Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc.

ACCEPTED
03-17-00534-CV
21540047
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/1/2018 3:21 PM
JEFFREY D. KYLE
CLERK
NO. 03-17-00534-CV

FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 1/2/2018 8:00:00 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk

DENISE STROUP, AS LEGAL GUARDIAN OF D.L.S.,
AN INCAPACITATED PERSON
Appellant,
VS.

MRM MANAGEMENT, INC.
Appellee.

On Appeal from the 53RD District Court of Travis County, Texas
No. D-1-GN-17-003290
Honorable Karin Crump

BRIEF OF APPELLANT

APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT

FOGELMAN & VON FLATERN, LLP
Aaron von Flatern
State Bar No. 24076892
3101 Bee Cave Road, Suite 270
Austin, Texas 78746
(512) 375-3198
(512) 372-3209 (telecopier)
aaron@fvlawfirm.com

COUNSEL FOR APPELLANT
 LIST OF PARTIES AND COUNSEL

Pursuant to Rule 38.2(a)(1)(A), the following is a list of parties and counsel
before the Court.

Appellant:

Sarah Denise Stroup as legal guardian of D.L.S., an incapacitated
person.………………………………….…………………………….Plaintiff

Counsel for Appellant:

Aaron von Flatern........................................................Trial/Appellate Counsel
State Bar No. 24076892
Fogelman & Von Flatern, LLP
3101 Bee Cave Road, Suite 100
Austin, Texas 78746
(512) 375-3198
(512) 372-3209 (telecopier)
aaron@fvlawfirm.com

Appellee:

MRM Management, Inc..………………………………………......Defendant

Counsel for Appellee:

Gregory R. Ave....................................................................Appellate Counsel
State Bar No. 01448900
Walters, Balido & Crain, LLP
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
(214) 347-8310
(214) 347-8311 (telecopier)
AveEdocsNotifications@wbclawfirm.com

i
 TABLE OF CONTENTS

LIST OF PARTIES AND COUNSEL.............................................................i

TABLE OF CONTENTS................................................................................ii

INDEX OF AUTHORITIES...........................................................................v

STATEMENT OF THE CASE.......................................................................1

ISSUES PRESENTED....................................................................................4

STATEMENT OF THE FACTS.....................................................................4

SUMMARY OF THE ARGUMENT..............................................................6

ARGUMENT..................................................................................................8

A. Standard of Review....................................................................8

1. Traditional Motion for Summary Judgment Review.........8

2. No Evidence Motion for Summary Judgment Review......9

3. Summary Judgment Review in General..........................10

B. The Trial Court Erred in Granting MRM’s Traditional Motion
for Summary Judgment.............................................................11

1. Appellee MRM Has Failed to Conclusively Negate
Respondeat Superior Liability........................................11

a. The independent contractor agreement cannot
override the broker’s responsibility under Texas
law........................................................................12

ii
 b. Because it dissuaded Taylor from purchasing
additional insurance, MRM should be estopped
from using the independent contractor agreement to
escape exposure that Taylor would otherwise have
insured………………………………..................15

c. Fact questions abound in the determination of the
independent-contractor
question................................................................17

i. The independent nature of Taylor’s business
……………………………………………18

ii. Taylor’s obligation to supply necessary
supplies, tools, and materials……………..19

iii. Taylor’s right to control the progress of her
work...........................................................20

iv. The actual control exercised by Appellee
MRM..........................................................21

v. The permanency of the working relationship
……………………………………..……..23

vi. Whether the parties believe they are creating
an employer-employee relationship...........23

vii. The time for which Taylor was employed...24

viii. The method by which Taylor was paid......24

2. Appellee MRM Has Failed to Conclusively Negate Joint-
Enterprise Liability.........................................................24

3. Appellee MRM Has Failed to Conclusively Negate
Liability Under the Texas Occupations Code ................28

iii
 4. Texas Labor Code Jurisprudence Is Persuasive In Favor of
‘Course and Scope’ Versus ‘Detour’ for Each of
Appellant’s Theories of Recovery...................................35

a. The dual purpose rule............................................35

b. The continuous coverage doctrine........................36

C. The Trial Court Erred in Granting MRM’s No Evidence Motion
for Summary Judgment.............................................................38

PRAYER..................................................................................................................39

CERTIFICATE OF SERVICE................................................................................40

CERTIFICATE OF COMPLIANCE.......................................................................41

iv
 INDEX OF AUTHORITIES

Cases

Aetna Cas. & Sur. Co. v. Orgon,
721 S.W.2d 572 (Tex. App.—Austin 1986, writ ref'd n.r.e.)………........................37

Aluminum Chemicals, Inc. v. Bechtel Corp.,
28 S.W.3d 64 (Tex. App.—2000, no pet.)…………................................................25

Arbelaez v. Just Brakes Corp.,
149 S.W.3d 717 (Tex. App.–Austin 2004, no pet.).............................................37, 38

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005)....................................................................................10

Denson v. Dallas County Credit Union,
262 S.W.3d 846 (Tex. App.—Dallas 2008, no pet.)……….......................................9

Flood v. Katz,
294 S.W.3d 756 (Tex. App.—Dallas 2009, pet. denied) ...........................................9

Gipson v. Davis Realty Co.,
215 Cal. App. 2d 190 (1963)...............................................................................14, 30

Home Interiors & Gifts, Inc. v. Veliz,
695 S.W.2d 35 (Tex. App.—Corpus Christi 1985, writ ref. n.r.e.)...........................18

Kindred v. Con/Chem, Inc.,
650 S.W.2d 61 (Tex. 1983)......................................................................................10

King Ranch, Inc. v. Chapman,
118 S.W.3d 742 (Tex. 2003)......................................................................................9

Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) ……..............................................................................9

v
Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546 (Tex. 1985).................................................................................8, 10

Pitchfork Land and Cattle Co. v. King,
346 S.W.2d 598 (Tex. 1961)...............................................................................11, 18

Saenz. v. Southern Union Gas Co.,
999 S.W.2d 490 (Tex. App.—El Paso 1999, no pet.)...............................................10

Shelton v. Standard Ins. Co.,
389 S.W.2d 290 (Tex. 1965)....................................................................................37

Sudan v. Sudan,
199 S.W.3d 291 (Tex. 2006)....................................................................................10

Texas DOT v. Able,
35 S.W.3d 608 (Tex. 2000)......................................................................................25

Tex. Mut. Ins. Co. v. Jerrols,
385 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd)..............35, 36

Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc.,
644 S.W.2d 443 (Tex. 1982)…..................................................................................9

Wornick Co. v. Casas,
856 S.W.2d 732 (Tex. 1993)......................................................................................8

Zurich Am. Ins. Co. v. McVey,
339 S.W.3d 724 (Tex. App.—Austin 2011, pet. denied)....................................35, 36

Statutes

Tex. Occ. Code § 1101.001...........................................................................12, 28, 29

Tex. Occ. Code § 1101.002…...........................................................12, 13, 29, 31, 34

Tex. Occ. Code § 1101.351..........................................................................12, 13, 18, 29

vi
Tex. Occ. Code § 1101.803....................................................................12, 14, 17, 29, 30

Rules

Tex. R. Civ. P. 166a(i) .........................................................................................9, 10

vii
 NO. 03-17-00534-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS

DENISE STROUP, AS LEGAL GUARDIAN OF D.L.S.,
AN INCAPACITATED PERSON
Appellant,
VS.

MRM MANAGEMENT, INC.
Appellee.

On Appeal from the 53RD District Court of Travis County, Texas
No. D-1-GN-17-003290
Honorable Karin Crump

BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant Denise Stroup respectfully presents this Brief of Appellant.

Appellant requests that this Court reverse the judgment of the 53rd District Court of

Travis County, Texas, and in support thereof would show the Court as follows:

STATEMENT OF THE CASE

This is an appeal from summary judgment in a personal injury car-crash case.

It should be noted that the sole injured party in the case—Douglas Lee Stroup a/k/a

1
D.L.S—became incapacitated as a result of his injuries. He was therefore

represented in the proceedings below by his legally appointed guardian, Sarah

Denise Stroup a/k/a Denise Stroup (hereafter “Stroup”, “Appellant”, “Appellant

Stroup”, or “Plaintiff below”). Supp CR 4. On July 27, 2017, by order of the Probate

Court No. 1 of Travis County, Douglas Lee Stroup’s rights were restored, and the

guardianship discharged.

The procedural history is as follows. Appellant Stroup sued a real estate agent

named Penny Harrington Taylor alleging negligent operation of a motor vehicle.

Supp. CR 4-8; Supp. CR 118-124. Stroup additionally sued the corresponding real

estate broker of record, MRM Management, Inc. (the Appellee in this proceeding)

alleging MRM Management, Inc. was vicariously liable for the tortious conduct of

Penny Harrington Taylor. Supp. CR 4-8; Supp. CR 118-124. MRM Management,

Inc. will be referred to herein as “MRM”, “Appellee”, or “Appellee MRM”.

Appellee MRM filed a combined Traditional and No-Evidence Motion for

Summary Judgment. As grounds for summary judgment, Appellee MRM asserted

there was no evidence to support any of Stroup’s theories of vicarious liability,

and/or that the summary judgment evidence conclusively negated Stroup’s theories

of vicarious liability as to MRM.

2
 In its motion, Appellee MRM did not challenge Stroup's underlying claims of

negligence as to Defendant Taylor, or assert any grounds with respect to Taylor’s

conduct—only the existence of Defendant MRM’s vicarious liability for Taylor’s

conduct.

The order granting MRM Management, Inc.’s First Amended Traditional and

No Evidence Motions for Summary Judgment was signed on February 28th, 2017

in Travis County Cause No. D-1-GN-15-004909. Supp. CR 407. That case was

styled Sarah Denise Stroup, as Legal Guardian of Douglas Lee Stroup, an

Incapacitated Person v. Penny Harrington Taylor and MRM Management, Inc. in

the 98th Judicial District Court of Travis County, Texas. Supp. CR 407.

By order of that Court, Stroup’s claims against MRM Management, Inc. were

subsequently severed on July 17, 2017 to a new cause—Cause No. D-1-GN-

17003290, styled Douglas Lee Stroup v. MRM Management, Inc. in the 53rd Judicial

District Court of Travis County, Texas. Supp CR 435-36. Accordingly, on July 17,

2017 the prior order granting Summary Judgment as to defendant MRM

Management, Inc., became final as it disposed of all claims and parties within cause

number D-1-GN-17-003290.

Stroup timely filed notice of appeal on August 10, 2017 in Cause No. D-1-

GN-17-003290. Supp. CR 8-9.

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 ISSUES PRESENTED

The sole issue on appeal in this case is whether the trial court’s order granting

summary judgment in favor of MRM was proper. That is: has Stroup presented

evidence raising a genuine issue of material fact as to each element of Stroup’s

vicarious-liability theories of recovery against MRM, including: respondeat

superior; joint-venture liability; and statutory vicarious liability?

A key sub-issue is whether the Texas Real Estate License Act (within the

Texas Occupations Code) requires real estate brokers to be responsible for the

tortious conduct of real estate agents, regardless of the agents’ status as employees

or independent contractors.

SUMMARY OF THE FACTS

This is a personal injury case arising from a car-versus-motorcycle crash.

According to the police report, on August 6, 2015, in Austin, Texas, Penny

Harrington Taylor (hereafter “Taylor” or “Defendant Taylor”), caused a collision

when she advanced her car into a public roadway from a hotel driveway. Supp. CR

347-348. Defendant Taylor was a licensed realtor at the time and Appellee MRM

was her sponsoring broker for that license. Supp. CR 350. Taylor testified that she

believes she was engaged in selling real estate at the time of the subject crash. Supp.

CR 329 (76:21-24). Taylor had traveled to east Austin that Thursday morning from

4
Lakeway, Texas with the intent of devoting the weekend to performing landscape

improvement work on a residential property that she was listing for sale at 2705

Crest Avenue, in Austin, Texas. Supp. CR 318 (59:3-9); Supp. CR 161 (69:14-21).

The listing agreement for 2705 Crest Avenue designates Taylor as the listing agent,

and Keller Williams Realty (trade name for Appellee MRM Management, Inc.) as

the broker of record. See Appendix Ch. 1; see also Supp. CR 352-360; see also Supp.

CR 267 (establishing Keller Williams Realty as the trade name for MRM

Management, Inc.).

In the proceeding below, Appellant Stroup sued Penny Harrington Taylor

(hereafter “Defendant Taylor”) for negligently causing the motor vehicle crash.

Supp. CR 4-8; Supp. CR 118-124. Because Stroup alleged Defendant Taylor was a

licensed real estate salesperson engaged in real estate sales activities at the time of

the crash, Stroup additionally sued the real estate broker of record, Appellee MRM,

alleging that MRM was vicariously liable for Defendant Taylor’s tortious conduct.

Supp CR 4-8; Supp. CR 118-124. Stroup alleged that MRM was vicariously liable

pursuant to one or more of the following theories: respondeat superior; principle-

agent liability; joint enterprise liability; and statutory vicarious liability pursuant to

the Texas Real Estate License Act within the Texas Occupations Code. Supp. CR

118-124.

5
 Appellee MRM’s Traditional and No-evidence Motion for Summary

Judgment asserted there was no evidence to support any of Stroup’s theories of

vicarious liability, and/or that its summary judgment evidence conclusively negated

Stroup’s theories of vicarious liability as to MRM.

SUMMARY OF THE ARGUMENT

The Trial Court erred in granting MRM Management, Inc.’s Traditional

Motion for Summary Judgment. Appellee has failed to conclusively negate

respondeat superior liability for Appellant's tort claims against Appellee’s employee

Penny Taylor. Appellee argues Taylor was an independent contractor to whom

respondeat superior could not apply. However, because Taylor was a real estate

agent, and Appellee was Taylor's real estate broker of record, the independent

contractor agreement presented by Appellee cannot override Texas law requiring

MRM to be responsible for Defendant Taylor's conduct. Further, because the

wording of the agreement dissuaded Taylor from purchasing additional insurance,

MRM should be estopped from using the independent contractor agreement to

escape exposure that Taylor would otherwise have insured. Further, fact questions

abound in this case when weighing the independent-contractor-versus-employee

factors established by the Texas Supreme Court. Factors with fact questions include:

the independent nature of Taylor’s business; Taylor’s obligation to supply necessary

6
supplies, tools, and materials; Taylor’s right to control the progress of her work; the

actual control exercised by Appellee MRM; the permanency of the working

relationship; whether the parties believe they created an employer-employee

relationship; the time for which Taylor was employed; and the method by which

Taylor was paid.

In addition to respondeat superior liability, Appellee MRM has failed to

conclusively negate joint-enterprise liability. Appellee argues there was no evidence

of the element of equal right of control, and that Taylor was outside the scope of any

alleged joint-enterprise. However, substantial evidence suggests MRM’s real estate

agents participated in the governance of the organization, and that Taylor was within

the scope of her work for the organization when the crash occurred. The course-and-

scope evidence applies not only to the joint-enterprise theory of recovery, but also

to the respondeat superior theory of recovery, and the statutory vicarious liability

theory of recovery.

Appellee MRM has failed to conclusively negate vicarious liability under the

Texas Occupations Code, which requires real estate brokers to answer for the

tortious conduct of the real estate agents who carry out the broker’s business.

Finally, the trial court erred in granting MRM’s no-evidence motion for

summary judgment. Because MRM has only challenged its vicarious liability for

7
Taylor's conduct, and not the elements of Plaintiff's tort claims against Taylor, the

fact issues established in response to Appelle's Traditional Motion are equally

responsive to the no-evidence motion. Appellant has presented more than a scintilla

of evidence as to Appellee MRM's right of control as an employer, vicarious liability

as a joint-venturer, and statutory responsibility as a sponsoring broker. Further,

Appellant has presented more than a scintilla of evidence as to Taylor's acting within

the course and scope of the relevant work under the doctrines of respondeat superior,

joint-enterprise, and statutory vicarious liability.

ARGUMENT

A. Standard of Review

1. Traditional Motion for Summary Judgment Review

The standard for reviewing a traditional summary judgment is well

established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Defendants who move for traditional summary judgment must show the plaintiff has

no cause of action. See Id. Defendant (here, the Appellee MRM) may meet this

burden by either disproving at least one essential element of each theory of recovery,

or by conclusively proving all elements of an affirmative defense. Wornick Co. v.

Casas, 856 S.W.2d 732, 733 (Tex. 1993).

A matter is conclusively established if ordinary minds cannot differ as to the

8
conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). After the movants

have established a right to summary judgment, the burden shifts to the nonmovants

to present evidence creating a fact issue. Denson v. Dallas County Credit Union, 262

S.W.3d 846, 849 (Tex. App.--Dallas 2008, no pet.).

2. No Evidence Summary Judgment Review

The standard for reviewing a no-evidence summary judgment is the same

legal sufficiency standard used to review a directed verdict. See Tex. R. Civ. P.

166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied).

Accordingly, this Court must determine whether the nonmovant—here, the

Appellant--produced more than a scintilla of probative evidence to raise a fact issue

on the material questions presented. See Flood, 294 S.W.3d at 762.

A no-evidence summary judgment is improperly granted if the respondent—

here, the Appellant—has brought forth more than a scintilla of probative evidence

to raise a genuine issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003). "More than a scintilla of evidence exists when the evidence

rises to a level that would enable reasonable, fair-minded persons to differ in their

conclusions." Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so

9
weak as to do no more than create a mere surmise or suspicion' of a fact." Id.

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

Appellant–as non-movant responding to a no-evidence motion for summary

judgment–is not required to have marshalled her proof, but need only have pointed

out evidence that raises a fact question on the challenged elements. See Saenz. v.

Southern Union Gas Co., 999 S.W.2d 490, 493-94 (Tex. App.–El Paso 1999, no

pet.); see also Comments to Tex. R. Civ. P. 166a(i).

3. Summary Judgment review in general

In deciding or reviewing either a traditional or no-evidence motion for

summary judgment, every reasonable inference must be indulged in favor of the

non-movant, and any doubts resolved in the non-movant’s favor. See Nixon v. Mr.

Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823

(Tex. 2005)).

Thus, the Appellant should prevail in this case on both the traditional motion

for summary judgment and the no-evidence motion for summary judgment if the

summary judgment evidence contains more than a scintilla of evidence to raise a

genuine issue of material fact for each of the challenged theories of recovery.

10
B. The Trial Court Erred in Granting MJM’s Traditional Motion for
Summary Judgment

Appellee MRM’s summary judgment evidence failed to conclusively negate

vicarious liability under any of the Appellant Stroup’s theories of recovery,

including respondeat superior, joint enterprise, and statutory liability. The summary

judgement evidence raised, at a minimum, a genuine issue of material fact as to each

theory. Therefore, the trial court erred in granting Appellee MRM’s traditional

motion for summary judgment.

1. Appellee MRM has failed to conclusively negate respondeat
superior liability

Appellee MRM’s Traditional Motion for Summary Judgment argued that the

summary judgment evidence conclusively established that Defendant Taylor was an

independent contractor, and thus not MRM’s employee. Supp. CR 206-207. In

support of this proposition, Appellee MRM points to an independent contractor

agreement that Taylor signed, and further argued that the Court should apply a multi-

factored test pursuant to, inter alia, Pitchfork Land & Cattle v. King. Supp. CR 206;

See Pitchfork Land and Cattle Co. v. King, 346 S.W.2d 598, 602-03 (Tex. 1961);

see also Appendix Ch. 2 (independent contractor agreement).

