Opinion
No. 05-10-00856-CV
Opinion issued July 26, 2011.
On Appeal from the 192nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-03472-K.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
Appellant John O. Mukoro challenges the trial court's decision to grant summary judgment in favor of appellee Bridget Myers. In four issues, Mukoro contends summary judgment was improper when fact issues remained on Myers's claims for breach of contract, breach of fiduciary duty, misapplication of fiduciary property, and vicarious liability. We affirm.
Background
Myers was at work when her chair collapsed beneath her, causing her personal injuries. Myers sought representation for her personal injury claim from the law firm of Mukoro Associates. Myers met with an employee of the firm, Stephen Akinnibosun, at Mukoro's law office in Dallas. In her affidavit, Myers stated she believed Akinnibosun was a lawyer with the firm and that "at all times Mukoro and Associates represented [her], [she] believed he was a lawyer."
On May 9, 2008, Akinnibosun sent a letter to Wieland Company on Mukoro Associates' letterhead, stating that "Mukoro Associates Law Firm has been retained to represent" Myers for her personal injury claim. On July 18, 2008, Akinnibosun made a written settlement demand, again on Mukoro Associates' letterhead, on behalf of Myers in conjunction with her personal injury claim.
Akinnibosun contacted Myers to let her know that a settlement had been negotiated on her behalf, resulting in payment of $27,500 in settlement of her claims. Akinnibosun instructed Myers to meet him at a bank to endorse the check and sign the settlement documents. She did as instructed and Akinnibosun presented her with a check payable to herself and Dele and Associates. Per Akinnibosun's direction, Myers endorsed the check. Akinnibosun then gave $7,000 to Myers and advised he was withholding the remaining $20,500 for attorney's fees and expenses and to pay Myers's medical liens.
The record before us provides no further information on the entity, Dele and Associates.
Mukoro's firm failed to pay Myers's medical liens and, on January 22, 2009, Myers was sued for her unpaid liens. Myers then sued Mukoro and his firm, Mukoro Associates, and filed her first supplemental motion for summary judgment on May 19, 2010. The trial court granted her motion on the following claims: (1) breach of contract, (2) breach of fiduciary duty, (3) misapplication of fiduciary property, and (4) vicarious liability. Mukoro filed this appeal.
Mukoro Associates is not a party to this appeal.
Standard of Review
The standards for reviewing a traditional summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. A motion for summary judgment must expressly present the grounds upon which it is made and must stand or fall on those grounds alone. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex. App.-Dallas 2000, no pet.).
We note that Mukoro filed his response to the motion for summary judgment two days prior to the hearing. Thus, the response was not timely filed. See Tex. R. Civ. P. 166a. In addition, the evidence attached to Mukoro's response only included evidence that was already attached to Myers's motion.
Analysis
We first turn to Mukoro's fourth issue in which he contends he cannot be held vicariously liable since Akinnibosun "did not act within the course and scope of employment." Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex. 1999). To determine whether an employee's acts are within the scope of his or her employment, we ask whether the employee's acts are: (1) within the general authority given to the employee; (2) in furtherance of the employer's business; and (3) for the accomplishment of the object for which the employee was employed. See Millan v. Dean Witter Reynolds, Inc., 90 S.W.3d 760, 767-68 (Tex. App.-San Antonio 2002, pet. denied).
The record before us provides the following relevant evidence: (1) Myers met with Akinnibosun at Mukoro's law firm, (2) Akinnibosun sent letters on Mukoro's firm letterhead, affirming the firm's representation of Myers, (3) Mukoro admitted the employment of Akkinibosun as a legal assistant, (4) Mukuro's firm negotiated a settlement on Myers's behalf, and (5) Akinnibosun indicated Mukoro's firm would withhold funds from the settlement to pay fees, expenses, and her medical liens. Mukoro did not attach any evidence to his late-filed response to rebut Myers's evidence that Akinnibosun was acting within the course and scope of his employment with Mukoro. See M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) ("In a traditional motion for summary judgment, if the movant's motion and summary judgment evidence facially establish the movant's right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment.") Thus, we conclude Akinnibosun was acting within the course and scope of his employment. See Millan, 90 S.W.3d at 767-68.
However, an employer is not liable for intentional and malicious acts that are unforeseeable considering the employee's duties. See Adami v. Dobie, 440 S.W.2d 330, 334 (Tex. Civ. App.-San Antonio 1969, writ dism'd). Mukoro contends he cannot be held vicariously liable for Akinnibosun's actions because it was "unforeseeable that an employee would intentionally divert proceeds meant to his employer to another entity, as here." First, we note that although the record shows the liens were not paid, there is no evidence in the record before us tracing the $20,500 withheld from Myers's settlement proceeds. Instead, the evidence demonstrates that Akinnibosun represented to Myers that he was withholding funds from Myers's settlement in order to pay her attorney's fees, expenses, and medical liens.
