any competent summary judgment evidence wherein he denied the existence of a contract between himself and Myers at the summary judgment hearing, because there was none. See id. In evaluating this appeal, this Court can consider only the evidence that was before the trial court at the time of the summary judgment motion hearing. See Lawrence v. Lawrence, 911 S.W.2d 443, 446 (Tex. App. Texarkana 1995, writ denied). Pleadings do not constitute summary judgment proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also Hidalgo v. Sur. Sav. & Loan Ass n, 462 4 Again, Mukoro s evidence was nothing more than a regurgitation of Myers evidence. CR Vol 1: 261 264. APPELLEE S BRIEF 15
S.W.2d 540, 543 (Tex. 1971) ( Pleadings simply outline the issues; they are not evidence for summary judgment purposes. ). Thus, Appellant s reliance on his pleadings to create a fact issue is misplaced. See King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App. Dallas 2006, no pet.). In fact, there is no evidence at all denying the existence of a contract between Mukoro and Myers. 3. Mukoro s argument that any conduct by Appellee negated the existence of a contract is not supported by evidence or argument, so it should be ignored. Mukoro argues in his brief that the fact that Appellee had knowledge that the settlement check was not made to Appellant but rather to Appellee and Dele & Associates, LLC, and that Appellee endorsed it and received $7,000 from the proceeds negates the existence of any contractual relationship between the Appellee and Appellant. Appellant Brief at p. 7. Mukoro fails to cite any authority for this proposition, and he fails to provide any explanation for his rationale. See id. First, Mukoro offered no competent summary evidence of what Myers knew or did not know at the time she endorsed the check. CR Vol 1:256 276. Second, the fact that she received $7,000 is entirely irrelevant to the issue of whether a contract existed by and between Myers and Mukoro. This is a nonsensical argument, and without some explanation of his rationale or a citation to authority, it should be ignored entirely. D. A fiduciary duty existed between Myers and Mukoro. In support of his argument that the trial court erred in granting summary judgment on breach of fiduciary duty, Mukoro argues that he did not owe Myers a fiduciary duty, because 1) there was no attorney-client relationship between Mukoro and Myers, and 2) APPELLEE S BRIEF 16
Myers conduct negates the existence of any fiduciary relationship. Appellant Brief at p. 8 9. Even resolving all reasonable inferences in favor of Mukoro, it is clear that Mukoro had a fiduciary duty to Myers. 1. The attorney-client relationship is fiduciary in nature. In certain formal relationships such as an attorney-client relationship, a fiduciary duty arises as a matter of law. See Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 303 (Tex. App. Dallas 2008, no pet.) citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 01 (Tex. 2002). As noted above, Myers retained Mukoro to represent her in her personal injury claim, and Mukoro represented her in that claim. Clearly, an attorneyclient relationship existed, and that attorney-client relationship created a fiduciary relationship between Mukoro and Myers. 2. The evidence supports that the fiduciary duty was breached. A breach of a fiduciary duty occurs when an attorney improperly benefits from the attorney-client relationship by, among other things, retaining a client s funds. See Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App. Dallas 2004, no pet.). The evidence offered by Myers at summary judgment established that Mukoro withheld funds from Myers settlement to pay her medical liens. CR Vol 1:174. As these liens were never paid by Mukoro, Myers medical providers filed a lawsuit against her seeking payment. CR Vol 1:175 & 188-191. This constitutes a breach of fiduciary duty as a matter of law. APPELLEE S BRIEF 17