Plaintiff would show that the independent contractor agreement is void to the

extent it conflicts with the Texas Occupation Code’s statutory mandate that real

11
estate brokers answer for their salespersons’ tortious conduct.

Additionally, Plaintiff will show that Defendant MRM should be estopped

from using the independent contractor agreement to shield itself from liability that

the agreement itself places at the feet of Defendant MRM.

Finally, even assuming the multifactored Pitchfork test were the only

consideration for the question of respondeat superior liability, the summary

judgment evidence presents genuine issues of material fact within the application of

that test.

a. The independent contractor agreement cannot
override the broker’s responsibility under Texas law

MRM’s main argument against respondeat superior liability is the

independent contractor agreement that Defendant Taylor signed. However, the

independent contractor agreement is void to the extent it conflicts with the Texas

Occupation Code’s statutory mandate that real estate brokers answer for their

salespersons’ tortious conduct.

Chapter 1101 of the Texas Occupations Code is known as the Texas Real

Estate License Act (hereafter “the Act”). See Tex. Occ. Code § 1101 et seq.; See also

Appendix Ch. 3. The Act sets forth the authority, professional standards, and

licensure requirements for persons and entities engaged in real estate transactions in

12
Texas, including real estate “brokers” and “salespersons”. Id.1 In general terms, the

Act defines “brokers” as persons who are paid to perform certain acts (referred to

herein as “broker acts”) for others. See Tex. Occ. Code § 1101.002(1). Those broker

acts are presented within a statutory laundry list that covers virtually all of the things

the general public would commonly understand to be the job of a “realtor” including:

buying and selling real estate; listing real estate; locating real estate; procuring

prospects to accomplish the sale of real estate; and promoting the sale of real estate.

Id.

The Act defines a “salesperson” as a person who is sponsored by a licensed

broker for the purpose of performing the above [broker] acts. See Tex. Occ. Code §

1101.002(7). Further, the Act states that “[a] licensed salesperson may not engage

or attempt to engage in real estate brokerage unless the sales agent is sponsored by

a licensed broker and is acting for that broker. Tex. Occ. Code § 1101.351(c)

(emphasis added).

In other words, all aspects of all real estate transactions in Texas are

technically carried out by real estate brokers, or by salespersons who are authorized

to engage in real estate brokerage for their sponsoring broker on the brokers’

1 The Occupations Code was revised effective January 1, 2016 (after the subject crash). Under the
revision, the term “salesperson” was changed to “sales agent”. The code provisions cited herein
were otherwise unchanged.

13
behalves. As such, the Act establishes a master-servant relationship as a matter of

law, and assigns legal responsibility for all statutory broker acts to the brokers.

Section 1101.803 of the Act states “[a] licensed broker is liable to the commission,

the public, and the broker's clients for any conduct engaged in under this chapter by

the broker or by a salesperson associated with or acting for the broker. Tex. Occ.

Code § 1101.803 (emphasis added).

The Act contains no provision authorizing brokers to contractually assign that

responsibility back to the salespersons, and thus brokers like Defendant MRM have

a non-delegable duty to the public for the conduct of salespersons associated with

Defendant MRM.

Therefore, any agreement that purports to characterize a salesperson’s

relationship to her sponsoring broker as that of an independent contractor is simply

void and unenforceable for the purposes of vicarious liability. Although Plaintiff

could locate no cases in which such a contract has been deemed void in Texas,

Plaintiff would point the court to persuasive authority in California, where a similar

statute was construed to void a realtor’s independent contractor agreement with his

sponsoring broker. See Gipson v. Davis Realty Co., 215 Cal. App. 2d 190 (1963);

See Appendix Ch. 3.

14
 Because Defendant MRM’s traditional motion for summary judgment relative

to the theory of respondeat superior is entirely predicated on the argument that

Defendant Taylor should be characterized as an independent contractor, and because

that characterization is statutorily prohibited, Defendant MRM’s motion should be

denied.

b. Because it dissuaded Taylor from purchasing additional
insurance, MRM should be estopped from using the
independent contractor agreement to escape exposure
that Taylor would otherwise have insured

Even if the independent contractor agreement cited by Appellee MRM were

deemed enforceable, the agreement on its face implies that MRM will accept a large

share of liability for Defendant Taylor’s conduct. Supp. CR 267-273; See Appendix

Ch. 4. Because the misleading document dissuaded Defendant Taylor from

purchasing additional insurance, or from investigating the need for same, MRM

should be estopped from using the independent contractor agreement to shield itself

from the exposure presented by Appellant’s claims. Id.

Section D within page 4 of the subject agreement states that “for

risks…arising from Agent’s negligent…breach of any law, regulation, or standard

of conduct that applies to Agent’s actions or activities as a licensed real estate sales

associate, Agent agrees to indemnify and hold [Appelle MRM] harmless from and

15
against that percentage of Liability that equals the percentage of commissions

payable to the Agent on the date of the incident or omission that gave rise to the

Liability occurred.” Id (emphasis added). Section B goes on within that same page

to define “Liability” to mean “all liability, claims, damages, losses, costs and

expenses that a party sustains or incurs as a result of or in connection with a

particular incident or situation”. Id. Thus, for “[all] damages”, “[all] claims”, and

“[all] losses that a party sustains” MRM only requires its agents to indemnify MRM

or hold MRM harmless from a (capped) portion of MRM’s liability. See Id.

This reads like a co-insurance requirement. One can imagine Dominos Pizza

telling its delivery drivers: “If you cause a crash, you must forfeit a portion of your

delivery tip to cover Dominos’ exposure”. Most delivery drivers would take that to

mean Dominoes was assuming responsibility for the rest of the exposure, or that

Dominos anticipated it would be vicariously liable for the driver’s conduct. The

same applies here, especially when viewed within the totality of the circumstances

of MRM’s sponsorship of Taylor’s license, including:

(1) MRM’s requirement that Taylor insure her car to a certain level, and to

have (MRM’s trade name) Keller Williams named as an additional

insured; CR 375 (59:4-8); and

16
 (2) the express vicarious liability requirement stated in the Texas Real

Estate License Act through which Taylor obtained her license. See Tex.

Occ. Code § 1101.803 (stating “[a] licensed broker is liable to… the

public… for any conduct engaged in under this chapter by… a

salesperson associated with or acting for the broker).

The clear implication of this agreement is that MRM anticipated its own

liability for losses arising from the agent’s negligence, and viewed that risk as a

routine part of its business. It only asked the agent to cover a portion of the MRM

exposure. Under the agreement, the agent’s percentage of responsibility for “all

claims” against MRM could never exceed the commission that she earned on the day

of the subject negligence. See Supp. CR 267-273; see Appendix Ch. 4.

To the extent Defendant Taylor was consciously or subconsciously mislead

by this agreement, and otherwise might have secured additional liability insurance

for herself, Defendant MRM should be estopped from using the agreement to shield

itself from the master-servant liability that the agreement implies is MRM’s.

c. Fact questions abound in the determination of the
independent-contractor question

Even if the Court finds the Occupations Code inapplicable, the question of

whether Defendant Taylor was an employee or independent contractor, is a factually

17
intense, multi-factored inquiry. Appellee’s MRM’s evidence fails to conclusively

establish that Defendant Taylor was an independent contractor under the “Pitchfork”

factors urged by MRM. Those factors are: (1) the independent nature of the

contractor’s business; (2) the contractor’s obligation to supply necessary supplies,

tools, and materials; (3) the contractor’s right to control the progress of the work; (4)

the actual control exercised by the employer; (5) the permanency of the work

relationship; (6) whether the parties believe they are creating an employer-employee

relationship; (7) the time for which she is employed; and (8) the method by which

she is paid. See Pitchfork Land and Cattle Co. v. King, 346 S.W.2d 598, 602-03

(Tex. 1961); see also Home Interiors & Gifts, Inc. v. Veliz, 695 S.W.2d 35, 41 (Tex.

App.-Corpus Christi 1985, writ ref. n.r.e.).

Appellant would show the court the following genuine issues of material fact

concerning those same factors:

i. The independent nature of Taylor’s
business

Texas law prohibits Defendant Taylor from engaging in any real estate

business without Appellee MRM’s sponsoring brokerage. Further, all of Defendant

Taylor’s real estate related activities would be illegal “unless [she] is sponsored by

a licensed broker and is acting for that broker.” See Tex. Occ. Code § 1101.351(c)

18
(emphasis added); See also above Section B(1)(a) of Appellant’s Brief, describing

the linkage between real estate salespersons and brokers created by the Texas Real

Estate License Act, and fact that virtually all known real estate related activities are

legally the actions of real estate brokers like MRM. Therefore, the nature of

Defendant Taylor’s real estate business is to be completely dependent upon Appellee

MRM’s sponsoring brokerage.

ii. Taylor’s obligation to supply necessary
supplies, tools, and materials

Appellee MRM supplied Taylor with a business card (showing Appellee’s

MRM’s trade name Keller Williams, and describing her as a Keller Williams “Real

Estate Agent”). Supp. CR 337. Defendant MRM supplied training, including a

dedicated training agent and training book, software training, a website containing

training materials, videos, forms, calculators, and kits. Supp. CR 306-11 (17:13-

18:12;19:16-19;23:7-24:7). Defendant MRM also supplied software for

electronically managing Taylor’s real estate transactions. Supp. CR 308-09 (19:16-

20:3). Defendant MRM also supplied packets and checklists to realtors like Taylor

to guide them through, e.g., the listing process and open houses. Supp. CR 373-74

(57:8-58:6).

19
 iii. Taylor’s right to control the progress of her
work

Most employees who are licensed professionals, whether realtors, engineers,

attorneys, or insurance adjusters, are likely to enjoy a high level of autonomy even

while remaining subject to their employer’s right of control. As such, it is no surprise

that Defendant Taylor was empowered to manage her real estate transactions with a

high degree of professional independence. It is telling, however, that Appellee MRM

nonetheless subjected her to a number of policies and procedural requirements, the

violation of which could be considered a “fire-able offense.” Supp. CR 375 (59:4-

10). Many of those policies are contained in the Keller Williams Policies and

Guidelines manual, excerpts from which are attached hereto See Supp. CR 379-93;

Appendix Ch. 5. That document, on page 1-1, starts off with a dramatic, if vague,

definition of “interdependence”, which quotes Stephen Covey to directly refute the

concept of “independence” in favor of the more magical paradigm of

“interdependence”. See Id. That interdependence is evident from the numerous ways

that Defendant MRM exercised control over Taylor including:

• Requiring Taylor to insure her car to a certain level, and to have Keller

Williams named as an additional insured. Defendant Taylor; Supp. CR

375 (59:4-8).

20
 • Requiring Taylor to keep her car clean (this one is particularly relevant

in this case as Ms. Taylor was—in addition to conducting other real

estate business—looking for a car wash at the time of the subject crash);

Supp. CR 333 (101:7-24); See also Supp. CR 389 ¶ 1-2; See generally

Supp. CR 267-273 and specifically Supp. CR 267 ¶ 3.

• Creating “standards” that Appellee MRM alleges Taylor violated

including the standard of turning in listing agreements within 3 days of

execution, refraining from performing manual labor on real property,

and refraining from hiring contractors to perform work. Supp. CR 368-

72 (49:22-52:3).

iv. The actual control exercised by Defendant
MRM

As partly-described in the preceding section, Defendant MRM exercised

control over its agents by contractually binding them to follow the aforementioned

100-plus page Policies and Guidelines manual. Supp. CR 333 (101:7-24); see

generally Supp. CR 267-273 and specifically CR 267 ¶ 3; see also Appendix Ch. 5.

This was not just a handout, but something the agents had to agree in writing to

follow. Id. Within the manual, control is exerted in the form of, e.g., section

“4.9.1.12 Conduct” which governs alcohol consumption, conduct at the market

21
center, and cooperation with other brokers. Supp. CR 366-67 (16:17-17:2);

Appendix Ch. 5. Likewise, the preceding section of this brief gives examples of

policies within the manual concerning the maintenance of a certain level of

automobile insurance covering MRM, and the need for agents to keep their cars

clean. The manual further instructs Taylor to, e.g., contact her sellers at least once

per week. See Supp. CR 390 ¶ 5 (Section 4.9.1.20.2). Further, in Section 4.9.1.20.3,

the manual instructs Taylor to maintain complete and accurate records, and, in clear

employer-speak, admonishes Taylor in bold letters that “there is no excuse for the

violation of this guideline by any associate”. See Supp. CR 390 ¶ 6 (Section

4.9.1.20.3).

Oddly, that bold admonition uses the watered-down term “guideline” instead

of the stronger, more accurate term “policy.” This is a transparent attempt by

Appellee MRM to enjoy absolute control without having to be responsible for that

control. This theme is repeated in Appellee MRM’s corporate representative Jessica

Tenant’s deposition. Although her lawyers sent requests for admissions to Defendant

Taylor asking Taylor to admit that “Keller Williams associates should not perform

repair work for listed properties”, Ms. Tenant testified that that is “not a demand”,

but rather “a professional standards suggestion.” Supp. CR 369-71 (50:13-52:1);

Supp. CR 395-399. Likewise, when she was asked about her lawyers’ request that

22
Defendant Taylor admit that Taylor was not allowed to hire contractors without

Keller Williams’ [MRM’s] express consent, Ms. Tenant backtracked and said that

there actually is no written policy on that, but that Defendant Taylor should have

talked to [Appellee MRM] about it. Id.

Such vagueness should not benefit the party who created it, especially in the

context of summary judgment.

v. The permanency of the working
relationship

Defendant Taylor’s real estate license has been solely sponsored by Appellee

MRM for nearly 10 years. Supp. CR 303-04 (6:7-7:18).

vi. Whether the parties believe they are
creating an employer-employee relationship

As pointed out in Appellee’s Motion for Summary Judgment, Defendant

Taylor has stated she believes she was an independent contractor. Supp. CR 211 ¶

1. However, she is also a lay witness. She has no reason to doubt the force and effect

of the independent contractor agreement she was made to sign when she joined

MRM. As above, Appellant Stroup maintains that the agreement is misleading and

void. Moreover, to the extent Taylor’s subjective belief about her employment status

was misinformed by Appellee MRM, her subjective belief should be given little if

any weight.

23
 vii. The time for which Taylor was employed

As above, Defendant Taylor’s real estate license has been solely sponsored by

Appellee MRM for nearly 10 years. Supp. CR 303-04 (6:7-7:18).

viii. The method by which Taylor was paid

All of Taylor’s compensation was paid by Appellee MRM (or its dba Keller

Williams). Supp. CR 372 (55:4-55:6).

Putting all of the above factors together, it is clear that genuine issues of

material fact exist as to whether Defendant Taylor was an independent contractor or

an employee. The trial court therefore erred in granting Appellee MRM’s traditional

motion for summary judgment.

2. Appellee MRM has failed to conclusively negate joint-
enterprise liability

In both its traditional and no evidence motions, Appellee MRM argues there

is no evidence supporting the existence, and no fact questions as to the absence of,

a joint enterprise through which Appellant Stroup could hold Appellee MRM

vicariously liable for Defendant Taylor’s actions. Supp. CR 143-44; 213-14.

Appellant Stroup agrees with the elements as stated in Appellee’s motion, and

that for joint-enterprise liability to attach, Appellant must establish: an agreement; a

common purpose; a community of pecuniary interest; and an equal right of control

24
between Defendant Taylor and Appellee MRM. See Supp. CR 143-144; Texas DOT

v. Able, 35 S.W.3d 608, 613 (Tex. 2000). Appellant also agrees that Appellant must

establish that Taylor was acting within the scope of that joint enterprise to hold

Appellee MRM vicariously liable. Supp CR 143-144; see also Aluminum Chemicals,

Inc. v. Bechtel Corp., 28 S.W.3d 64, 67 (Tex. App.--Texarkana 2000, no pet.)

Appellee MRM has wholly failed to offer evidence conclusively negating any

of those elements within its traditional motion for summary judgment. As such the

traditional motion for summary judgment should be denied on its face.

Within its no-evidence motion, Appellee MRM did not challenge the elements

of agreement, common purpose, or community of pecuniary interest. Instead

MRM’s no-evidence motion has challenged the elements of (1) equal right of

control; and (2) acting in the scope of the joint enterprise. Supp. CR 216-217. As to

equal right of control, there is ample evidence, as described above, that Taylor was

contractually bound to follow MRM’s policies including keeping her car clean, and

that she was doing exactly that leading up to the crash. Appellee MRM, who is

charged by the Texas Occupations Code with responsibility for the salesperson

Taylor’s actions, and who promulgated policies for its agents to follow, clearly had

the ability and right to tell Taylor what to do in connection with buying and listing

real estate. Meanwhile MRM’s corporate representative Jessica Tennant has testified

25
that the agent’s leadership committee was developed so that agents would “…have

a voice in the decision-making and how the office was run…” Supp. CR 371 (52:6-

21).

As for the question of scope, there is ample evidence that in a broad sense,

Taylor had traveled to east Austin from Lakeway Texas with the intent of devoting

the entire weekend of the crash to performing work on the property she was listing

at 2705 Crest Avenue. Supp. CR 318 (59:3-9). Taylor was the listing agent, and

Keller Williams Realty (trade name for Defendant MRM) was listed as the broker

on the listing agreement. Supp. CR 352-360.

The morning of the crash, Defendant Taylor had met with the head

landscaping worker, and had driven with him to Home Depot where she purchased

supplies including a chainsaw and chainsaw oil for use by the landscapers on the

subject house. Supp. CR 319-23 (60:17-61:9:4; 62:24-63:2; 63:19-64:12). The plan

was to clear trees to open up the view in order to improve the marketing of the

property. Supp. CR 322-23 (63:25-64:12). Taylor went to the hotel to check in with

him following the couple’s trip to Home Depot. Supp. CR 326 (70:11-22). Given

that Ms. Taylor testified that she was having an affair with the landscaper, there is a

fact question about whether she would have deviated from her real estate activities

at some point for romantic activities before returning to the enterprise of marketing

26
2705 Crest Ave. However, this red-hearing question would exist with any couple

who happened to work together. There is absolutely no evidence that the couple in

this case did anything but work on the day of the crash.

The summary judgment evidence shows that Taylor went to Home Depot,

returned to check in at the hotel with the landscaper (in anticipation of a multiple-

day job), dropped her stuff in the room, and was getting ready to return to the

worksite at 2705 Crest Avenue. At that point she decided to move her car out of the

sun, and in so doing, to peer around for a nearby car wash. Supp. CR 326-28 (70:23-

72:3). Importantly, the logical reason for her to move her car out of the sun at that

moment was that the couple was about to take the landscaper’s truck back to 2705

Crest Ave, leaving her car where it was parked in the August sun. Supp. CR 326

(70:11-71:3). Thus, even if a romantic detour had occurred after the trip to Home

Depot (which is contrary to what Taylor testified to), she was at a minimum re-

engaging with the enterprise of marketing 2705 Crest Avenue, the property for

which she was the contractual listing agent and Appellee MRM was the contractual

broker.

