Savory v. First Union Nat'l. Bank of Del.


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Docket Number: 2003-CA-02773-SCT
Linked Case(s): 2003-CA-02773-SCT

Supreme Court: Opinion Link
Opinion Date: 03-01-2007
Opinion Author: SMITH, C.J.
Holding: REVERSED AND REMANDED

Additional Case Information: Topic: Fraud - Agency relationship - Jury instructions - M.R.C.P. 51(b)(3)
Judge(s) Concurring: WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ.
Judge(s) Concurring Separately: COBB, P.J. CONCURS IN PART
Concur in Part, Concur in Result 1: Cobb, P.J., Concurs in Part and in Result Without Separate Written Opinion.
Procedural History: Jury Trial
Nature of the Case: CIVIL - OTHER

Trial Court: Date of Trial Judgment: 10-15-2002
Appealed from: LEFLORE COUNTY CIRCUIT COURT
Judge: Margaret Carey-McCray
Disposition: Jury found that First Union was not liable to Appellant, however, jury awarded Appellant damages as a result of the fraud committed by Emory & Mississippi Mortgage.
Case Number: 2001-022CI

  Party Name: Attorney Name:  
Appellant: BRENDA SAVORY




FRANK THACKSTON, JR. C. W. WALKER, III.



 

Appellee: FIRST UNION NATIONAL BANK OF DELAWARE H. MITCHELL COWAN VIKKI J. TAYLOR  

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Topic: Fraud - Agency relationship - Jury instructions - M.R.C.P. 51(b)(3)

Summary of the Facts: Brenda Savory claims that she was defrauded by First Union National Bank of Delaware and mortgage brokers John Emory and Joni Goss, doing business as Mississippi Mortgage Corporation, while she was obtaining a loan to purchase a house with First Union. A jury found that First Union was not liable to Savory. However, the jury awarded Savory $30,000 in actual damages and $20,000 in punitive damages as a result of the fraud by Emory and Mississippi Mortgage. Savory appeals.

Summary of Opinion Analysis: Savory argues that the court should have instructed the jury that First Union was vicariously liable for the wrongful conduct of its agents; therefore the court erred in submitting to the jury the issue of whether the mortgage brokers were agents or independent contractors. The question of whether an agency relationship exists, or whether a party is an independent contractor, is a question of fact to be resolved by the jury. At trial, First Union and Savory presented conflicting evidence regarding whether Emory and Mississippi Mortgage were agents or independent contractors. Due to the conflicting evidence, the court did not err in submitting this issue to the jury. Savory also argues that two other jury instructions were incorrect statements of law. First Union argues that Savory has waived her objections based on her failure to object to these instructions at trial. M.R.C.P. 51(b)(3) requires that objections to jury instructions be stated distinctly into the record before the instructions are presented to the jury. The record shows that Savory objected to both instructions in a jury instruction conference held out of the jury’s presence before the instructions were given. The first instruction about which Savory complains directed the jury to consider all of the parties as one group instead of correctly directing the jury to consider the status of each of these parties. Under the correct standard of law, the jury’s finding that any one of these parties was an independent contractor would not exonerate First Union from the wrongful conduct of any of the other parties whom the jury believed to be agents of First Union. Therefore, this instruction as written is misleading and conflicts with the applicable rule of law. The second instruction also failed to instruct the jury as to the applicable rule of law and was likely to cause confusion due to the use of conflicting language within the instruction. Under this instruction, for the jury to return a verdict against First Union, they had to find that each party acted as an agent of First Union. Under the correct statement of law, if the jury found that any one of these parties were acting within their scope of employment as agents of First Union, the fraudulent actions of that agent could bind First Union.


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