3. Mukoro s brief contains factual assertions that were not presented to the trial court, so they should be ignored. In an improper attempt to interject evidence into this appeal that was not presented to the trial court, Mukoro comments in his brief that he only became aware of this transaction until suit was filed, and was never in possession of the settlement check. Appellant Brief at p. 8. Neither of these facts were presented to the trial court at the summary judgment stage, so they should be ignored by this Court in considering this appeal. See Lawrence, 911 S.W.2d at 446. 4. Mukoro s argument that any conduct by Myers negated the existence of a fiduciary relationship is not supported by evidence or argument, so it should be ignored. As with his argument regarding breach of contract, Mukoro makes a general, unsupported argument that the Myers conduct somehow negated the existence of a fiduciary relationship between Mukoro and Myers. Appellant Brief at p. 8. Once again, this argument lacks any explanation as to why or how the Myers conduct could negate the existence of a fiduciary relationship. See id. Further, this argument lacks citation to any authority supporting the argument. See id. This is a nonsensical argument, and without some explanation of his rationale or a citation to authority, it should be ignored entirely. E. Mukoro misapplied Myers fiduciary property. In support of his argument that the trial court erred in granting summary judgment on misapplication of fiduciary property, Mukoro argues that he could not have APPELLEE S BRIEF 18
misapplied Myers property, because the settlement funds were never in his possession. 5 See Appellant Brief at p. 9. Even resolving all reasonable inferences in favor of Mukoro, it is clear that Myers fiduciary property was misapplied. Mukoro s law firm clearly had Myers settlement check in its possession. 1. The Penal Code defines a fiduciary as an attorney, and Myers settlement funds were fiduciary property. The Texas Penal Code includes attorneys as well as any person acting in a fiduciary capacity within the definition of a fiduciary. See TEX. PEN. CODE 32.45. As noted above, Myers sought legal representation from Mukoro in regards to her personal injury claim. CR Vol 1:173 174. Further, Mukoro actually represented Myers, negotiated on her behalf, and accepted a settlement on her behalf. CR Vol 1:173 174; 180; 182 183. After receiving the settlement check, funds were withheld from the check to pay Myers medical liens. Vol 1:174. Clearly, the portion of the settlement funds that were retained by Mukoro to pay Myers medical liens constituted fiduciary property. 2. By failing to pay Myers medical liens or returning her money, Mukoro misapplied Myers fiduciary property. Despite the fact that Mukoro withheld funds from her settlement to pay Myers medical liens, the liens were never paid. Vol 1:174 175; 188 191. This resulted in a lawsuit being filed against Myers. CR Vol 1:188 191. A misapplication of fiduciary property occurs when property is handled in a manner contrary to an agreement under 5 Mukoro contends on appeal that the funds were never in his possession; therefore, there can be no misapplication of fiduciary property. Mukoro failed to present any evidence of this at the hearing on the motion for summary judgment, so this fact should be ignored by this Court. APPELLEE S BRIEF 19
which the fiduciary holds the property. See TEX. PEN. CODE 32.45 It was represented to Myers that her settlement funds were being withheld to pay her medical providers; however, those medical providers were not paid. CR Vol 1:174 175; 188 191. Thus, Myers settlement funds were misapplied. F. Mukoro is vicariously liable for the acts of Akinnibosun. Mukoro argues that vicarious liability does not exist, because Akinnibosun s actions were intentional. Appellant Brief at p. 9 10. As with his other arguments, his arguments regarding vicarious liability are vague at best. However, the evidence supports vicarious liability in this case as a matter of law. 1. Mukoro s argument is an improper attempt to interject evidence into the record, as that evidence was never presented to the trial court. Once again, Mukoro attempts to rely on facts and evidence that he did not bother to present to the trial court at the summary judgment hearing. No evidence was presented to the trial court that 1) Akinnibosun took any action that was not authorized by Mukoro; 2) Akinnibosun intentionally diverted proceeds from the law firm; 3) that Kapnick was negligent in some form or fashion; 4) Akinnibosun exceeded his scope of authority; or 5) Akinnibosun committed a criminal act. Akinnibosun could have given the money to Mukoro; he could have paid the wrong medical provider; he could have put the money in the firm s IOLTA account. If Mukoro desired to argue that Akinnibosun committed some act that was criminal or that exceeded his authority, then he could have made these arguments to the trial court. He chose not to do so, and he cannot now argue these for the first time on appeal. APPELLEE S BRIEF 20