The Defendant’s suggestion that by looking for a car wash, Taylor somehow

deviated from her joint enterprise with MRM—when keeping one’s car clean was

an express directive from MRM—is clearly well short of conclusive. The fact that

27
Taylor didn’t plan to meet potential buyers that day is also irrelevant given that she

agreed in her deposition that the active makeover of the 2705 Crest Ave property

presented opportunities to discuss the impending sale with neighbors, who might

themselves be interested in selling property that Taylor could list, and which

Defendant MRM could make money from. Supp. CR 329-31 (76:21-78:23).

Ultimately, Defendant Taylor testified that she believes she was engaged in the

selling of real estate at the time of the subject crash. Supp. CR 329 (76:21-24).

3. Appellee MRM has failed to conclusively negate liability
under the Texas Occupations Code

Above, in Section B(1)(a) of this Brief, the applicability of the Texas

Occupations Code is discussed as a reason for voiding the independent contractor

agreement in this case. That information is repeated here for ease of reference and

in order to expand the argument.

Repeated text:

Chapter 1101 of the Texas Occupations Code is known as the Texas Real

Estate License Act (hereafter “the Act”). See Tex. Occ. Code § 1101.001. The Act

sets forth the authority, professional standards, and licensure requirements for

persons and entities engaged in real estate transactions in Texas, including real estate

“brokers” and “salespersons”. See Tex. Occ. Code. § 1101 et seq. In general terms,

28
the Act defines “brokers” as persons who are paid to perform certain acts (referred

to herein as “broker acts”) for others. See Tex. Occ. Code § 1101.002(1). Those

broker acts are presented within a statutory laundry list that covers virtually all of

the things the general public would commonly understand to be the job of a “realtor”

including: buying and selling real estate; listing real estate; locating real estate;

procuring prospects to accomplish the sale of real estate; and promoting the sale of

real estate. Id. The Act defines a “salesperson” as a person who is sponsored by a

licensed broker for the purpose of performing the above [broker] acts. See Tex. Occ.

Code § 1101.002(7). Further, the Act states that “[a] licensed salesperson may not

engage or attempt to engage in real estate brokerage unless the sales agent is

sponsored by a licensed broker and is acting for that broker. Tex. Occ. Code §

1101.351(c) (emphasis added).

In other words, all aspects of all real estate transactions in Texas are

technically carried out by real estate brokers, or by salespersons who are authorized

to engage in real estate brokerage for their sponsoring broker on the brokers’

behalves. As such, the Act establishes a master-servant relationship as a matter of

law, and assigns legal responsibility for all statutory broker acts to the brokers.

Section 1101.803 of the Act states “[a] licensed broker is liable to the commission,

the public, and the broker's clients for any conduct engaged in under this chapter by

29
the broker or by a salesperson associated with or acting for the broker. Tex. Occ.

Code § 1101.803 (emphasis added).

The Act contains no provision authorizing brokers to contractually assign that

responsibility back to the salespersons, and thus brokers like Defendant MRM have

a non-delegable duty to the public for the conduct of salespersons associated with

Defendant MRM.

Consequently, any agreement that purports to characterize a salesperson’s

relationship to her sponsoring broker as that of an independent contractor is simply

void and unenforceable for the purposes of vicarious liability. Although Plaintiff

could locate no cases in which such a contract was voided in Texas, Plaintiff would

point the court to persuasive authority in California, where a similar statute was

construed to void a realtor’s independent contractor agreement with his sponsoring

broker. See Gipson v. Davis Realty Co., 215 Cal. App. 2d 190 (1963). See Appendix

Ch. 3.

New text:

In its traditional and no evidence motion for summary judgment, Appellee

MRM asserts that the summary evidence shows Defendant Taylor was not

associated with or acting for Appellee MRM at the time of the subject crash; and

that there is no evidence Taylor was engaged in one of the acts specified in Section

30
1101.002(1) of the Texas Occupations Code. Supp. CR 214 ¶ 2; Supp. CR 217 ¶ 3.

Due to the linkage of the law as described above, if Taylor was performing

one of the acts described in 1101.002(1), then she automatically had to be doing it

for Appellee MRM pursuant to Section 1101.351(c). Thus, answering the question

of whether she was engaged in an act described by Section 1101.002(1) answers the

question of “acting for or associated with.”

Section 1101.002(1) provides the following list of acts that the law deems the

acts of the broker, whether performed by the broker or by a salesperson associated

with the broker, as long as they are performed with the expectation of compensation

for another:

“(A)….
(i) sells, exchanges, purchases, or leases real estate;
(ii) offers to sell, exchange, purchase, or lease real estate;
(iii) negotiates or attempts to negotiate the listing, sale,
exchange, purchase, or lease of real estate;
(iv) lists or offers, attempts, or agrees to list real estate for
sale, lease, or exchange;
(v) auctions or offers, attempts, or agrees to auction real
estate;
(vi) deals in options on real estate, including a lease to
purchase or buying, selling, or offering to buy or sell
options on real estate;
(vii) aids or offers or attempts to aid in locating or obtaining
real estate for purchase or lease;
(viii) procures or assists in procuring a prospect to effect the
sale, exchange, or lease of real estate;
(ix) procures or assists in procuring property to effect the

31
 sale, exchange, or lease of real estate;
(x) controls the acceptance or deposit of rent from a
resident of a single-family residential real property
unit;
(xi) provides a written analysis, opinion, or conclusion
relating to the estimated price of real property if the
analysis, opinion, or conclusion:
(a) is not referred to as an appraisal;
(b) is provided in the ordinary course of the
person's business; and
(c) is related to the actual or potential management,
acquisition, disposition, or encumbrance of an
interest in real property; or
(xii) advises or offers advice to an owner of real estate
concerning the negotiation or completion of a short
sale; and
(B) includes a person who:
(i) is employed by or for an owner of real estate to sell
any portion of the real estate; ...”

See Tex. Occ. Code § 1101.002(1) (emphasis added). The underlined portions

reflect the sections applicable to Taylor’s efforts on the day of the subject crash. As

described in detail above, within section B(2) concerning joint-enterprise, Taylor

admitted to having an affair with the landscaper. Putting aside the propriety of that

relationship from the standpoint of Defendant Taylor’s marriage, this was a couple—

boyfriend and girlfriend—who were in East Austin to perform landscaping work in

service of selling real estate. They spent the entire day oriented towards the

marketing 2705 Crest Avenue for Appellee MRM. They were both over an hour

from their respective homes in Spicewood and Lakeway, and were facing the

32
prospect of a large multi-day job. They obtained a hotel room to cope with that fact.

Leading up to the crash Taylor and the landscaper’s activities could be summarized

as:

• they tried to check in at the hotel first thing in the morning, but couldn’t

get in; Supp. CR 324-326; 328 (67:13-68:13; 70:11-22).

• they took the landscaper’s truck to Home Depot to get a chainsaw and

other supplies for the job ahead; Id.

• they returned to the hotel where they checked in, and set their bags

down in the room; Id.

• from there, Defendant Taylor went outside to move her car out of the

sun. (Note that a jury would be entitled to conclude that Taylor was

likely moving her car because she and the landscaper were about to take

his truck to the listed property in order to commence work. Rather than

a detour, this remains consistent with working on the property. Moving

her car was a logical first step in commencing work at the listed

property); Id. (67:6-12; 70:11-22).

• at some point as she is moving her car, Taylor decides to look to see if

a car wash is nearby. (This detour, if it was a detour at all, is incidental

and nonetheless consistent with directives from the defendant for

33
 agents to keep their car clean); Supp. CR 327 (71:4-22).

• Taylor ends up on the apron of the hotel driveway, peering around for

a touchless carwash; Id.

• She decides to exit the property and re-enter at the hotel one driveway

to the west, rather than reversing within the parking lot; Id.

• At that point she negligently pulls directly in front of the Plaintiff’s

motorcycle, which was traveling eastbound on Oltorf Street, resulting

in devastating injuries to Plaintiff. Supp. CR 314-317 (33:18-21; 34:24-

36:18); See also police report at Supp. CR 347-48; See Appendix Ch.7.

What is clear from these events is that Defendant Taylor was in east Austin

from far-off Lakeway because she was generally engaged in “selling real estate” as

specified in Section 1101.002(1)(A)(i), and/or she was “offering” to sell real estate

under Section 1101.002(1)(A)(ii), and/or she was “listing” real estate under Section

1101.002(1)(A)(iv). She could also be said to be continually engaged in procuring

property (she was coming back from getting the chainsaw and other materials) to

effectuate the sale of real estate, as specified in Section 1101.002(1)(A)(viii). For all

of this, she was at all times employed by the owner of the real estate, Reginald

Taylor, to sell the real estate pursuant to Section 1101.002(1)(B)(i). Therefore,

Appellee MRM has failed to conclusively negate this theory of liability and Plaintiff

34
is entitled to trial on the merits.

4. Texas Labor Code jurisprudence is persuasive in favor of ‘course and
scope’ versus ‘detour’ for each of Appellant’s theories of recovery.

Plaintiff has located no direct case law to guide the Court as to the ‘detour’

boundaries of “course and scope” within the context of the Texas Real Estate License

Act, or joint-enterprise liability. However, Texas Courts have long analyzed

questions arising from worker “detours”, “special missions”, and “dual purpose

travel” within the context of the Texas Labor Code. Those cases are persuasive to

the extent they address Texas public policy questions about who should bear risks

that arise from business activity in Texas. See e.g., Tex. Mut. Ins. Co. v. Jerrols, 385

S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd); Zurich Am. Ins.

Co. v. McVey, 339 S.W.3d 724 (Tex. App.—Austin 2011, pet. denied).

a. The dual purpose rule

Texas Courts have followed the “dual purpose rule”, which holds that dual-

purpose travel (combined personal and business travel) is within the course and

scope of employment if: (1) the travel to the place of occurrence, here Lakeway to

east Austin, or even Home Depot to the La Quinta hotel, or even Taylor’s initial

parking spot to the crash location, would have occurred even if no personal or private

affairs were furthered by the travel; and (2) the travel would not have occurred had

35
there not been affairs of the business to be furthered by the travel. See Tex. Mut. Ins.

Co. v. Jerrols, 385 S.W.3d 619, 625 (Tex. App.—Houston [14th Dist.] 2012, pet.

dism'd)

If such a rule were followed here, the fact of Defendant Taylor’s affair with

the landscaper would be inconsequential in view of the fact that Taylor’s presence

in east Austin that day would have occurred even if she selected a different

landscaper to complete the work, and would not have occurred but for the business

interests that were furthered in improving a property that was listed for sale by

Defendant Taylor and Appellee MRM. Likewise, Taylor moving her car out of the

sun in preparation for taking the landscaper’s truck from the hotel to the jobsite was

part of the job. Likewise, Taylor taking the opportunity to peer around for car washes

while moving her car, does not rise to the level of a distinct personal errand that

would remove her from the course and scope of her employment (or joint enterprise

activities, or real estate activities), especially in view of MRM’s directive requiring

agents like Taylor to keep their cars clean as a part of their work.

b. The continuous coverage doctrine

This Court’s own Labor Code jurisprudence has repeatedly affirmed the

“continuous coverage” doctrine for out-of-town business travel. “An employee is

generally within the course and scope of his employment when the employer's

36
business requires him to travel away from the employer's premises.” Zurich Am. Ins.

Co. v. McVey, 339 S.W.3d 724, 731 (Tex. App.—Austin 2011, pet. denied)(citing

Shelton v. Standard Ins. Co., 389 S.W.2d 290, 293-94 (Tex. 1965); Aetna Cas. &

Sur. Co. v. Orgon, 721 S.W.2d 572, 574-75 (Tex. App.—Austin 1986, writ ref'd

n.r.e.).

“In fact, relying on what has come to be known as the "continuous coverage"

rule, the supreme court and this Court have both held that the course and scope of

employment in cases of overnight travel is broad, extending even beyond the actual

act of travel itself to include injuries sustained during ‘down time.’” Id. (citing

Shelton, 389 S.W.2d at 293-94 (employee injured crossing street from hotel to

restaurant was in course and scope); Orgon, 721 S.W.2d at 575 (employee injured

by broken glass in hotel was in course and scope).

As such, if this were a workers’ compensation case, it is clear that Texas law

would allocate the risk of injury to the business whose interest was furthered by

Taylor’s travel to east Austin from Lakeway—in this case Appellee MRM.

In any case, this Court has previously instructed that that, generally speaking,

“[c]ourse and scope of employment is . . . a fact issue like negligence or proximate

cause.” Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex. App. – Austin

2004, no pet.).

37
 In sum, there are, at a minimum, genuine issues of material fact as to whether

Taylor was performing an act that would bring her within the scope of the Texas

Occupations Code’s requirement that real estate brokers like MRM answer for the

tortious conduct of their salespersons. The same is true for respondeat superior

liability, and joint-enterprise liability.

C. The Trial Court Erred in Granting MRM’s No Evidence Motion for
Summary Judgment

Because Appellee MRM’s traditional motion for summary judgment concerns

the same theories of liability attacked in its no evidence motion for summary

judgement, Plaintiff’s above responses to Appellee MRM’s traditional motion are

already responsive to Appellee’s No Evidence Motion for Summary Judgment, and

are hereby incorporated by reference. The same evidence cited above that raises

genuine issues of material fact, likewise presents more than a scintilla of evidence

for each of the elements challenged within Appellee MRM’s no-evidence motion.

As such, the trial court erred in granting Appellee’s no-evidence motion for

summary judgment.

PRAYER

Appellee MRM has failed to offer sufficient evidence to conclusively negate

its vicarious liability for the tortious conduct of Defendant Taylor. Therefore, the

38
trial court erred in granting Appellee MRM’s Traditional Motion for Summary

Judgement.

Further, the summary evidence meets and exceeds the level that would enable

reasonable and fair-minded people to differ in their conclusions with respect to each

of the challenged elements within Appellant Stroup’s theories of vicarious liability,

including respondeat superior, joint enterprise, and statutory vicarious liability.

Because Stroup presents more than a scintilla of evidence to support each of the

challenged elements of Stroup’s cause of action, Appellee’s no-evidence motion for

summary judgment was improperly granted, and Stroup is entitled to a trial on the

merits.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

reverse the order of the trial court granting Defendant’s Traditional and No-Evidence

Motion for Summary Judgment, and for such other and further relief to which

Appellant’s may be entitled.

39
Respectfully submitted,

FOGELMAN & VON FLATERN, LLP
3101 Bee Cave Road, Suite 270
Austin, Texas 78746
(512) 375-3198
(512) 372-3209 (telecopier)

By: /s/ Aaron von Flatern
Aaron von Flatern
State Bar No. 24076892
aaron@fvlawfirm.com

COUNSEL FOR APPELLANT

40
 CERTIFICATE OF SERVICE
The undersigned certifies that on January 1, 2018 a true and correct copy of
the above and foregoing was served via electronic filing to all counsel below:

WALTERS, BALIDO & CRAIN, L.L.P.
Gregory R. Ave
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, TX 75231
AveEdocsNotifications@wbclawfirm.com

COUNSEL FOR APPELLEE

/s/ Aaron von Flatern
Aaron von Flatern

CERTIFICATE OF COMPLIANCE

I certify that this document contains 9,095 words (counting all parts of the
document). The body text is in 14 point font, and the footnote text is in 12 point font.

/s/ Aaron von Flatern
Aaron von Flatern

41
APPENDIX

I. Judgment on appeal

II. Tex. Occ. Code Excerpts

III. Gibson v. Davis Realty

IV. Independent Contractor Agreement

V. Keller Williams Policies and Guidelines

VI. Listing Agreement

VII. Police Report
I. Judgment on Appeal
 Filedin The DistrictCourt
of TravisCounty,Texas ..:i:;;:

FEB2_8 2017 -/ft-
CAUSE NO . D-1-GN-15-004909 At ~a,~-
VelvaL. Pee; DistricClerk
SARAH DENISE STROUP, AS LEGAL § IN THE DISTRICT COURT OF
GUARDIAN OF DOUGLAS LEE STROUP, §
AN INCAPACITATED PERSON §
§
vs. § TRAVIS COUNTY, TEXAS
§
PENNY HARRINGTON TAYLOR AND §
MRM MANAGEMENT, INC. § 9g th JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT, MRJ\1 MANAGEMENT, INC.'S FIRST AMENDED
TRADITIONAL AND NO-EVIDENCJB:MOTION FOR SUMMARY JUDGMENT

On February 22, 2017, the Court considered Defendant MRM Management, Inc.'s First

Amended Traditional and No-Evidence Mot ion for Summary Judgment (the "Motion") . After

reviewing the Motion , Plaintiffs Response , the evidence presented , the arguments of counsel,

and applicable law, the Court is of the opinion that the Motion should be and is hereby

GRANTED.

IT IS THEREFORE ORDERED that Defendant MRM Management , Inc. 's First

Amended Traditional and No-Evidence Mot ion for Summary Judgment is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs claims against Defendant MRM

Management , Inc. are DISMISSED with prejudice.

-rv
SIGNED this ')J day of February 20 17.

11111111
1 11111111111111111111111111111111111111
IIIIIIII
005071659

ORDER GRANTING DEFENDANT, MRM MANAGEMENT, INC.'S FIRST AMENDED
TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
407
II. Tex. Occ. Code Excerpts
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User Name: aaronvonflatern
Date and Time: Thursday, December 28, 2017 10:36:00 AM CST
Job Number: 58744145

Documents (4)

1. Tex. Occ. Code § 1101.001
Client/Matter: -None-
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2. Tex. Occ. Code § 1101.002
Client/Matter: -None-
Search Terms:
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3. Tex. Occ. Code § 1101.351
Client/Matter: -None-
Search Terms:
Search Type:

4. Tex. Occ. Code § 1101.803
Client/Matter: -None-
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 Tex. Occ. Code § 1101.001
This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® >
Occupations Code > Title 7 Practices and Professions
Related to Real Property and Housing > Subtitle A
Professions Related to Real Estate > Chapter 1101
Real Estate Brokers and Sales Agents [Expires
September 1, 2019] > Subchapter A General
Provisions [Expires September 1, 2019]

Sec. 1101.001. [Expires September 1,
2019] Short Title.

This chapter may be cited as The Real
Estate License Act.

History

Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B.
2813), § 2, effective June 1, 2003.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2017 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.