Also, we cannot agree that an intentional diversion of client fees would be unforeseeable under these circumstances. The summary judgment evidence establishes that, two years prior to Myers's incident, the medical providers of another client of Mukoro's firm were not paid just as in Myers's case. The Commission for Lawyer Discipline filed suit against Mukoro for these allegations in December of 2008. This failure to pay resulted in the partially probated suspension of Mukoro's license to practice law in October of 2009. Thus, we conclude Mukoro should be held vicariously liable for the foreseeable acts of Akinnibosun. See Adami, 440 S.W.2d at 334. See also Medina v. Herrera, 927 S.W.2d 597, 601 (Tex. 1996); Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990) (A master is vicariously liable even though the employee's tort is intentional when the act, although not specifically authorized by the employer, is closely connected with the servant's authorized duties.). We overrule Mukoro's fourth issue. See Nixon, 690 S.W.2d at 548.
In his first issue, Mukoro contends summary judgment was improper on Myers's breach of contract claim because there are issues of material fact remaining as to: (1) the existence of a contract between Mukoro and Myers and (2) whether Myers's endorsement of the check negates the existence of an implied contractual relationship between the parties.
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 [14th Dist.] 2003, pet. denied). 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, 857-58 (Tex. App.-Houston [1st Dist.] 2008, no pet.).
The summary judgment evidence demonstrates Myers sought representation in her personal injury claim from Mukoro Associates when she met with Akinnibosun in Mukoro's law office. In his brief, Mukoro acknowledges Akinnibosun was employed by him "as a legal assistant at the time in question." We have already determined Akinnibosun was acting within the course and scope of his employment. Two letters in the record, written on Mukoro Associates letterhead, state that Mukoro's office had been retained to represent Myers in her personal injury claim. After obtaining a settlement on her behalf, Myers was told that Mukoro's office was withholding money from the settlement for its fees and expenses, along with money to pay her medical liens. Mukoro's office withheld $20,500 from the settlement. We conclude the evidence before us demonstrates an attorney-client relationship, and thus an implied contract, existed between Mukoro and Myers. See Tanox, 105 S.W.3d at 254.
Mukoro next argues that even assuming there was an implied contractual relationship between the parties, Myers's endorsement of the check negates the existence of the contract. Specifically, Mukoro argues "the fact that [Myers] had knowledge that the settlement check was not made to [Mukoro] but rather to [Myers] and Dele Associates, LLC, and that [Myers] endorsed it and received $7,000.00 from the proceeds negates the existence of any contractual relationship" between Mukoro and Myers. However, as already noted, we cannot look to the parties' unstated beliefs. See Wood, 274 S.W.3d at 857-58. There is no evidence before us that demonstrates the check indicated to Myers that Mukoro did not represent her. In fact, Mukoro failed to attach any additional evidence to his response to Myers's motion for summary judgment which Myers had not already attached to her own motion. Furthermore, contrary to Mukoro's assertion, the fact that Akinnibosun, an employee of Mukoro, delivered $7,000 in settlement proceeds to Myers only goes to prove the existence of an attorney-client relationship. We, therefore, conclude there was an implied contractual relationship between Mukoro and Myers and overrule Mukoro's first issue.
There is no evidence that Myers was even aware the check was also made out to Dele Associates, LLC.
In his second issue, Mukoro argues summary judgment is not appropriate for Myers's breach of a fiduciary duty claim because "there are factual issues as to the existence of a contractual relationship between Myers and Mukoro, and whether [Myers's] conduct in accepting, by endorsement for deposit, and receiving $7,000.00 from such proceeds, with full knowledge that it was made to [Myers] and another corporate entity . . . further negate the existence of any implied contractual relationship between [Myer] and [Mukoro]."
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.). On appeal, Mukoro only challenges the existence of a fiduciary relationship between himself and Myers based on the following: (1) there was no contractual relationship between himself and Myers and (2) Myers's knowledge that the settlement check was made out to her and another corporate entity and the receipt of $7,000 negates the existence of any implied contractual relationship between Myers and Mukoro. Because we have already addressed these arguments in Mukoro's first issue, concluding there was an implied contractual relationship between Mukoro and Myers, we overrule his second issue.
Finally, in his third issue, Mukoro argues summary judgment in favor of Myers on her misapplication of fiduciary property was improper because there are "unresolved factual issues as to whether the property made the issue was ever in the possession of [Mukoro]." However, Mukoro fails to cite us to any authority to support his proposition. Bare assertions of error, without argument or authority, waive error. See Tex. R. App. P. 38.1; Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex. App.-Dallas 1995, writ denied). We overrule Mukoro's third issue.
Having overruled all of Mukoro's issues, we affirm the judgment of the trial court.