2. Akinnibosun was acting in the course and scope of his employment. The evidence presented at the summary judgment hearing established that Akinnibosun handled all aspects of Myers personal injury claim: Akinnibosun met with her when she retained Mukoro. CR Vol 1:173 174. Akinnibosun sent letters on behalf of Myers. CR Vol 1:180 & 182 183. Akinnibosun made a demand on behalf of Myers. CR Vol 1:182 183. Akinnibosun obtained a settlement for Myers. CR Vol 1:174. Akinnibosun disbursed Myers settlement funds. See id. Clearly, Akinnibosun was authorized by Mukoro to handle all aspects of his client s personal injury claims including the disbursement of her settlement funds. To impose liability on an employer for the tort of his employee, the act of the employee must fall within the scope of the general authority of the employee in the furtherance of the employer s business and for the accomplishment of the object for which the employee was hired. See Smith v. M. System Food Stores, 156 Tex. 484, 297 S.W.2d 112, 114 (1957); Texas & P. Ry. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 1040 (1891); Home Telephone & Electric Co. v. Branton, 7 S.W.2d 627, 629 (Tex. Civ. App. Eastland 1928), affm d, 23 S.W.2d 294 (Tex. Comm n App. 1930). In GTE Southwest, Inc. v. Bruce, an employee of GTE sued GTE alleging that her supervisor harassed her causing her to suffer mental anguish. 998 S.W.2d 605, 608 609 (Tex. 1999). GTE argued that the supervisor s conduct was intentional, so it was not within the course and scope of the supervisor s employment. See id. at 617. The Court noted that generally, a master is vicariously liable for the torts of its servants committed APPELLEE S BRIEF 21
in the course and scope of their employment. See id. This remains true for an employee s intentional act not authorized by the employer when the act is closely connected with the servant s authorized duties. See id. at 617 618. Based on the aforementioned, the Court held that the supervisor s acts, although inappropriate, involved conduct within the scope of his position as the employees supervisor. See id. at 618. In this case, the evidence demonstrates that Akinnibosun had authority to handle all aspects of Myers personal injury claim. Thus, disbursing funds and paying medical providers were in the scope of his authorized duties. As this was in the scope of Akinnibosun s duties, Mukoro is vicariously liable for his actions. 3. Even if Akinnibosun committed a criminal act, his conduct can still be within the course and scope of his employment. The evidence presented at the summary judgment hearing reflected that this was not the first time something like this has occurred at Mukoro s law firm. CR Vol 1:221 226 & 227 235. Two years prior to the Myers incident, the medical providers of another client of the Mukoro firm were not paid just as in Myers case. CR Vol 1:228 229. This ultimately resulted in a suspension of Mukoro s license to practice law. See id. Given the aforementioned, Mukoro had notice that an event like this could occur, and despite that knowledge, he allowed Akinnibosun to handle Myers case from the beginning through disbursement of the settlement funds. Under Texas law, an employee s criminal acts can be within the course and scope of his employment and can impute liability to his employer, if the acts are foreseeable considering the employee s APPELLEE S BRIEF 22
duties. Williams v. United States, 71 F.3d 502, 506 n. 10 (5 th Cir. 1995); Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323, 327 (Tex. Civ. App. Austin 1931, writ dism d w.o.j.). The evidence in this case supports judgment on vicarious liability. PRAYER For the reasons set forth above, Myers asks this Court to affirm the judgment of the trial court in all respects. Further, Myers asks the Court for all other relief to which Myers is justly entitled. Respectfully submitted, Howie Law, PC By: /s/john Howie, Jr. John R. Howie, Jr. State Bar No. 24027239 4040 N. Central Expwy, Suite 850 Dallas, Texas 75204 214-622-6340 214-622-6341 (fax) COUNSEL FOR APPELLEE APPELLEE S BRIEF 23
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent to all counsel of record on the 11 th day of January, 2011. Via CMRRR # 7010 1870 0001 2582 9818 John Mukoro 15611 Oleta Lane Sugar Land, Texas 77498 /s/john Howie, Jr. John R. Howie, Jr. APPELLEE S BRIEF 24