End of Document
 Tex. Occ. Code § 1101.002
This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature
estate;
Texas Statutes & Codes Annotated by LexisNexis® >
Occupations Code > Title 7 Practices and Professions (vii) aids or offers or attempts to aid
Related to Real Property and Housing > Subtitle A in locating or obtaining real
Professions Related to Real Estate > Chapter 1101 estate for purchase or lease;
Real Estate Brokers and Sales Agents [Expires
(viii) procures or assists in
September 1, 2019] > Subchapter A General
procuring a prospect to effect
Provisions [Expires September 1, 2019]
the sale, exchange, or lease of
real estate;
Sec. 1101.002. [Expires September 1, (ix) procures or assists in procuring
2019] Definitions. property to effect the sale,
exchange, or lease of real
estate;
In this chapter:
(x) controls the acceptance or
(1) “Broker”: deposit of rent from a resident of
(A) means a person who, in exchange a single-family residential real
for a commission or other valuable property unit;
consideration or with the (xi) provides a written analysis,
expectation of receiving a opinion, or conclusion relating
commission or other valuable to the estimated price of real
consideration, performs for another property if the analysis, opinion,
person one of the following acts: or conclusion:
(i) sells, exchanges, purchases, or (a) is not referred to as an
leases real estate; appraisal;
(ii) offers to sell, exchange, (b) is provided in the ordinary
purchase, or lease real estate; course of the person’s
(iii) negotiates or attempts to business; and
negotiate the listing, sale, (c) is related to the actual or
exchange, purchase, or lease of potential management,
real estate; acquisition, disposition, or
(iv) lists or offers, attempts, or encumbrance of an interest
agrees to list real estate for sale, in real property; or
lease, or exchange; (xii) advises or offers advice to an
(v) auctions or offers, attempts, or owner of real estate concerning
agrees to auction real estate; the negotiation or completion of
a short sale; and
(vi) deals in options on real estate,
including a lease to purchase or (B) includes a person who:
buying, selling, or offering to (i) is employed by or for an owner
buy or sell options on real of real estate to sell any portion
 Page 2 of 2
Tex. Occ. Code § 1101.002

of the real estate; or who:
(ii) engages in the business of (A) represents a principal through
charging an advance fee or cooperation with and the consent of
contracting to collect a fee a broker representing the principal;
under a contract that requires the and
person primarily to promote the (B) is not sponsored by or associated
sale of real estate by: with the principal’s broker.
(a) listing the real estate in a
publication primarily used History
for listing real estate; or
(b) referring information about Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B.
the real estate to brokers. 2813), § 2, effective June 1, 2003; am. Acts 2003,
78th Leg., ch. 1276 (H.B. 3507), § 14A.151,
(1-a) “Business entity” means a “domestic effective September 1, 2003; am. Acts 2011, 82nd
entity” or “foreign entity” as those Leg., ch. 1064 (S.B. 747), § 1, effective September
terms are defined by Section 1.002, 1, 2011; am. Acts 2015, 84th Leg., ch. 1158 (S.B.
Business Organizations Code, that is 699), § 2, effective January 1, 2016.
qualified to transact business in this
state.
Texas Statutes & Codes Annotated by LexisNexis®
(2) “Certificate holder” means a person
Copyright © 2017 Matthew Bender & Company, Inc.
registered under Subchapter K. a member of the LexisNexis Group. All rights reserved.
(3) “Commission” means the Texas Real
Estate Commission. End of Document
(4) “License holder” means a broker or
sales agent licensed under this chapter.
(5) “Real estate” means any interest in real
property, including a leasehold, located
in or outside this state. The term does
not include an interest given as security
for the performance of an obligation.
(6) “Residential rental locator” means a
person who offers for consideration to
locate a unit in an apartment complex
for lease to a prospective tenant. The
term does not include an owner who
offers to locate a unit in the owner’s
complex.
(7) “Sales agent” means a person who is
sponsored by a licensed broker for the
purpose of performing an act described
by Subdivision (1).
(8) “Subagent” means a license holder
 Tex. Occ. Code § 1101.351
This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature
Texas Statutes & Codes Annotated by LexisNexis®
Texas Statutes & Codes Annotated by LexisNexis® > Copyright © 2017 Matthew Bender & Company, Inc.
Occupations Code > Title 7 Practices and Professions a member of the LexisNexis Group. All rights reserved.
Related to Real Property and Housing > Subtitle A
Professions Related to Real Estate > Chapter 1101
Real Estate Brokers and Sales Agents [Expires End of Document

September 1, 2019] > Subchapter H License
Requirements [Expires September 1, 2019]

Sec. 1101.351. [Expires September 1,
2019] License Required.

(a) Unless a person holds a license issued
under this chapter, the person may not:
(1) act as or represent that the person is a
broker or sales agent; or
(2) act as a residential rental locator.
(a-1)Unless a business entity holds a license
issued under this chapter, the business
entity may not act as a broker.
(b) An applicant for a broker or sales agent
license may not act as a broker or sales
agent until the person receives the license
evidencing that authority.
(c) A licensed sales agent may not engage or
attempt to engage in real estate brokerage
unless the sales agent is sponsored by a
licensed broker and is acting for that
broker.

History

Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B.
2813), § 2, effective June 1, 2003; am. Acts 2011,
82nd Leg., ch. 1064 (S.B. 747), § 5, effective
September 1, 2011; am. Acts 2015, 84th Leg., ch.
1158 (S.B. 699), § 29, effective January 1, 2016.
 Tex. Occ. Code § 1101.803
This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® >
Occupations Code > Title 7 Practices and Professions
Related to Real Property and Housing > Subtitle A
Professions Related to Real Estate > Chapter 1101
Real Estate Brokers and Sales Agents [Expires
September 1, 2019] > Subchapter Q General
Provisions Relating to Liability Issues [Expires
September 1, 2019]

Sec. 1101.803. [Expires September 1,
2019] General Liability of Broker.

A licensed broker is liable to the
commission, the public, and the broker’s
clients for any conduct engaged in under
this chapter by the broker or by a sales
agent associated with or acting for the
broker.

History

Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B.
2813), § 2, effective June 1, 2003; am. Acts 2015,
84th Leg., ch. 1158 (S.B. 699), § 89, effective
January 1, 2016.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2017 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.

End of Document
III. California Case -Gibson v. Davis Realty
Gipson v. Davis Realty Co.
[Civ. No. 20032. First Dist., Div. One. Apr. 18, 1963.]

THOMAS WESLEY GIPSON, a minor, etc., et al., Plaintiffs and Appellants, v. DAVIS
REALTY COMPANY, Defendant and Respondent.

COUNSEL

Walkup & Downing, Bruce Walkup, Robert Ransom and Wiliam B. Boone for Plaintiffs
and Appellants.

Hadsell, Murman & Bishop, Bishop, Murray & Barry, Herbert Chamberlain and Nelson
Barry for Defendant and Respondent.

OPINION

MOLINARI, J.

This is an appeal from a judgment in favor of the defendant, Davis Realty Company, a
corporation, in an action for damages for personal injuries.

Statement of the Case

On April 4, 1957, Mrs. Jane Gipson, who was pregnant with child, was being transported
by ambulance to the Stanford Hospital where her child was to be delivered. A collision
between the ambulance and an automobile owned and driven by Roland Shugg occurred
at the intersection of 26th Avenue and Clement Street in San Francisco. The accident
occurred at about 12:20 p.m. The child was born about 40 minutes after the accident. The
child showed signs of brain damage immediately after the accident, it being subsequently
determined that such damage was permanent and that the child was suffering from a
disability diagnosed as cerebral palsy. A personal injury action was thereafter instituted
by the child's father, Edward T. Gipson, as guardian ad litem on behalf of the child, by the
said father in his individual capacity, and by Mrs. Gipson against the ambulance company
and its driver, and against Shugg and Davis Realty Company, a corporation, as the
alleged employer of Shugg. The cause proceeded to trial ultimately with the child (by his
said guardian) and Edward T. Gipson, individually, as plaintiffs, and Davis Realty
Company as the sole defendant. A trial was had before a jury and a verdict was returned
against the plaintiffs fn. 1 and for the defendant. fn. 2 No attack is made on this appeal
as to the substantiality of the evidence, the appeal being directed to the propriety of
certain instructions and rulings made by the trial court. fn. 3 [215 Cal. App. 2d 196]

Did the Court Commit Prejudicial Error in the Giving of Instructions Regarding Burden of
Proof?

1
[1] The trial court gave an instruction on its own motion as follows: "Where the evidence
is contradictory, your decision must be in accordance with the preponderance thereof. It
is your duty, however, if possible to reconcile such contradiction so as to make the
evidence reveal the truth. If you are in doubt as to the preponderance of the whole
evidence, then you must resolve that doubt in favor of the party who has not the burden
of proof." fn. 4 (Italics added.) The appellants assert that this instruction is prejudicially
erroneous in that it tells the jury that the appellants were required not only to prove their
case by a preponderance of the evidence, but that they were required to convince the
jury beyond all doubt as to the sufficiency of their proof.

A reading of the instruction does not indicate that the jury was told that the appellants
were required to prove their case beyond all doubt. What the jurors were told, however,
was that if they were in doubt as to whether the evidence preponderated in favor of the
appellants, they were then to find that the appellants had not met the burden of proof.
While we are of the opinion that instructions using the word "doubt" ought to be avoided
in civil cases on the subject of burden of proof and preponderance of the evidence, we
do [215 Cal. App. 2d 197] not believe that the instant instruction is erroneous. Although,
inartfully drawn, its effect, when coupled with the other instructions given by the court on
the subject, fn. 5 was to tell the jury that if, after weighing the whole evidence in the case,
they were in the subjective state of being uncertain as to whether the evidence tending to
prove the appellants' allegations had the greater weight, probability, quality and
convincing effect than that presented by the opposing evidence, they were to decide that
the appellants had not met the burden of proof. The jurors were not told by this instruction
that the things which the appellants were required to prove must not admit of any doubt,
but rather, that, if after weighing the whole evidence in support of these things, they were
in the frame of mind where they could not say that such evidence preponderated on the
side of the appellants, they were to conclude that it did not so preponderate.

The appellants have cited several cases in support of their assertion of error, fn. 6 but
these are distinguishable from the instruction in the instant case primarily because of the
specific language used, and the connotation it conveyed, that the degree of certainty
indicated with reference to the particular allegations to be proved must not only be beyond
doubt, but must not admit of any doubt at all. In Greenleaf v. Pacific Tel. & Tel. Co., 43
Cal. App. 691, 693 [185 P. 872], the portion of the instruction which resulted in a reversal
read as follows: " '[A]nd if the preponderance of the evidence fails to satisfy you that the
fire was so caused, or leaves in your mind any doubt, confusion or uncertainty as to the
origin of the fire, your verdict should be for the defendant.' " (P. 693.) The erroneous
instruction given in Colbert v. Borland, 147 Cal. App. 2d 704, 712 [306 P.2d 53], stated
that: " 'The burden is upon each plaintiff in these cases to prove the affirmative of his case
by a preponderance of the evidence. Therefore, you may not speculate as to whether any
conduct on the part of either defendant was a proximate cause of the accident or of any
one of plaintiff's injuries or damages, and if the evidence leaves these things a matter of
conjecture or doubt, then that plaintiff has not sustained the burden of [215 Cal. App. 2d
198] proof required of him under the law as against that defendant.' " (Italics partly added.)
The instruction given in Meschini v. Guy F. Atkinson Co., 160 Cal. App. 2d 609, 615 [325
P.2d 213], was almost identical to the one condemned in Colbert. In Banes v. Dunger, 181

2
Cal. App. 2d 276, 282 [5 Cal. Rptr. 278], the court gave an instruction to the effect that
the jury was not to speculate as to any injuries claimed by the plaintiffs, and that if the
evidence left the existence or cause of any alleged injuries a matter of conjecture or doubt,
that then the plaintiffs had not sustained the burden of proof. The Perrett v. Southern Pac.
Co., 73 Cal. App. 2d 30 [165 P.2d 751], case did not involve the use of the word "doubt."
There an instruction was given that the defendant could be held liable only " 'upon proof
which satisfies your mind that the plaintiff's injuries were proximately caused by some
negligence upon its part.' " (P. 38; italics added.)

In Popejoy v. Hannon, 37 Cal. 2d 159 [231 P.2d 484], the court on its own motion
instructed that: " 'The defendants, however, are not required to prove by a preponderance
of the evidence that they were free from negligence which proximately caused the lumber
to fall. They are bound to produce only sufficient evidence to create in your minds such
doubt as to why the lumber fell that you cannot say you are convinced by a preponderance
of the evidence that the falling of the lumber was proximately caused by the negligence
of the defendants.' " (Pp. 164-165.) The defendants there complained of the instruction,
and while the appellate court had some misgivings as to the instruction (not because of
the use of the word "doubt," but because it tended to place upon the defendants the
requirement to present direct evidence either of their freedom from negligence or the
absence of proximate cause), it held that the instruction was not prejudicial under
circumstances wherein an instruction was given at the request of the defendants
substantially in the form of BAJI No. 21. fn. 7 The court there said that there was "little
difference" between the challenged instruction and the one requested by the [215 Cal.
App. 2d 199] defendants, and that "The effect of the instruction complained of was to say
that the Hannons [the defendants], in order to defeat Popejoy's [the plaintiff's] claim, had
the duty to produce a preponderance of evidence to the contrary." fn. 8 (P. 165.)

It should be here noted that the appellants themselves claim error on the part of the court
in failing to give an instruction requested by them containing the following language: "It is
the duty of the jury to decide for the plaintiff if the weight of the evidence preponderates,
according to the reasonable probability of truth, in favor of the plaintiff's claims, even
though the minds of the jurors are not free from doubt." (Italics added.) The court did not
give this instruction but placed thereon the notation: "Given as Modified." The court was
apparently of the opinion that in essence this instruction was covered by the subject
instruction to the extent that the former was modified by the latter. We see little difference
between the two instructions. Suffice it to say, the terminology "greater probabilities of
truth," "probability of the truth" and the "greater probability" with reference to the meaning
of "preponderance of evidence" in burden of proof instructions is in common use by the
courts and has been approved. (See Popejoy v. Hannon, supra, 37 Cal. 2d 159; and see
BAJI No. 21, rev. 1962.) fn. 9 The word "probability" by its very definition leaves some
room for doubt. In Brown v. Beck, 63 Cal. App. 686 [220 P. 14], we find the following
language: " 'Probability' means the state or character of being probable. Webster's and
the Century dictionaries define 'probable' as follows: 'Having more evidence for than
against; supported by evidence which inclines the mind to belief but leaves some room
for doubt; likely.' This definition is accepted in numerous cases in which the word
'probable' is construed." (Pp. 697-698.)

3
Did the Court Commit Prejudicial Error in the Giving and Refusing to Give Instructions as
to the Effect of the Employment Contract?

At the time of the accident in question Shugg was one of four stockholders in the
respondent corporation. He was neither an officer nor a director of the corporation. On
February 19, 1957, Shugg entered into a contract with the respondent [215 Cal. App. 2d
200] entitled "Desk Space Contract with Tenant- Salesman." According to said contract
Shugg agreed to pay 50 per cent of the profits from his real estate activities in exchange
for the desk space, telephone, stenographic, and bookkeeping services located at 5000
Geary Boulevard, San Francisco. The said agreement further provided that Shugg was
not to be deemed to be an employee of the respondent, and that the latter did not control
or have any right of control over Shugg's acts. Attached to the contract was a separate
agreement concerning the disposition of gross commissions, a detailed schedule setting
out the division of various sales commissions, and a list of working conditions one of
which was that all employees were required to show a Mrs. McAnaw fn. 10 that they
carried adequate automobile liability insurance. Other conditions and stipulations made
reference to "salesman" and to "broker." Testimony was adduced at the trial to the effect
that the above contract was entered into with the intent of saving the necessity of keeping
bookkeeping records and with the intent on the part of the respondent to treat its salesmen
as independent contractors. Shugg testified, however, that it was not the intent to make
the salesman independent contractors because the salesmen knew that they could not
be such as they were not licensed as brokers.

The evidence discloses that Shugg was licensed as a real estate salesman only, and that
he never had been licensed as a broker. It appears that all transactions entered into by
Shugg were in compliance with the California Business and Professions Code regulating
real estate transactions; that all real estate deals made by Shugg were made in the name
of "Davis Realty"; that deposit receipts and similar papers were signed " 'Davis Realty, by
R. P. Shugg' "; and that all listings brought in by Shugg were signed as listings of Davis
Realty which would remain the property of Davis Realty if Shugg resigned. There was
testimony, also, that all advertising was in the name of Davis Realty; that Shugg, when
conducting a transaction, represented to customers that he was acting for Davis Realty;
that the salesmen were expected to rotate "floor days" during which they stayed in the
office all day, took calls, and met people who came in off the street; and that Shugg was
required, as a salesman, to satisfy Mrs. McAnaw that he had adequate automobile liability
insurance. [215 Cal. App. 2d 201]

The "Working Agreement" referred to above provided that all salesmen could be
terminated on 30-day notice. In this regard, Shugg testified that a couple of salesmen
were asked to transfer their licenses to other brokers; and Ross, respondent's president,
testified that while the company had never fired anyone, a couple of salesmen were asked
to terminate because of an infraction of policy.

After defining for the jurors the meaning of "independent contractor" and "agent," and
instructing them that if they found Shugg to be an independent contractor then the
respondent would not be liable, but if they found him to be an agent, acting within the

4
scope of his authority at the time of the accident, the respondent would be liable, the court
gave the following instruction with regard to the employment contract between Shugg and
Davis Realty Company, to wit: "The contract which exists between the Davis Realty
Company and Roland Shugg is prima facie evidence of the relationship between them.
That is to say in the absence of any other evidence it is the controlling factor in
determining whether or not Roland Shugg was at the time of the accident an independent
contractor. However, where further evidence is introduced with respect to the actual
working arrangement between the parties you may take this into consideration in making
your decision as to the relationship between the parties. You may look at the actual
working arrangement in the light of the rules previously read to you and recall that the
decisive test of the relationship is who has the right to direct what shall be done, when
and how it shall be done. Or to put the test in another form, who has the right to general
and immediate control over the progress and method of the work involved." (Italics
added.)

The appellants contend that prejudicial error was committed by the trial court in the giving
of this instruction. The objection is directed to the use of the words "prima facie evidence"
and "controlling factor. ..." It is argued by the appellants that this instruction purported to
attribute to the contract some conclusive or presumptive effect. The appellants assert that
the jury could find by the other evidence produced that the rule relationship between
Shugg and Davis Realty was that of principal and agent and that in so doing the jury was
at liberty to ignore the provisions of the contract which purport to negate such relationship.
The appellants argue further that while the court did instruct the jury that it "may" consider
such other evidence, a correct instruction [215 Cal. App. 2d 202] would have stated that
it "must" consider such evidence. The proper instruction, say the appellants, was that
embodied in their proposed instruction number 65, which the court refused to give. fn. 11
The appellants claim that such refusal was prejudicial error.

[2] The instruction given was a correct statement of the law insofar as it declared that the
relation of the parties to a written contract of employment is prima facie that which is
expressed by the terms of their writing. (Luckie v. Diamond Coal Co., 41 Cal. App. 468,
479 [183 P. 78]; Stewart & Nuss v. Industrial Acc. Com., 55 Cal. App. 2d 501 [130 P.2d
985].) [3] It is proper, moreover, in view of the established rule that parol evidence is
admissible in an action by one not a party to an employment contract to show the true
relationship between the parties (Broder v. Epstein, 101 Cal. App. 2d 197, 199 [225 P.2d
10]; Marx v. McKinney, 23 Cal. 2d 439, 442 [144 P.2d 353]; Luckie v. Diamond Coal Co.,
supra, p. 478; and see Code Civ. Proc., § 1856), for a trial court to admit extrinsic
evidence to be weighed against the presumption afforded by such prima facie evidence.
Such extrinsic evidence was so admitted in the present case. The questioned instruction,
however, tells the jury that it "may" take such evidence into consideration. [4] While in the
construction of statutes the word "may" is often interpreted to mean "must" or "shall," the
word is primarily and ordinarily a permissive term and is so understood by laymen. The
word "may" here imported to the jury that it might, or might not, at its option, consider
such evidence. (See White v. Disher, 67 Cal. 402, 404 [7 P. 826].) [5] A jury is duty bound
to consider and weigh all of the evidence received by the court under appropriate
instructions. (Borenkraut v. Whitten, 56 Cal. 2d 538, 546 [15 Cal. Rptr. 635, 364 P.2d

5
467]; Ensign v. Southern Pac. Co., 193 Cal. 311, 323 [223 P. 953].) The instruction [215
Cal. App. 2d 203] proposed by the appellants, on the other hand, appears to state the
rule of Broder and Luckie correctly and should have been given by the court, fn. 12
assuming, of course, that it was proper for the court to instruct on the effect of the
employment contract.

[6a] We are of the opinion, however, that it was error for the court to have given any
instructions on the effect of the employment contract because Shugg was an agent of the
respondent as a matter of law. A proper instruction, therefore, would have been one so
advising the jury. In Grand v. Griesinger, 160 Cal. App. 2d 397 [325 P.2d 475], it was held
that a real estate salesman "is strictly the agent of the broker." (P. 406; italics added.) The
appellate court was there called upon, in a salesman license revocation case, to interpret
the Real Estate Act (Bus. & Prof. Code, §§ 10000-11709) in its application to the
relationship between a real estate broker and a real estate salesman. In discussing the
applicable statutes the reviewing court pointed out that "[t]he differences in language are
small, but the divergence in import is large." (P. 405.) After citing sections 10131 fn. 13
and 10132, fn. 14 defining "real estate broker" and "real estate salesman," respectively,
the court observed as follows: "A broker performs the specified services 'for another or
others,' meaning the public, while a salesman must be 'employed by a licensed real estate
broker.' Both act for compensation, but the salesman cannot 'be employed by or accept
compensation from any person other than the broker under whom he is at the time
licensed.' " (P. 405; italics added; citing § 10137.) The [215 Cal. App. 2d 204] court went
on to point out that a salesman can only get a license on the recommendation of the
broker who is to be his employer (§ 10151); that when a salesman's application is granted
his license goes into possession of his broker-employer and there remains until cancelled
or the salesman leaves the employ of the broker (§ 10160); and that the broker must "
'exercise reasonable supervision over the activities of his salesmen' " or hazard the
suspension or revocation of his own license (§ 10177, subd. (h); p. 405]. The conclusion
reached by Grand, after a review of the foregoing statutes and other related provisions,
is that: "The entire statutory scheme requires the broker actively to conduct his brokerage
business and to supervise the activities of his salesmen." (P. 406.)

The respondent maintains that whether a real estate salesman is an employee or agent
on the one hand, or an independent contractor on the other, is a question of fact
dependent upon the particular circumstances of each case. In support of this proposition
it cites the following cases: California Emp. Stab. Com. v. Norins Realty Co. (1946) 29
Cal. 2d 419 [175 P.2d 217]; California Emp. Stab. Com. v. Morris (1946) 28 Cal. 2d
812 [172 P.2d 497]; and Royal Indem. Co. v. Industrial Acc. Com. (1930) 104 Cal. App.
290 [285 P. 912]. In Morris the question before the Supreme Court was whether a real
estate salesman was to be deemed "in employment" within the meaning of the
Unemployment Insurance Act. The court held that "[t]he Real Estate Act ... does not
establish as a matter of law the status of every salesman as being 'in employment' within
the meaning of the Unemployment Insurance Act." (P. 817.) The rationale of Morris is that
"[t]he Real Estate Act of this state does not expressly give the employer the right to control
the manner and means of accomplishing the result desired, nor do its provisions
conclusively negative all of the other factors to be considered in determining whether one

6
is an independent contractor. Accordingly, the occupation of real estate salesman, insofar
as the Unemployment Insurance Act is concerned, is one that may be classified as that
of an employee, or an independent contractor, depending upon the facts of the particular
case." (P. 818; italics added.) Norins Realty Co. also involved the applicability of the
Unemployment Insurance Act to real estate salesmen. It follows the holding in Morris.
The Royal Indem. Co. case was concerned with workmen's compensation benefits. Like
Morris, it held that whether the relationship of a real estate salesman to a broker is that
of [215 Cal. App. 2d 205] an employee or independent contractor is a question
depending upon the facts of the particular case. The holding there turned upon the lack
of any evidence showing control over the means, manner or mode of the work exercised
by the salesman.

We are persuaded that the distinction between Grand, on the one hand, and Morris,
Norins Realty Co. and Royal Indem. Co., on the other, lies in the difference between an
"employee" and an "agent." The basis of the holding in Morris and Norins Realty Co., with
reference to the Unemployment Insurance Act, and Royal Indem. Co., with reference to
the Workmen's Compensation Act, is that, insofar as these acts are concerned, the
common law definition of master and servant is the measure of the relationship between
the parties, and that the statutory definition of salesman in the Real Estate Act does not
make a real estate salesman an "employee" within the meaning of these acts as a matter
of law. [7] An "employee" is one who is subject to the absolute control and direction of his
employer in regard to any act, labor or work to be done in the course and scope of his
employment. (Crooks v. Glens Falls Indem. Co., 124 Cal. App. 2d 113, 121 [268 P.2d
203].) The term "employee" has been held to be synonymous with the word "servant."
(Press Pub. Co. v. Industrial Acc. Com., 190 Cal. 114, 122 [210 P. 820]; Western Indem.
Co. v. Pillsbury, 172 Cal. 807, 810 [159 P. 721].) Section 3000 of our Labor Code (formerly
Civ. Code, § 2009) defines a servant as follows: "A servant is one who is employed to
render personal service to his employer, other than in the pursuit of an independent
calling, and who in such service remains entirely under the control and direction of the
employer, who is called his master." An "agent" is defined by section 2295 of the Civil
Code as follows: "An agent is one who represents another, called the principal, in dealings
with third persons." While one may be both a servant and an agent (Ingle v. Bay Cities
Transit Co., 72 Cal. App. 2d 283, 286 [164 P.2d 508]), the terms are not wholly
synonymous. (People v. Treadwell, 69 Cal. 226, 236 [10 P. 502].) Although both relate to
voluntary action under employment and express the idea of service, the service
performed by a servant may be inferior in degree to work done by an agent for his
principal. [8] Accordingly, while both a servant and an agent are workers for another under
an express or implied employment, an agent works not only for, but in the place of,
his [215 Cal. App. 2d 206] principal. (People v. Treadwell, supra, p. 236.) It is apparent
from a reading of section 3000 of the Labor Code that the relationship of master and
servant contemplates that the servant be entirely under the control and direction of the
employer; it presupposes also the right to direct the method and mode of doing the
service. (See Fay v. German General Benevolent Soc., 163 Cal. 118, 121 [124 P. 844];
Chinnis v. Pomona Pump Co., 36 Cal. App. 2d 633, 637 [98 P.2d 560].) [9] The
distinguishing features of an agency, on the other hand, are its representative character
and its derivative authority. (Store of Happiness v. Carmona & Allen, Inc., 152 Cal. App.

7
2d 266, 269 [312 P.2d 1104].) [10] As stated in Wallace v. Sinclair, 114 Cal. App. 2d
220 [250 P.2d 154]: "Agency is the relation that results from the act of one person, called
the principal, who authorizes another, called the agent, to conduct one or more
transactions with one or more third persons and to exercise a degree of discretion in
effecting the purpose of the principal. The heart of agency is expressed in the ancient
maxim: 'Qui facit per alium facit per se.' " (P. 229; italics partly added.)

It should be noted, moreover, that Morris, Norins Realty Co. and Royal Indem. Co. were
decided prior to the addition by the Legislature in 1955 of subdivision (h) to section 10177,
providing an additional ground for the suspension or revocation of a real estate broker's
license, i.e., that such broker's license may be suspended or revoked if he fails "to
exercise reasonable supervision over the activities of his salesmen." The presence of this
provision in the Real Estate Law, read in conjunction with the other provisions applicable
to real estate salesmen, was deemed by the reviewing court in Grand to be indicative of
a legislative intent to create by statute, as between a real estate broker and the salesman
licensed under such broker, respectively, the relationship of principal and agent.

[11] We are satisfied, accordingly, that while it may be a question of fact whether in each
case a real estate salesman is an employee within the common law definition of master
and servant, the Legislature has, by virtue of statutory enactment, made such a salesman
an agent of the broker as a matter of law. [12] A consideration of the several statutory
provisions applicable to a real estate salesman impels the conclusion that such person
can act only for, on behalf of, and in place of the broker under whom he is licensed, and
that his acts are limited to those which he does and performs [215 Cal. App. 2d 207] as
an agent for such broker. (Galbavy v. Chevelin Realty Corp., 58 Cal. App. 2d Supp. 903,
906 [136 P.2d 134].) [13] We conclude, therefore, that a salesman, insofar as his
relationship with the broker who employs him is concerned, cannot be classed as an
independent contractor. Accordingly, any contract which purports to change that
relationship from that of agent to independent contractor is invalid as being contrary to
the provisions of the Real Estate Law. (See Civ. Code, §§ 1608, 1667.) [6b] It was
reversible error for the court, therefore, to instruct the jury that the contract of employment
between Shugg and the respondent was "prima facie" evidence of their relationship in
view of the terms of the contract providing that the relationship was that of independent
contractor. In the absence of such error it is reasonably probable that a result more
favorable to the appellants might have been reached. (See People v. Watson, 46 Cal. 2d
818, 835-836 [299 P.2d 243].)

While the error in this latter respect was induced by both the respondent and the
appellants, it was not "invited error" on the part of appellants. The case was tried on the
theory that the question whether Shugg was an independent contractor was one of fact
for the jury and instructions were submitted by both sides not only on the effect of the
subject employment contract, but on the meaning and definition of the relationship of
independent contractor. [14] It is well settled law that where a litigant invites error by
offering instructions on a certain issue, he is in no legal position to complain that it was
error to give instructions offered by the adversary, or given by the court on the same
issue. (Fuentes v. Panella, 120 Cal. App. 2d 175, 182 [260 P.2d 853]; Wells v. Lloyd, 21

8
Cal. 2d 452 [132 P.2d 471].) [15] In the instant case the doctrine of invited error would
preclude the appellants from complaining that the court instructed on the issue of whether
or not Shugg was an independent contractor and of the effect of the employment contract
with respect to the relationship between the respondent and Shugg. The doctrine does
not, however, estop the appellants from urging on appeal that an instruction given on that
issue was in fact erroneous. As we have pointed out above, even if it had been proper for
the court to instruct on the effect of the employment contract with respect to the
relationship in question, the instruction given on the subject was prejudicially erroneous.
The doctrine of invited error precludes a party from an objection on appeal to an
instruction substantially the same [215 Cal. App. 2d 208] as the one requested by him,
or invited by an instruction requested by him, or to the part of an instruction containing
the same vice as the one submitted by him. (Jentick v. Pacific Gas & Elec. Co., 18 Cal.
2d 117, 122 [114 P.2d 343]; Smith v. Kile, 147 Cal. App. 2d 314, 317 [304 P.2d 1034];
Jansen v. Southern Pac. Co., 112 Cal. App. 2d 833, 845 [247 P.2d 581]; Yolo Water &
Power Co. v. Hudson, 182 Cal. 48, 51 [186 P. 772]; George v. City of Los Angeles, 51
Cal. App. 2d 311, 319-320 [124 P.2d 872].) In the present case the instruction submitted
by the appellants on the effect of the employment was substantially different from that
submitted by the respondent; it did not contain the same vice. [16] The doctrine of invited
error does not apply where the instruction objected to on appeal contains elements or
additions substantially different from that contained in the instruction submitted by
appellant, particularly where such instruction is prejudicial to him and is not the law.
(Baker v. Borello, 131 Cal. 615, 616-617 [63 P. 914]; Dowd v. Atlas Taxicab etc. Co., 69
Cal. App. 9, 14 [230 P. 958].)

Did the Court Commit Error in Refusing Instructions Defining the Right of Control and the
Factors to be Considered?

Substantial evidence regarding the control of the respondent over Shugg was submitted
by both parties on the issue of whether Shugg was an agent or independent contractor,
and instructions on the subject of control were given to the jury. The appellants contend
that the jury was not informed as to the difference between the right of control and the
actual exercise of control. In view of our conclusion that a real estate salesman is an
agent of the broker, under whose license he operates as a matter of law, the question of
control need not be discussed as instructions on that issue were not necessary in the
present case. The important question is whether, at the time of the accident in question,
Shugg, as such agent, was acting within the course and scope of his employment.

Were the Instructions and Rulings as to the Scope of Employment Erroneous?

The facts leading up to the accident appear to be undisputed. Shugg testified: that on the
morning of the accident he was at the office of Davis Realty; that he left the office for the
purpose of going to 38th Avenue and Clement Street to try to obtain a listing on a house
at that corner on behalf of Davis Realty; that his sole intention upon leaving the office was
to look at that property; that Davis Realty is located at [215 Cal. App. 2d 209] 14th
Avenue and Geary Boulevard; that he drove north one block to Clement Street and then
drove west on Clement; that as he started out on Clement Street he noticed it was around

9
noon, so he decided to stop by at his home for lunch and then continue out to look at the
property after lunch; that he was driving west on Clement Street, somewhere between
14th and 26th Avenues when he made this decision; that he lived on 32nd Avenue, two
blocks north of Clement Street; fn. 15 that the entire trip from Davis Realty to 38th Avenue
and Clement Street would have involved a distance of about 21 blocks; that the
respondent did not instruct its salesmen as to when or where they should eat lunch; that
it was the usual practice to stop at a convenient location for lunch and then continue on
with the business of Davis Realty; that he ate lunch at home if he happened to be in the
area; that after he reached the decision to eat lunch at home he continued along Clement
Street. fn. 16

[17] It is elementary that the liability of the principal or employer is predicated upon the
fact of employment. [18] Accordingly, the principal or employer is not liable for the acts of
his agent or employee while the latter is pursuing his own ends, even though the injury
complained of could not have been committed without the facilities afforded to the agent
or employee by his relation to his principal or employer. (Kish v. California State
Automobile Assn., 190 Cal. 246, 248 [212 P. 27].) [19] Therefore, whether or not the
principal or employer is responsible for the act of the agent or employee at the time of the
injury depends upon whether the agent or employee was engaged at that time in the
transaction of the business of his principal or employer, or whether he was engaged in an
act which was done for his own personal convenience or accommodation and related to
an end or purpose exclusively and individually his own. (Kish v. California State
Automobile Assn., supra, pp. 248-249.) [20] Accordingly, it is the general rule that an
employee on his way to lunch, even though he is driving an automobile which is the
property of the master, is not engaged in furthering any end of the employer, and that
therefore under such circumstances, the servant is not acting within [215 Cal. App. 2d
210] the scope of his employment. (Carnes v. Pacific Gas & Elec. Co., 21 Cal. App. 2d
568, 572 [69 P.2d 998, 70 P.2d 717]; Peccolo v. City of Los Angeles, 8 Cal. 2d 532, 535-
536 [66 P.2d 651]; Adams v. Tuxedo Land Co., 92 Cal. App. 266, 269-270 [267 P. 926];
Helm v. Bagley, 113 Cal. App. 602, 605 [298 P. 826]; Martinelli v. Stabnau, 11 Cal. App.
2d 38, 40 [58 P.2d 956].) [21] The so-called "lunch hour rule," enunciated by the foregoing
cases, is, however, subject to an exception termed the "dual or combined purpose rule."
The latter rule was stated thusly in Ryan v. Farrell, 208 Cal. 200 [280 P. 945]: "[W]here
the servant is combining his own business with that of his master, or attending to both at
substantially the same time, no nice inquiry will be made as to which business the servant
was actually engaged in when a third person was injured; but the master will be held
responsible, unless it clearly appears that the servant could not have been directly or
indirectly serving his master." (P. 204.) This rule was followed and applied in Cain v.
Marquez, 31 Cal. App. 2d 430, 441 [88 P.2d 200]; Loper v. Morrison, 23 Cal. 2d 600, 606
[145 P.2d 1]; and Fuller v. Chambers, 169 Cal. App. 2d 602, 608 [337 P.2d 848].

In Ryan, an automobile salesman made a trip from San Diego to Pacific Beach to
interview a prospective purchaser and was making the return trip when he injured the
plaintiff. It was there held that an employee who has gone upon an errand on behalf of
his master does not cease to be acting in the course of his employment at the moment
he starts upon the return trip after having performed the errand. The Cain case held that

10
there were facts sufficient to warrant the case going to the jury on the issue as to whether
the employee was acting within the scope of his employment where the employee went
home in his own car to get tools to be used in his employer's work, then went to dinner,
and on his way back to work became involved in an accident. Loper, on its facts, is similar
to the case at bench. There a milk route employee, Morrison, left his employer's place of
business in his own (Morrison's) car for the purpose of collecting a delinquent account
owed his employer by a Mrs. Hanson, a customer on his route. Morrison was
accompanied by a fellow employee, Dolan, whom he had offered a ride home. Upon
finding that Mrs. Hanson was not at home Morrison decided to call again later. While
waiting for Mrs. Hanson to return, Morrison went with Dolan to a tavern near Dolan's home
for sandwiches and beer, and then took Dolan home. While returning from [215 Cal. App.
2d 211] Dolan's home on his way to the Hanson home Morrison was involved in an
accident. Dolan lived about 2 miles outside the area covered by the milk route and the
accident occurred before Morrison reached the boundaries of his route. The court there
held that it could not determine as a matter of law that the employee was outside the
scope of his employment, the test being whether there had been a deviation so material
or substantial as to constitute a complete departure, and that this determination was a
question of fact. The Supreme Court went on to state that "[t]he employer's liability was
not necessarily terminated by reason of the fact that Morrison combined a private purpose
of his own with the business of his employer." (P. 606; citing the above rule announced
in Ryan.) In Fuller an employee was driving a company car from San Francisco to Fresno
on business. Instead of going by the most direct route, i.e., via Gilroy and Pacheco Pass,
he detoured by way of Camp Roberts in Monterey County to pick up friends. The accident
occurred after leaving Camp Roberts about 16 miles out of Lemoore (Kings County) along
Route 41 toward Fresno. Applying the legal principle expressed in Ryan, the court held
that there was sufficient evidence to support a finding that the employee was acting within
the course and scope of his employment.

The "dual or combined purpose rule" was recognized also in Richards v. Metropolitan Life
Ins. Co., 19 Cal. 2d 236 [120 P.2d 650]. There an insurance agent in the employ of
Metropolitan Life Insurance Company used his own car in soliciting insurance, in
delivering policies, in collecting premiums and in trips to the company's office. He paid all
expenses of maintaining and operating said car. He was required by the company to
attend daily meetings at its office in the morning. On the morning of the accident the
employee was on his way from his home to the office of the company to attend a meeting
of the agents and to deliver premiums collected on the day previous. Because his duties
encompassed both office and field work in a territory allocated to him by the company,
and because he had to attend daily meetings at the company's office and was required
to deliver premiums at such office either before or after doing such field work, the
Supreme Court held that there was substantial evidence before the trial court on the issue
as to whether the agent was acting within the course of his employment at the time of the
accident to warrant the denial of a motion for nonsuit.

[22] In the instant case it cannot be said that at the time [215 Cal. App. 2d 212] of the
accident Shugg was engaged in an act which was done for his own personal convenience
or accommodation and related to an end or purpose exclusively and individually his own.

11
The testimony shows that, initially, his sole intent was to attend to the business of his
principal at 38th Avenue and Clement Street. En route, he decided to combine his
business with that of Davis Realty. This is the extent of his deviation. Moreover, we do
not even have a departure from the original route of travel as was the case in Cain, Loper
and Fuller. The court below would, therefore, have been justified in giving an instruction
based upon the legal principle declared in Ryan. Such an instruction was proposed by
the appellants, fn. 17 but was not given. fn. 18 [23] Instead, after giving instructions
defining generally the terms "principal" and "agent," the scope of an agent's authority, the
meaning of "course and scope of employment" (including appellants' proposed instruction
set out in footnote 18), and an instruction based upon the "return from an errand" principle
(also declared in Ryan), the court below gave the following instruction: "An employee
driving his own car to a meal may or may not be acting in the course and scope of his
employment even though he is traveling with the intention of resuming his duties after
eating. If the primary purpose of the trip is for the meal, then he is not in the course and
scope of his employment. If the primary purpose is for the business of his employer, then
he is within the course and scope of his employment." This instruction is clearly
erroneous, and materially [215 Cal. App. 2d 213] at variance with the principle
announced in Ryan. The rule in Ryan is not reduced to a determination of which business
(i.e., his own or that of the master) is primary or dominant, or even as to which business
the servant was actually engaged in at the time of the accident, but to whether, at such
time, the servant is combining his own business with that of his master or attending to
both at substantially the same time. [24] The essential inquiry, in each instance, is whether
there has been a deviation so material or substantial as to constitute a complete departure
from the agent's strict course of duty, and this determination is usually a question of fact.
(Loper v. Morrison, supra, 23 Cal. 2d 600, 606-607; Fuller v. Chambers, supra, 169 Cal.
App. 2d 602, 608-609; Westberg v. Willde, 14 Cal. 2d 360, 372-373 [94 P.2d 590].) [25]
The applicable rule has been stated thusly: "One does not cease to be acting within the
course of the master's employment because his most direct and immediate pursuit of the
master's business is subject to necessary, usual or incidental personal acts, nor even by
slight and immaterial delays or deflections from the most direct route for a personal or
private purpose, the pursuit of the master's business continuing to be the controlling
purpose. Such acts, not amounting to a turning aside completely from the master's
business so as to be inconsistent with its pursuit, are often only what might be reasonably
expected, to which, therefore, the master's assent may be fairly assumed; or they are in
many instances the mingling with the pursuit of the master's business some purpose of
the servant's own." (Shearman & Redfield on Negligence (6th ed) § 147a; cited with
approval in Kruse v. White Brothers, 81 Cal. App. 86, 92-93 [253 P. 178]; Westberg v.
Willde, supra, pp. 372-373; Fuller v. Chambers, supra, p. 608.)

The respondent asserts that even if the above instruction is erroneous, it is the result of
invited error on the part of the appellants. Although the said instruction bears the notation
that it was requested by the respondent, the respondent maintains that this instruction
was not submitted by it, but was one prepared by the court, pursuant to the stipulation
and agreement of the parties. The respondent has filed a motion herein seeking to
augment the record to show that the said instruction was given by stipulation and
agreement of the parties. The motion is supported by an affidavit of counsel for the

12
respondent to the effect that the subject instruction was a modification of an instruction
submitted by it fn. 19 after a conference [215 Cal. App. 2d 214] in the chambers of the
trial judge, during which both sides agreed and stipulated that the instruction in the form
in which it was ultimately given would correctly state the law and be acceptable to both
sides. The said affidavit states further that the said modified instruction was prepared by
the clerk of the court at the direction of the judge. This latter assertion is supported by an
affidavit executed by the said clerk and by the court reporter for the said trial judge.
Counsel for appellants, in turn, has filed a counteraffidavit to the effect that it is true that
the court did modify the respondent's said proposed instruction, after appellants objected
to it, and that the trial court did direct either the clerk or the court reporter to type the
proposed instruction as modified. Appellants' counsel denies, however, that he agreed or
stipulated to the instruction as modified, and denies that he stipulated or agreed that it
was a correct statement of the law. [26] We thus have a sharp conflict in the affidavits. In
such a case we should resolve the conflicts against the party who challenges the action
taken by the court below. Since all intendments are in favor of such action, we must give
considerable weight to the designation by the court as appears in the reporter's transcript
to the effect that the instruction in question was given at the request of the respondent.
(See Cameron v. Cameron, 110 Cal. App. 2d 258, 261 [242 P.2d 408]; DeWit v.
Glazier, 149 Cal. App. 2d 75, 81-82 [307 P.2d 1031].) The proposed instruction was an
erroneous statement of the law. The instruction given, even if considered as a
modification of the one proposed, did not cure the error. It appears, therefore, that the
error was invited by the respondent, rather than by the appellants. Moreover, it would
avail nothing to augment the record to reflect the notation requested by the respondent
because this cause will have to be retried, in any event, in view of the other prejudicial
error in the record.

[27] The appellants also assign as error the sustaining of an objection to the following
question directed to Shugg: "And would you say it was only an incidental purpose when
you decided to change your route to stop by your house and get something to eat?" The
objection was sustained on the ground that it was for the jury to determine Shugg's
primary purpose. The question was clearly objectionable because it called for the witness'
conclusion. The extent and substantiality [215 Cal. App. 2d 215] of Shugg's deviation, if
any, was a question of fact for the jury.

The respondent's motion to augment the record is denied. The judgment is reversed.

Bray, P. J., and Sullivan, J., concurred.

FN 1. Hereinafter referred to as appellants.

FN 2. Hereinafter referred to as respondent.

FN 3. In discussing such instructions and rulings we shall hereinafter refer to such facts
in the record as shall be pertinent thereto.

13
FN 4. Other instructions were given by the court on the subject of burden of proof, as
follows:

(a) "In Civil actions, and this is a Civil action, the party who asserts the affirmative of an
issue must carry the burden of proving it. This means that if no evidence were given on
either side of such issue, your findings as to it would have to be against that party. In
determining whether the burden of proof has been sustained you will consider all of the
evidence bearing upon the issue, regardless of which party introduced it."

(b) "In civil cases a preponderance of evidence is all that is required, and the burden rests
upon one who asserts the affirmative of an issue to prove his allegations by a
preponderance of evidence."

(c) "By a preponderance of evidence is meant such evidence as, when weighed with that
opposed to it, has more convincing force, and from which it results that the greater
probability is in favor of the party upon whom the burden of proof rests."

(d) "Preponderance of evidence means not the greater number of witnesses, but the
greater weight, probability, quality and convincing effect of the evidence, and proof offered
by the party holding the affirmative as compared with the opposing evidence."

(e) "Whenever, in these instructions, I state that the burden of proof rests upon a certain
party to prove a certain allegation made by him, the meaning of such an instruction is this:
That unless the truth of that allegation is proved by a preponderance of the evidence, you
shall find that allegation to be not true."

FN 5. The questioned instruction followed the other instructions on burden of proof which
we have set out in footnote 4.

FN 6. Greenleaf v. Pacific Tel. & Tel. Co., 43 Cal. App. 691 [185 P. 872]; Colbert v.
Borland, 147 Cal. App. 2d 704 [306 P.2d 53]; Meschini v. Guy F. Atkinson Co., 160 Cal.
App. 2d 609 [325 P.2d 213]; Banes v. Dunger, 181 Cal. App. 2d 276 [5 Cal. Rptr. 278];
Perrett v. Southern Pac. Co, 73 Cal. App. 2d 30 [165 P.2d 751].

FN 7. The said instruction read as follows:

" 'When the evidence is contradictory, the decision must be made according to the
preponderance of evidence, by which is meant such evidence as, when weighed with that
opposed to it, has more convincing force, and from which it results that the greater
probability of truth lies therein. Should the conflicting evidence be evenly balanced in your
minds, so that you are unable to say that the evidence on either side of the issue
preponderates, then your finding must be against the party carrying the burden of proof,
namely, the one who asserts the affirmative of the issue.' " (Pp. 165-166.)

FN 8. That is, to establish the defense of contributory negligence.

14
FN 9. This terminology appears in the instructions given by the court in the present case.
See footnote 4, instructions (c) and (d).

FN 10. Mrs. McAnaw was an employee-secretary of respondent corporation.

FN 11. The proposed instruction was as follows:

"The designation of a party in a contract as an independent contractor is not conclusive.
Although a contract is drawn with the purpose of creating the appearance of an
independent contractor relationship, nevertheless the conduct of the parties to the
contract may show that the true relationship between the parties was that of principal and
agent. In considering the contract between Mr. Shugg and defendant, Davis Realty
Company, you must consider not only the terms of the contract, but also the
circumstances under which it was made and the conduct of the parties under the contract.
If the true relationship between the parties was that of principal and agent, then Davis
Realty Company could not avoid responsibility for the conduct of Mr. Shugg merely by
providing in the contract that he was not an employee of the company."

FN 12. It appears to us, however, that the word "should" is preferable to the word "must"
because the latter may be interpreted as signifying compulsion rather than the more
appropriate idea of bounden duty.

FN 13. All section references herein relate to the Business and Professions Code unless
otherwise noted.

FN 14. At the time pertinent to the instant case section 10132 read as follows:

"A real estate salesman within the meaning of this part is a natural person who, for a
compensation or in expectation of a compensation, is employed by a licensed real estate
broker to sell, or offer for sale, or to list, or to buy, or to offer to buy, or to negotiate the
purchase or sale or exchange of real estate, or to solicit the prospective purchasers of
real estate, or to solicit borrowers or lenders for or negotiate a loan on real estate, or to
lease, or to negotiate the sale, purchase or exchange of leases, or offer to lease, rent or
place for rent, any real estate, or improvements thereon." (This section read substantially
the same when discussed by Grand v. Griesinger, 160 Cal. App. 2d 397, 405 [325 P.2d
475]. It should be noted that in 1961 this section was amended to provide that a salesman
can do any of the acts which a real estate broker may do.)

FN 15. The contemplated detour for lunch thus involved a distance of two blocks from a
direct route to his destination at 38th Avenue and Clement Street.

FN 16. The accident took place at 26th Avenue and Clement Street and prior to reaching
his home or his ultimate destination.

FN 17. "The liability of a principal for the conduct of its agent is not necessarily terminated
by the fact that the agent is combining a private purpose of his own with the business of

15
his principal. Where the agent is combining his own business with that of his principal, or
is attending to both at substantially the same time, the principal is held responsible for the
agent's conduct unless it clearly appears that the agent could not have been serving his
principal directly or indirectly."

FN 18. The proposed instruction bears the judge's notation "Given as Modified," however,
it was not given by the court. By this notation, the court apparently meant to indicate that
the substance of this instruction was included in other instructions given. The following
instruction submitted by the appellants was given: "When an agent is in truth acting on
his principal's behalf and within the scope of his authority, if while so engaged, he also
and incidentally attends to some matter strictly personal to himself, his doing so does not
break the agency relation so as to release the principal from responsibility for the agent's
conduct. On the other hand, when an agent departs from the business or service that has
been assigned to him expressly or impliedly by his principal, and pursues some activity
or object not for his principal and not reasonably embraced within his employment, but
for the agent's own pleasure or purpose, the principal is not responsible for anything done
or not done, in such activity."

FN 19. The proposed instruction No. 10 read as follows:

"An employee driving his own car to a meal is not acting in the course and scope of his
employment even though he is traveling with the intention of resuming his duties after
eating."

16
IV. Independent Contractor Agreement
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is,entel'ed ~t ~ 1heA,. ~d µ~
id~dfi~«bow.!;uttjettto·tbo~ Ji;dco~ti~~f~ _~en(·Li _~ ~A:1~ :·
4, -~ ~llilf c:®li8ctm-c11~ .of~)J.111tec.~wtth
ta~ tJut~ .atid Qllt.ot
-A,mi~ta&ho enpgem:ie~J~~1Qpm,vi4ef!m
.. ..l'tal·estllte;
. ·~'*o{arw ata1u·18i!f1t-····
(~~lJ) .'of~ ~~t c~~,~ -~ -~
to~1Jt4rtS 11nd
subJeci::to
iht condl~oqs
-~
· ·· ·- · · ·rovld~
J\~~ll .. .,'
Z ~11"'1.TertmoftigaJtttl~Jrt
A, A~ ~11$ _ dult· :aie« :~O l- .~~g .In~ ~ll :,~ ,eut ~ - tm
lnd~dent ~Jl~r ~ ~aus-.n empltiy~ -µ~ i~ :~C.no~~b,Uity u,_withhQJd
.· 1'$~,·•.cc,~~od
9r -p,ty.any·:ID®me or o\h~ ·\iXd · o.a ~ . ~ pi9wfe aily ~
tethem~ .ot otb~~r.t~ ~tp ·~~ .~t ~,-~~eo~trl'Z'f)eed~
buym;

h11.01
 • I ,

(2): ib ad!i~1A andoompffw(~.tJtePdvactPt)liey tiiit
·~~- Wnliami
p\\b~~m~ _ ~1o11m~ ·www~~~~.., ..an
.f\ltlln,, _d'.W,itll
,*,,:,1erm~
.or~ -~
KellerWilli• p~6e!I &amt1;11tt ~~ eud
torthe~~ Wlliia1ii5
to:~n:1¢
(3) to.-~•~~ Ctlmpltw1 ·~ ~u~ "\Villi~'
·pt~ollnes ~~ .
11rul
·"h·
\,lfm ~· r)"'.(i) to' .the; ;....J~~o n.
, ' ' ~'1l""'"~ ' . ' ' p and
· 0~ . ' -~· . ot®i:iwl:l " ~
' ' . tlllnlts ~ 'tl,at
fV• .. ,• ' ' ' . .
~lay tbc·KolJ~ ,Willlmffi14emlilb ,orlogo,(b) ta the ~Jay and- of tho~t)' '
Wi,lUiws .oamea tndcmub andlogoon th"~ rdld(lll) 1(fthe uso
ofm~ arid
.•L...,dm
0~ - · ,ed tluU .-...-, Intetiiet
. --.~ ....;;..;.;.'1.
. . ~ _ett..t~e1to
H+lt , .-s.ucb-wd>;;i.;...
!!'WI',
· ·

c. r;~ theenti:te ttm~thatAa~t~ w1tii tii~~t ~. ~~·
to list allttai estntelutiriWi
thatA~ttt·obtidtuand
.to hlnd11l-
altiooIestste ~UoMlii whleb.
Agmt~sagesin tbe•e t)fK..8UJ:!ll
WII.l'..lAMS
JlBAi,TY.
),). Agent~ -n~tto d~an~g by 11Ct¼C112t '*1d~ Btiitement « autJelauf®thai
ml$bt'~e thegoodwlU ~ -wllh
~et W,ilUema' n!Ufte-,
,blfeznia:b orrcputetlonor
C$We 'thei,ub11i:
io lose eonfldottce
In lhe.KelletWtllJIIIN
o~cm, .
a... Autmlwill havtJ·no.authority,
to incur ob.Iig.¢o.D$
_.onLl~'a t,ehalf -~
~ ·~mr~Y
-(1).notr:a cont11~ ~ che.~of~
a~!ia~ l¢ase.o~p~t¢ (2)MHo
.DP,eft
:
.of~1~ lll11
.<3>:~ .*°
endof.#·lbr C:t>tlecti4
_41)r_d~t .ln-ABe11~1
p~ any~eek. mOJtay
aC(!()Wll .Ql'dar
orot.fulr
.
neuotiabli>
~mt•e payat,le
:«;Lloenw.
3,;: ,ca~, ••iiaffiiii&'Q(ll.'ql1ir,se
-AIJot:,ilfon
.
;· ·
A., f4tsolonga.s·AQc:ut•s
~IU(o'Q W-i~·d¢.~~ ~ ~, JIil~
~ -fi'oi;tl,Aserit ~ ¥itJ~
1a:~ .• ·~v,~~wilt~ ~.for fled lllsbutaed
through
th#
Market C~tetin.111::C(J•~withKellerwntumr~Polldil$
ind-Gulclel~C:.. .
JJ, :14~ wtiisbati:, ~ -~mmi'MTons-·
eamoct
·.on tta1.estlfe ~olU' fu,Which
AgentJtpJt$®lsa-MatbtCen1.et ~entast,uy~ :o,•~ :in ~ -wt~:
thee«)~ .
and_~~ _potltiea~t µ~~ o,~·-~ty to It~ ~~ ;~laies c,fthl
llll~tting
~ -~ter. µ~,,.~t eo~oll spll~g and.cap~lrlgwU~es ate defiotibed in
.1 ~oll\iaA~e~t. Agept-·~l~aes thatU~~ ~ soledJ~oti to
Sc\1et;(ule
•.Aaei:1t'1~m~.,~.wlllha payableonJy&omolbJienal ~ (2).~~ ~~ elfciri;pndo~n lh!blllty
~ .l':'~P ~,: ~ -~ -~ (3) ~~ .(-4)b~ cards,.yaM.
~' -~~ an~ o~et.~- ~'- (S) ~~ eosts;_~lub,tfues.tuid oiher
~=
·
~ litrildMt
,,._._
WC
f..a,
.1t.w-,C(ll1\
tll : ~ : ~nQ,mof f\Wh,~
entMd Mafott.nanr~
· _..__L ,,h• .for
attd (1) ~
w=~ .·~ •ti)··thaKd.l-
.other'bimefltsof'.ussoQ~O;l,~ tJidJ~ ~
MerriCt1
.!~~$ad
. _..,'tUti,I
as an,~•tmt.(6)· Jsi~ .~te .
J'f·~llll~tlllt;l~
·(co~y~
by Xt:Ui':r .WUUahu
.~
~r I U~ ~n.
·,.._.:, _J.,.._, ;:;,;;,. and'~ "-•:-'-U-~ •'· . mid~?
.
.~riclpado~( ~11).(t()'OU ,
. . ~ -

pity ·uy ·ortl:ieieexplmSN tor;your :,e'itld
d(ldj~ tiun;;ili• -~proprlaie.dderlp&i,;from
Ln .tn3-,C.J
E, Agent-~ .thatif Ageuido~ 11~ ptty ~ hrtietptitio11
.Fae$bffull wheu
du~ QCM.1i-et
may~ -ci anyunpiiditmountfromAgmt'seomm.wfoll:!.
p. ~t .Wlll~"1:Ugibl~ ~ pattlei~m tha.'fWler Profit-~haru:lgprogrm
W'dlililn.t
u, tho..•e extent~ 911; .the·iwneterm$ 11.11otherKellerwm.l~ :~ . ~~ Atent
un~ds ~ .a KellerWilUDmS m~ ¢anwtpiult ·~ ~flbtl,l~ Wo~.lt ·~tit~ .hi
.'and.lhal
die ProfitSbiomgprogra.'it _ptutJc.lffid!nt
SIil~.·~ -~\1,$1mniun with1lieKeller
WilliDmS~?fW ptriodt»r~ 'tlith'~f,its~t
a_mltlirnurrt Vffl~
·4, LlWt~Tiailftllittk.ti~o .
For- ·rotia
u A~~t ~ .ei~on
-.With
.tho-~~ ~~tln~ i ~t .has p~on ~
me theKF.UJ:ll
WILLIAMS
REAL
TY ~Jljd h¥i'othei.yntd sie,u,);wimea
lt>d•f...m ~ -
letUibeail·ud: othetb~fd~ suh,!~.th.~~ ~~ ~
WUJl&iris' -ot"tf\o,iltWOzk
tn1dtoxt. tt~ ·wiq -~ tqr·AgentfJ> :A H~w.
. hav.e mtth!)WwW.ltw.eQffl.
~~ \rut.
with~ ~ - ~"1qn ~ Kallar . WIQ~ -~ ~P~ \Yith .any paU~ i Utt
pro~!I ~i ~ti Willltl!U' riAni~
impo~ Agenltnl)Yno.t ~ .tbit~It~ .WUllant.S ti,rloat,
cu,-orht:~;4µ11~ ~e, .:~ .or~ Atenru~
wttbw!Hcb
. web51~ -«.
~ ·any mtcrii~tii,d\r~lli~t
P~ JOSY.
~ ·A,~f pl~ :When
Omt.ertennbml~ hisoril)itt petl'4iUton.
,Aa~t's .~~
:KBLLER
to,:iue 1he:
-with:
wn.t'iAM$ REALTY
~
·namefUld
'lli'
logoWilt.l.l?ll'O~di~
.O?*UY: :·~y ·ull'b~ ·r. that
.~ -aitd;Ascntil2\tstfaunedllli~y
~a~ : AJent:with1he. ~~if
.XellorW'dllami; and~mt ~ply~ -~~ wwt••
gutddin.. :andptO(;ed,,u·crre~g Wfflite.~b~~c,;,t o~~~\'1M<,lf~,Wlt,h
l(jl,ltt .WlUlatrta'
~or,• ~ :ut£4
~t.~ Vlliilllion.afthi, Km,.t:.e1t:
·\VIU,tAMSRRAl.Tf .~ Ol''
~ ~tlon
~tlalj. In• tiom.tu:itaiu.~ .AP1i.twilrimmedlafll'l)I c;f1hednnwn-~ ·til
WiUwna
ICiiller. withoi.it
COilip~,a.tinn. .
s. E&O Uabillty ltmttau~ Ind~.1%udft~tfc111
A. Agent~ io obi!lnand PA)'fora.to lnsuratl~·cov~ errorsandomlmon,
emfees• ~ ~A1i!II ffl.Otjate~f
inQJ!limlto theproresslottlll l)l\Wldtis.AlffllwlU
urrangofor Lfoei,seeIIQd·KellerWUllania n11.1ne~r
to 1,,.,. hmuredsltt A-geu1
u n.dditl~n:n! 1 , &tO
. I

f . ...

pofl~and.lb~
lmilnJ.ttto Jl?tivtde
tb immtr1o .l'.J~ sudKtllt1 Wtlllm,11ot
lm fu
30&ry,l~·
w,tlcin,fibe-p:oU~·s
CllJlclllletlon
~Jittn-itntW.;].

B. ri>tpwp~ . ers~omtc.~ ·.s~p~ ·in~ :.uUilbUity;
·"UabUitt* Qlatw.
dmnages,lo~ oos1s·m~ .-ihit &Pfflf
.~ ~,mt:u?$• ·s:~t ororin(:O,mecdoii
with-aP#;ttfctitat -or rituadan.
iilotdent
. c.· If and'U) dle txtetit
·As~faiijicr~ Llc~ imclK~Ue .r Wi~ apt1ut·
-~:ouinlY co~ bfUO ~ A.gent.~
risk# to h1denuu~aru1holdL\~ -lll:ld
KelJerWilU~·hanfil~ fr6m··~ -~ d,lattJi;em~or1'ellet:Williams
alllJafx1ii)i ~ -
t>r~ on aocotin.tof.A!J#nt 1s bitentlOIJill
di~ of btcacihof any law,reguhn!onor
stmda:rdof C, Fot -&b notcuatomiuity by E&Q.~S\lfatl'~
·oo.vered _arldtot .t.t-.bUity
11:blnJ
li'Qro·A~ent•t nea).le.eut
(Uhln~ona» ·~prd or~ -oftQl)II.aw~ •ation or.atall.da(dof
~on~ ~~ qplies~ -1-e=t•a actio~ or KCUvhias'*'a llllCUSldJUI·esucesales~
Al¢11~~ ~ -lndm~ Md {M)ld Lf~ . aa~K!Jlle:r
Willlaitt$}Wmlw fro~ iwl.agidnat
~ equali
that ·,. ' · ta e of ru,y'LtabUit).' .thepmeatiifi'ofco~oM paya~to A ent-on
... ~!-~ ~oi~_~t -~~-o~-~~:.~ -~\'.~~e-~~ -~!!!lf .~ ~ .... · 8 ·· ··
6, ~dtv~ Cts\tbUtallti.d
Collil!len(taJ
nifi,r-.'1iOm,,
'
A. ·tU:el,u~ ..•plze, Ind.asr.ccr .thatA~
:tiuirJiit.~ -.~ .an'd)rofitt,i
po~es ..~ -:thorelatfonsliJp•1 -~ori · drnf~M~
at J)'ei:$0iililJi -~ -~ -,~ :!s
IQ®l'atca-Wlth
~
·the~. ~ (~11~.v~J)'
.of':Atjciit.that.,reet&tt4#to ~oflu
ItwiJl-Jiti~:d\llbit·tbe~, ~fN1~·11
.;~~~
~...Agb.tt~s~ ,c::6~~~yalliabt~.~-
.~d~~ hlf'~t¢atl,~ :U~
-wlth1h!l
pro~•
:Mmt ·Cemcror .at sny.Iatert#ri;'
~t .io o~ ~ -:.~Jo,it,A~t·s n-.ti~~~~~•~,et to dop Agmt frtlmtaldng~ -(If
hit As~nt~ ~ WhCJJ.lib :with
.orher ~hitl~mhlp theMarket~ etuu:
l3~ ~t. ~- ·1hit· Li~ and ~r -MadcctCenter ·aaentahavellpOSlt
m1~.ia1 ~ti~~~ lll~ :t.o~,1~p.@ ~t
l$am;~t fi,r Agdn•ilPa.tit,whloh
-~ wstantirt ~ ·•4
.u t1(lt.co~ by~ ·S~bri- ti,B;tho~
.aem
.
·~d pn:,fl1•
of~~ -~ ~!"-boughtorso1dttal f.SUU! ~_ the.~t Cetlter and6f"Cliltl y,hg-
iw &S$0ci~ with the .Matl(et·eet,tt:t comtitutc wl~le .busbii.m,i,.uets of tJ~ or other
~ ~ ~ ·MUUcd to p~cµt a.,~r:didenu,.t :~6u. ,Agentp~ 1hrit
be.or tlho
wi1I~t.,:dutul$~ tfm·e ·of Ageh1's.MJOdatton wi\h~ ~t ~nw-at · at -Y lltt,t.·~
dlYiitae.san. ~o or~~1&10 -io any~" exct111l .U~ othDrngems ~cl~ _with
the · Mat'.ltot~ o~ wiili
ntpnlziariontliaJd.l!!i1tides
L~·,
ar Jm)fites
pe~ito~ b_tltb!:
oraiiy:p~tm wh<>
m~ at tlse Keller WUU.UU
ho boughtOf ~ld -ieal estatethl®gh
;Matbt :Cetltor
tlu.1 orof Mf Ii~ thal..U~ bu _~ltd .to;·ihe Markee~tet. Fujtlier~
Auiittprom!~~:uotiocitn.t¥,l~Y ltiob~uslp-~ifr-er qeut tlr to use·any·suebpro61~exupt in
~~nwith~,~~f~~M~~.
1NQRJ!l4tlMrcbtt(RAQMAMBMHNl ht1•4
 -,

!

..
.,

1.- tu;m w ·"re~nd _on
_ A. Aae:nt'$ ~Qn ~th Ui.t¥at~ Ceµ~~ -1:9~~ f'o,f-1\Ilinde1mlw.
period,.
Eiib~Ag~ _«:)t'U~ _lilay~te ~gent·;usoetstionWiUithe Marketee.i~ .t auy.thnej.
wlthrprwithout·cit Useor prior:ootice,
n. t~11 of~toi'a ~ittl _oil.'With thaMadcet ~ Wffl
1)1)~~ :;,ny
-tfshts.rlt;obll&adam
of tli~continuing or eitherA£tntot·LI~ u:nder
·thl!i_Agreem'tnf.
w~
pai11mtlti:rty-tha in Secll~(i,
c. ~ Agei:!lts~ati'oa ·wi~-ibe -~
. -~ ~fuj f~ my~ -
~ will wel~ -,ati~allowAgentto cab·atl sioli>"lirntJBS
and buy« agencyCOtnraetB~
Agent~'It$ ~IW-,,lt fbrobtlµxu.,.1(AlCUt .~r ag~cy ttmhcts 'Wlthoaiet
.tl\aretl·ll$tings
eaeu~.bt ~ M~k#Ccn~,flilt'~ or~ ~~~will r@Wb withUte·~ -~w.
btltAsentwiU~lv~bist>rherMt ~:«,ftM reJW!d com.om.don wheiuwa·oruu, pi'opelt1
closes.
.p. Mu -~r$ a.w,dad.on ~~~s, u~
·wfill.dieMmetC1?t11er MU
tontfnue·w pa~-Agtllttsco~ona ·on~o~ .~etlons' fn-a,e~~ w;tfotb~
ci>nunlmon
spfJ~~ln~w.Uel~ Umt awUedontl!~ d~ ofA~ ;:s1e~t16n. .
_:E. If' A• . ow U~ _~y Pinfolpatlonf~- or.olbet liml:lunts:
lit, the ~IIS
Agent"s~t:tiati<»i.with tb~~ Cei\~1~ or if u,: amoun~beeclm.e duealtar
~on. ·.~ aittbodi.eiUeen,ee'to ~~ct ibeilnt®b.t-due.
ffumanyCO~OUI ()f otlitir
11 a=olll'ii
amounts.due-Agentu.btUAgtrnt whhUc~ lia!!beim.fullyprdd,
8. ~f#O!itltft,1• ·
A. r~Uct~ .~~
Agiml ~tints
.(t) Ascat
·;i~4'1111ilccnRdu • ~ :-~ b~ktr pr sai~~n (a "It~
'&1ate~o~i wblthth~~ -~iU~ ii~~~ J\tu!ntla
ht ibo.stato.tn
l;illnUdy.a~JCJ~a Ji¼il 1?$Wis _~~Qnlll iri lkal ~ : ~~
.(l) Widbasn9tbc.mVTidun
_tIsiWtt:1ow,
A)lCti ~ la.st five~ a ~J .
in Anytawmtal{egingll.~iesshmal rnbc:onduel or .vJol~ti~nof~ d~®e _1tade
pni~cd~er llw.n~r
·piotl:ctloB is •tcuritntly ,ubJ~'tnmt·iQVdtlkatiori b)--,.
teat~ ·«inunlssionoreomptllablett>Vendghtbodr.
{3). Agent ::~p~ly Yc~js ~ -warmnt.t ·that Agent ls he lO~-
Withth, M.a:ket~ 11t1d 1batAgentls not boundby a p~ ot CO~lment tot:ny
otherrul ~ ~PMY• ogency.~attcm, ~ J)OtSOn 0t. ~on -thatpmhlbtts
or ,pte.vents Alt@t~ ~chuliig wJtb.lho.Xe.I~ WUltama~d'oiJ.
(4) ~ ~ptc:30n~vo. of· LI~= M IuUct WUliaiM bu -~ w.t .
Agut din~ ·rw ~e busi1teitt.wh~ll¢r:'W11rir;h,j
11Uvµig~llin-'re,iddetttfaI part.time
1Nbf!PSND§N'CCQN18ACmBAPBISMIJ(r ,., .
 or !u$t¥o. ~~: that-the
-1\gr un~le
of.:thf by any ,I
-courter arbltiati<.>npllie11the findtris. will~va no. ~ffwt r,in- any ath~ l)'ItMsionof 001
Agr«ment. fllldt1lltitherprov!dom( will tctnl\htIn Ml r~ Endefftct.
)l . Tbb,~~ lnmudwa Schedule and.Onld~ thm
l a.~ MYl'ollci'.el .~U~
WUHam; i~ Cduction
to_tnmissid,~ l,lJltil
AJJ~t'SMXt
wiver.sat,-·(asdewrminedby date AgentJoinedl(eJlerWilUams}-: 1·
l
• Th~igcm.'s
Jo.hti_n deietmined
_g gii;,ntl!Js thtt,mo@IAfi.erit
:by_ tiisntml~ u~mffita,and I

receivesAgent'$l'R.l!C.9ril.e;mlan~s
KellerWUU!Ul1$ Uccr1se.

OFFICEE10>ENSES;
som.ri:busJnes-s expe• (i~~~onthlyCO.PY prlWie
c::~lll',g~, ,l)fficerent,voi~l, -~ctiou f~; ¢m
·~~~~~:::~~~~~J~~tf
oft'.
.
10.set=~n~s,voii:'emlltl cantprivileges
itrtdCO~)' wilt bt,tumed
' i
. !

Onc.e~ 41genrhasrear:he,hhelr
.cap~l~000.000 -·u d~rlbed ~,ie)., lheywnibc-b.Ultdi1$25.00.
inprod1111liott i ;
1;
t~otl.oh fee foreachttansnctlO#thatQleiffl,~
fbr.therem~ct ot1h11t~(~mry '/MltrAlsc>. Qlpp~y{"ft · i.

ogcnuiare~nsible for anyQftheir.Bu~r"sAg~~sand.Astlawnl'iJkllb, : · · '

tn_4il,e~n~·~m.~ partyfornrtj ~ --~nntmites
.A..itenf
sJnd~~"ni .c-o.n:craoto.r
stanaWithKelterW!Ulf.m~ !'i.
Aj~ritffl.ltlwrized<:eller- Williams.tu dedlielfiurnmits~dlng ~onunlulons,~l 11.1rtounu o\ffi:llit the .timeoft1,~
tc~tnationof thilagreement. Agcnla\$0authori:i,tKellerWilffams10d•t auamount$ ~ by agent
•fter·sud\~ate,whentho~ amoun11 arem~um:d unbehalfof AgentbyKel~ Wntlams (ie.Al30RcllirJies,
1In~~en~dt71i). MY comsnis~tol.\ lnOOlnb~111le-seized WIUIIU'.ni
by:JCcllct to sautif)rtn~rues owtd Keller
WhUams ·\\-ill be t\lllyda~mtn~Qd nndJj:uUled ffle,. Copies
ln Asent'$ b\d~di:111 Contt'ifetor otlhls ' i'
dac:ument&tfon
$hallbpsup~Uedupcparlance,
Keller Wlll!arns
oreatod a new ovol of real oslata company.Your company!

2.2 The Keller Williams Philosophy
If the companysucceaslullydovelops Its associates,then Usassociateswill nuccessfully
develop the company.

2.2.1 An End to CompromiseBetween Broker and Associate
What makes this task so stgnlllcant s tho reallzal!on that compromise Is lnherent in so many
real estate companies, For lnslance, high commlsslonplans usually mean no support, no
education and no team environtnent.Superiorsupport, oducatlonand loam envlronmanl
usuallyloadto low commlselonplans.Neithercompromisecreates a wln-wlncompany.
KeOorWnllatTisIslnlerdepondenllydesigned to put all of these compromisesto rest. Kelter
WIYlamstncorporatosan Incomparableset of concepts found In no othor real estate
(;ompany.

2.2.2 A Clear Mission
Kellar Wllllams has developed a clear sense ol ils own vision and dtractlonfor the future.
Keller WlfflamaIs a training and consultingcompany that also providesthe franchise systems,
products and serviceswhich lead to productivityand pro11tnblllty
.
Ketler WUllamathinks llke a top producer,acts Ukea lralner/consullantand focuses anIts
acllvltles on productMlyand profitability.

KellarWllllan1sRealty,lnc:. -Pollclea & GuldellnesManual,Rev.4/1/15

385
 IV. lnstJrullonaland PromotionalMedia Advertising
V. Relocation and Relorral
VI, Ancllary BusinessOpportunllles
VII. Recognition
Vlll.Communlcauon
IX. Marketing and Customer Programs
X. Compensationand tncome Opportunities
Throughthis process,KellerWilliamsturrnithe productsand sorvfcosrecommendation
and quallly control prooassovor to Its nssoclnleRand affiliate brokers. The process
provides markolpla.cofeedback and Iha dlroctlon neededto dGvelopeffective business
loolawhen they're needed, It's part of the culture, Alwayshas been-always wlll ba.

2.2.9 World-ClassImage
KeiferWilliams Really is one of tho most recognized brands in tho real estat8 Industry
becauseof the education,training and technologyofferadto our asaoclntea.Howovcr,
wllon It comes to local branding, the company strongly belleves that It Is the associates'
brands that matter most. Building and malntalnlng a powerful, locally relevant brand Is
tho most Important strategy for an associate.
EvenU1eNationalAssnclatlonof REALTORS®has released research that proves that
consumers do businesswith the real estate prolosslanal that they like and lrusl-not
companies or big, haavlly-ndvorllsedbrands. An offloo, a Region and even KWAI, always
take a back 5eat to the associa\e's brand

2.2.10 Tailor-Made Education
KeberWlftlams Realty fs a tralnlng ru,d coaching company that also happens to be in the
buslness of real estal8, Through its !faining division, KelterWIiiiams Unlvarslty;onllne
portal, KW Connect,and Its coaching division, MAPS Coaching,KeNerWQllams
associates have access to high quality education during every stage of their career. A
brand new assoolata lo an experiencedmega a.ssoclatocan find Iha right training and
coaching opportunities to propel the career to tho next level.

2.2.11 Local and Regional
Contrarylo most, Keller W IIatns views he real estate Industryas a localand regional
buslness. For th s reason,It has taken unprecedentedmeasures to design the nrmas u
team of regionaloperat ons. In turri the goal of each Region Is to becomo n major
regionalpower by bulld ng major real estate forces In local markets.
This strategy endows our assor.lateswith the strongest possible support system In the
tndtlslry,Everyonewins.

KellerWilliamsRealty,Inc. Pol!cles& Guk:leKnos
Ma.nun~Rev -4/1115

386
_________________________ Pl¥fl.l!fHIIII
2.2.12 A True System
In tho Markel Center, Kaller WIQlamshas created U1erndustry'sstrongestlong term
economic;model time tested and proven.Thts was achieved only altor thoroughresamch
and practicalexperience.
For many years lhere WijfQonly tw11major real estato offlce economicmodels-
traditionaland 1ooporcord-desk fee. After lnvastloatlngboth systemscarefully Keller
WIiiiamsassociateschosa to take the bast from both.Toa resultwas a better win-win
ec:onomlcmodol which fs a hybrid of Iha two.
Our associatesreceive all of the supportadvantagesof ''traditional"while gaining more
compensationadvantagesthan Justa ftdeskfee" concept. For tho broker It provides the
lowes1financial tlsk operating system possiblewithin a full-supportcompany. The KellM
WIiiiams economicand operating systemdeliverswhere othors fall short.

2.2.13 Get Involved
• Attend [)rlcntatronand completelyread this manual.
• Take part each week In the many oducatlonal,support and leadershipopportunllles
availableto you.
• GET OUT INTOTHE MARKETPLACE,BUILDYOUR OWN MARKETDOMINATING
BUSINESSMEMORABLYAND HAVEHJNI
Remember: Supportyour fellow associatesand team and they will support youl

KallerWIUlomsRealty,Inc.- Po11clos
& GuidelinesManual,Rev. 4/l/15
____________________________..lh§Mii-
4.9.1.11 Complaints/Disputes Involving Other Associates
• Associateswho have camplalnts/dlsputasagainst othafs shouldltnmedlalelydtrect
thom to their TL in writing.
• These shouldnever ba discussedwith other associatesor cllonts.

4.9.1.12 Conduct
• Alcohol Consumption Policy. We believe that ii Is unwls0to consume alcohol when
working.Therefore,it ls a guide!ne of our companythat no memberof tha
organ1zattonuso ak:ohoUcboveragesduringbusinesshours. No memberol our llrm
should come to their office and/or MarkelCanter during businesshours, or ofr hours,
wlth alcoholon their breath, or to any extent under Iha Influenceof alcohol.We
con$ldorthis to be a strlcl guideUne.
" Conduct at the Market Center. EveryoneIs to be well-behavedand professlona at
tho MarketCenterat all Umee.This le an office where professionalbusinossIs being
conductedand you should expect a business-Ilk.a altituda to be taken. We want
everyooolo have respeotfor onch other In their daily pe,oonaldealings.Thera
shouldbe no vulgar language,cursingor yelling.
• Cocperallonwith Other Brokers. Pleasebe very cooporatlvewith other
REALTORS$for thoy hold the keyto a great doal of nforma!lon. With theirhelp, you
can becomevery successful.Wo cooperateand live by tho oplrltof cooperationwith
all other REALTORS®and brokers.We do not, by any moans,wantto be arrogant
and feel llko wo can do the Job
by ouraBlves.We solicit lhe cooperattonol other
REALTORS®at all times for the banofltof our clients.
ll ls our policyto share informationwith other companiesond follow a prnctlc:eof
lotal cooperation.This.,of course,does not mean the giving of confldontlal
1nrur111atlon,or any matters ol that naturo, bul does nvolve lnformallonconcerning
propertiesthat ara avallableto aUREALTORS®who are InterestedIn doaHngwith
our companyIn an open, above board manner.

4.9.1.13 Contracts
4.9.1.13. 1 Presentationto the Seller
Eachcontractshould be presentedlo the seller In person, wllh a comp!etoSeller's
Slatomentand a quanflcatfonsheet on tho buyer { f you ca,nobtaln one).
• Contractpresentationsare to ba made n a professionalmanhflr and are to be
dlstt.1ssed
with tho owner reallzlngthat many Items other than moneygo into a
contractoffer, For e)(ample,dale ol possessioncould be a determiningfactor. These
are lhrngsthlll are discussed!n your trainingprogramand must bo consideredat
each contract presentation.
• The sellershoutd be given every opportunityto accept or reject a contractofter.

KallerWllllamsRealty,l11c. Pollcle11& GuldeUnes
Man Ill Rev. 4/1/15 . 4-25
. r • r

4.9.1.14 Dress Polley
II is lmporlantthat everyonewho associatesWithand ropresentsKellerWllllams Really
do so In a proloBBlonalmanner.Associatesshouldconduct lhomsalvasproperlyin pubHc,
keep ther,oar clean, drlvo courteouslyand maintaina wall-groomedappearance.
Appearanco a tho single mo&tImportantlmpressfonfactoryou have. II is importantto bo
well-groomedfrom a waU-kaplhatrslyledown to one's hoes. We are professionals;your
manner and oppaarnncoshouldrot act this at elf times. This dress coda shouldInclude
coming nto a MarketConlor on an associate'sday ort

4.9.1.15 Errors and Omissions (E&O)
The E&O premium s determinedby the E&O prov def.
Markel Centersmay havethe option to
1. Deduct MarketCanterasi.;oclateE&O tee from each side {llstlng or sales} through the
DisbursementAuthor zaUon n t o WlnMORESystem.

2. BIii oach associatea Market Center aasocale &O fee monlhfythroughthe
AccountEdgoAccountingProgram.

4,9.1.16 Equipment/Software

4.9.1.16,1 Copy Machine
• Copy Machinewilt lnctudoa Code mochanlsm
• A cost per copy will be paid by the assoclato.

4.9.1.16.2 Fax Machine
• IncomingFax
• OutgoingFax - cost por pago

4.9.1.16.3 Olher Equipment/Software
whfchlhe ALC may approveto purchaseand which may be
Other equlpmont/sottwa.ro
In the MarketCantor.
avo.llable
• Digital camera
• Colorcopier
• Associatesoftware
• Headsetsfor prospecll~
• Specialcomputers

4.9.1.17 Escrow Deposits
• Time Is of the essencewhen deposillng earnest money/escrowchecks.
• Escrowchecks shouldnever be held for any reason onca an offer has becomea
contract.

KeiferWDl!amsRonity,Inc.- Policies& Guldelnes Manual, Rev.4/1115

389
 • Al! escrow depositsshould be lmmedlatelyturned over to the titlecompany,or other
entity named lo contract,for dapositor daposltodto tho Markel Cantorescrow
accountlmmadlately

4.9.1.18 Keeplng In Contact with Your MarketCenter
lto pay lhelr Markel Center b~Iby lhe end at eachmonthrosulllt1gIn a
$0 (or credit) balanco.A $0 (or credit) AR balance occurs only whenall AR has boen paid
In full. Tho MC may not forco a $0 AR balancethrough accountingru:ljustmsnts.The MC
wHIoslabllshpollcleson lato offk:o bHlsand late Feeswhich could result In the returning
of a roal estate ltcense.The MC will send demand letters vla cartlflodmall,"return receipt
requested•,to all associateswith Invoices90 days or more past due, If stal unpaid, the
MC wlUwrile off invoicesas Bad Debt Expense.
Accounts Rece&vablobetween Market Centers are not allowed,Theseentries are In
tho form of loans dcoumenteclwith a slgned note (fncludlngterms for lnlerest) OR paid In
full by the end of lho month.

A.2 Auto Expense
Should not excood$100 per month.

A.3 Cash
Operating BankAccount signatures should lnoludothe TL and OperatingPrtnclpal only.
It Is highly recommended1hatthe MCA not be on lhe signaturec."lrdbecauseof a
nnt .. ntf .. l r.nl\111,..tr,f lnt,.riu:I nr IIAhllitv

393
VI. Listing Agreement
 ~,
TF.x:As
ASSOCIATION OF REALTORS®
RESIDENTIAL REAL ESTATE LISTING AGREEMENT
EXCLUSIVERIGHT TO SELL
l/Sl!O,THISrORUBY P11111il0NSWtt0All6
N0f"~O,n!E'TIMS~110HOF ftl:AI.TONe a N:11'.MmlOfl2E).
--lalolMoUTilll,O,lftt.11! 1•

1. PARTIES:The partiesto this agreement(thisListing)am:

Seiter. Ber.,.,
,u,-4:lAM .•71Hf fu,<_

~~xf:!§~g: .
a~,
Clly,State, Zip:
~;r=-1~~~~41~,
!ll~Jtt ~ r~st' .-='1
~ ~J;ii±
bt-
Phone: _______________ Fax:_____________ _

E-Mail:-------------------------------
Seller appoints Broker es .Seftel's sola and exclusive real estate agent and graots to Btoker the exclusive right to sell
the Property.
2. PROPERTY:·Property" means the land, improvemenls,and accessories described below, except for any described
exclU91ons. \;> 't
A. ~e
In
,~-:la ji4g,,=,bb::•-
......-n....,f=;s
11!),.
AddJUon,
County, Texas known
~-t' ~A ed
on a m.)

B. lmproyemeQl&:The h0USC1, garage and all other flx1ureaand lmJ;)rovementsattached to !he above-describedreal
Pfoperly, IncludingwHhoutUmita tion, the following permanentlyInstalledand bulll-tn llams,ff any: all equipment
and appliances,valenc9s, screens, .shutters.awnings,'Nall-to-wallcarpeting,P!irron;.celling fans. attic fans, mall
boxes, televlslon antennas and satellfte dish system and equlpmen'1mounts and brackets for televisions and
Gpsakers,heatlna and alr-<:0ncitionlngunits, security and ffre detecUonequipment,Wiring.plumbing and llghtlng
fixtures, chandeliers,water softener ays1em , kitchen equipment, garage door openen;, cleaning equipment,
shrubbery, landscaping,outdoor cooking equipment, and aJIother propeny owned by Seller and attached to tha
~escribed reBlpn:,perty
.

c. Accessot1es:
The followingdescribedrelatedaccessories,If any: Windowair c0rw;t!Uonl119
unfta, stove, drep!ace
!Creens, cut1alnsand rods, blinds, window shades,draperiesand rode, door keys, mailboxkeys, above11round
poo~ swbnmlngpool equipmentand maintenanceaccessories,artificialfireplaceloge,and conlrofsfor: (0 satellite
dish systems, (ii) garagedoors, (iii) entrygates,and (Iv)olher improvementsand accm,SQries.
~
-
Puge, otto

Exhibit
Witness
>
-=y;:::::a.:;-y~/-
t1__t" __,JN!lle1MAe11.1.ud
DEF 604
Date 1-~- l le
Kelly Fisher, CSR
 OOIYIPfl'IAllon
Brokltr11\aY
•
nx:elveunderthlll U8lli,g.
•-•t•.., --4~--.
_.._._
....,.., to#Y\•t•• _., elU\,'IJM\111
IU Cr1J Ottltlf

f.l) QmgrEm AQd/Qc Bmhl/l:lfbftEmf'lflll: _________________ _

E Pmtftdklrt
P,dod:
(1) •Pfotocllonpatlod'"meanslhG1Um. 11111mng the day atw lhls llsdllO endsandconllnUl'lg 1or_/_Q
.......
__ _
dl!l's "Sllr11111in •nr ttal!Sferof any IH i.lmplllm1eras1In thl>PIUl)lltywhe1tmby oralo, wrillaneurttmlfl(
oropllon.
{2) Not latllr than iO clay11 aher this Usllng ands, Bl'Cltlf may 1end Sell¥ writtennouc. spodlylng 11Ml'lll'llfl ti!
pllflOIIS-..hOGIIallent!on W111S t:alltd to the Propel!)'Qllfng lhl, U.ling. II Seller agtHli IO 11111
1h9Propatty
rJurlflo
1h11 p«llec:tlonJ:Jf)flodlit>• pu10n narnodIn Uw ncUc:e or IDa re!allv•cl a p11rson ruunadIn 11Jc11111lc.,
Seller~ pay Bloker,Upon \hlJclosingol the aaftt,the amountBroke( would~ been tmllllcl to recelveti
thl&LbtiflgMre ail In efeet.

~Us*11co11C11nw,g ;;7105 ~,e- A,..lfe- Au<-h.-lX -z?7"~
D. &g\J§lgoa·~ f.oloWlngln,pn,ffl!lllnts a~aodes wMI
b9 rellllnad by 9:1!1JAd
m,,lt be~ar to
de-:-!skVtt;·:.~~~tJA':uw~ .&1=£1£f!'i ~~ .
I; Q 11 ~ not
~S:112!!.l&ur Toll pn.,peny aubjtct to mandllla,y merntlerihlp In • prvpl/l)' =ffl'

s. USTINGPRICE:sen«ln11nctaBrokerlo marbl 111•Propei,yat th• followin\lpnc,:, ________ _
{Ul1/noP11c1t). senorOQTIIISlo "" 1h11Prapmy !or u. U8dng Plfoe or anyother p,1c,eacc,peabl,10Sellar.Seller\IIIH
pay Ill ~c;af ckl!lngJ:Qll:Icharged lo aelletsol mldentlal n,11mall! In 'f911U(r.aflar'11
lypic41clOSln;cmi. '" 111011
eel fol1hIn lt10Tllsldenllal
co.-r.ictionns piomUlgehld~ IlleTuas RMI£,!AteCormnlcslon),

4, TERM:

A. ThiaUltlllg boglnlzan tf-«,e·
f a2?/5vidand& Ill 11:59p.m. CII \ 'S",,,pf.
I /).l)J>.
B If S.llvr 11n11is
lnla a biodlngwrlttaoi;:onlr:U:1la 1,alj lh• ~ btforeIlle date lllt8Udfng bHQln#-and
1heconlrac:t
la ~nlifla an 1hed.ltt lhb Ustino bepis., !hit UStlngwil 11ot~no.. wtllbOvo111.
11111d
5. BROKER'SCOMflENSAllOtf:

A. When e;imec1 and poyablt, Sellft wll payBrokor.
,a{1}_-1,.4.,,....,
___ %oflheaaJoapr!t11.
a (2)_
8. !;am: when an)' one of 11wlolloTMg otOJtw !Ming-!his Llillng:
&olett't campon,llllon Is e111111d
(1) Selef selll, UChanOcs, oprior19,egn>ll5 to HO, llgl'IIDIlo l?llChall(llt,OI'agttllS Ill opUonIha Prl:ipllrly'10 811YOM
at anyP'b oo llflY 11rmr.
(2) Bn:ikarlnlivlduall)IorIn ccop1111!1«1 withIUIGthtrbtoktt procur.&a buyer 1111dy
, wllRng,lmd lltlllllo bvy 11141
P!Vf)V!1yII tti. l.llltlngPrb or at '/llf'/ 0ll11rprice IIOlllpllil!e la Seier, Qt
{3) Selk!rbttlcm lhlsUstlng.
C. flmlll: Oncaeilffltd,Brokafsc.ompcnaallo!,
IJ payab!Oefllltt duringlllb Uo!&!g01 aller It onds at theeatllerof:
ft) .diec:IMlnQand ftmdn~ or anyaala01' exctiangi,ol llll or partof tne Property;
(2) Sellar'arelulal to s.a lhe PfO!Jell)'afterSlollef1 campanutlonhi, bee" ea,ned;
er
t,J) StllDN bnlaeh Ill lhi11llstJIO;
('I II 1uch llme u olhel'WIMNI ltlr1nin this ll$tm9.

Ewket'aCOlllfltnAllonIll !!21. 114yableIf a cale ol Iha P,operty do4!Snot clole or lune!a• a ,e,ult QI: \I) Sellal'11
fallurll,wlllt®lfaut al Seier,t.od1Pver10a buy&rI dllodOf a lilltipoiq' as n,quiriadby !he C!Xllradlo $ell; (I) Jou
ol llWNlr!Hpd111lo foroeloaUna « 011-.tleolllp,aceeENTIAL INFORMATION: During this Uatlng er after it ends, Broker may not lperty
H. all Jnlormallonrelatlng to the Propeny Seller provides to Broker ls !rue and corrac.tto the best e>fSollar's
knowledge;and
I. lh9 name of any employer,relocationc;ompany,or olher entJtythat provides benefits lo Seller when Ballingthe
PropertyIs; --
13. SELLER'SAODrTIONALPROMlSES:Selleragreesto:
A COOl)erate with Brokerta facllltale1heshowing,marketing,and sale of the Property:
B. notrentor lease the Propertydurlng1hfsListingwlthovtBroker'spriorwrittenapproval;
C. not negotiatewith any pn:i8f)ecttve buyer who may contactSellerdlnictly. but refer al prospectivebuyersto Broker;
D. oot enter into a listing agreefl'lentwl1hanotherbrokerfor the sale, exchange,lease,or managementof the Property
to becomeetfect!VO duringthis Usllngrs,
andpermittedassignees.

D. Joint aooSeveral:All Sellen, executingthis Listing are Jointlyand severallyHablefor ihe pertonnanceof all Its
terms.

E. Goyem;ngLaw:Texas law governsUls lnte,pmtatJon,vandlty,perioflnance, and enforcementof this Listing.

F. Severablll~:If a court finds any c:la1JSe
In this LbUnglnvaltclor unenforceabkt,lh&Jremainderot 1hlaUsUng wlUnot
be affectedand all otherprovlalonsof thislisting will remainvalid and enforcaable.

G. ~ NoUcesbetween Iha parties roost be In wriUngand are effeellve when sent kl lh& recefvfngparty's
address,fax, or e-mailaddressspecifiedIn Paragraph1.

21, AOOTflONAL
NOTICES:

A. Broker's «wnpensallon or the shartng of compensation between brokers ls not fixed. controlred,
recommended, $Uggested,or maintained by the Associationof REALTORS®,
MLS,or any IJS11ng
aervlce..
B. In accordance wfth fair housing Jaws and the Natlonal AssocJation of REALTORS8 Code of Ethics, Broker's
services must be pl'01'ided and the Property mvst ba shown and made available to all persons wnhaut
regard to rac&,color, religion, natJonal origin, sex, dlaabBlty. lamllial status, sexual orientation, or gendor
Identity. Local crdlnencas may provide for aiddlUonaJprotlleted classes (1or example. creed. S1att.tsas a
student, marital atatos, or age).

C. Broker advises Setler to contact any mortgage render or other nenholder to obtain Information regarding
payoff amounts for any existing mortgagH or liens on lhe Prope!1y.

D. Broker actvla&sSeller to review the Information Broker submits to an MtS or other Ustlng service.
E. Broker advises Seller to remove or secure Jewelry,prescription drugs, other valuables. Hmarms and any
otherweapons.
F. Sfa1'11asor Ol'dlnances may regulate eartaln Hems on the Property (for example, sw(mrnlng pools and
septic systems). Non-compliance wHh the statutes or ordinances may delay a transaction and may result In
llnes, penalties, and llabntty to Seiter.

G. ft 1he Property was bulft before 19781 Federal law requlles the Seller ta: (1) provide the buyer wHh the
federally approved pamphlet on lead poisoning prevontlom (2) dfscloae the presence of any known
lead-based patnt or lead-baMd paJnt hazards '" 1he Property; (3) deliver ,n recr:ards
and rapol'b to the
buyer related to such palnt or hazards; and (4) provide lhe buyer a period up to 10 days fD have lbe
Property Inspected for such paJnt or hazards,

(TAR-1101)01-01-14 1-od~r ,__ by_od_ ... ~andSeBa,-4-7.iJ£.. Page 9 of 10

l'mzt.ldlllllh&lpl"anr18~Zfl:l.0Qlll IICffllAIIMIIMWII Raad,Fnl:Nl,M'd!l;an4IOU wmu!R,lsdtSJ'IIII

JOJ~&\WJd

DEF 611
Ae,lden!lal Ustlng concerning

H. Brobr cannot give legal advrc:a. READ THIS LISTING CAFU!PUU. Y. If you do not understand th• effect of
this U&tlng, oonsult an attorney BEFORE signing.

Sellttr'sSlgnatura

(T~1101}01-01-14 lniliaJedforldanllflcadonbyBrollai~seller Q~ Page1oof10

DEF 612
VII. Police Report
l,lillt;'-Erit.,u,tiimratm•J l d)()l u... CJ.Lv
D FAT'-1.. or;,...,D ~c«0<::1.tiv5 o ~AlUIO:.O u M1,e lXlSVPM.c, 1e1n o tt!'6&.
.:o•H!

152181102
AUSTIN

I I I I I' 1 I I l I

~;i$l i...-. l.34 BURGRSS LANI!: AUSTIN, TX 78138
t;q,. St.119, ZIPI
..
t: oiw...It
l:' .. >
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~ ,H ':.!~ ::2 "'
...
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:: '"'
"' ~ £ .. ,~4 ~, ;"J~'f :;i:;t
: 1 1 .l TAYLOR, ?ENNY, HAIUUNGTON N 56 w 2 l l 5 !in N .9& !Hi 97 91
, ____ ......_
__ _ ________________________ +--l--+--'--+----l
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N.oln.1.,,.

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h-.:n,-,,..,.~.,,._.,,.
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~'::,:,
l=t~:.. PENNY HARRINGTON TAYLOR. 134 BORGESE! LANB AUSTIN, TX 78736
"""'™
n., 0 llo1~
Qli'iff

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SOUTHBIDB WRBC'ltER INC

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