                                  NO. 07-01-0085-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  MAY 22, 2002
                         ______________________________

             ELIZABETH MOSER Individually and as INDEPENDENT
          EXECUTRIX of the ESTATE OF MALCOLM MOSER, DECEASED,

                                                       Appellant

                                            v.

                   DONALD L. DAVIS and DONALD L. DAVIS, P.C.,

                                               Appellee
                       _________________________________

            FROM THE 222ND DISTRICT COURT OF OLDHAM COUNTY;

             NO. OCI-99L-041; HON. WILLIAM R. SHAVER, PRESIDING
                      _______________________________

Before QUINN, REAVIS and JOHNSON, JJ.

      Appellant, Elizabeth Moser, individually and as independent executrix of the estate

of Malcolm Moser, deceased (collectively referred to as Moser) appeals from a take nothing

judgment entered in favor of Donald L. Davis and Donald L. Davis, P.C. (collectively

referred to as Davis). Via five issues, Moser contends that 1) Kelli Walden (Kelli), Davis’

secretary, was acting in the course and scope of her employment as a secretary of Davis

on August 19, 1997, as a matter of law, 2) the trial court found, as a matter of law, that

Walden acted within the scope of her employment, 3) the finding that Walden was outside
the course and scope of her employment in creating, drafting and executing wills on behalf

of the Mosers and without Davis knowing of it was against the great weight and

preponderance of the evidence so as to be manifestly unjust, 4) the trial court erred in

submitting issue two without a date specific in the charge, and 5) the finding that Davis was

not negligent was against the great weight and preponderance of the evidence so as to be

manifestly unjust. For the following reasons, we affirm.

                                       Background

       The underlying suit involves a legal malpractice claim asserted by Moser against

Davis, the attorney she hired to prepare reciprocal wills for her and her late husband

Macolm.    Because Malcolm did not inform Davis of the identity of the proposed

beneficiaries of a trust that was to be included in the wills, the documents were not

executed before Malcolm was admitted to the hospital in August of 1997. Upon his release

from same, Moser contacted Kelli and told her the wills needed to be finalized because she

was unable to find her husband’s prior will.

       At the time of the call from Moser, Davis was out-of-town. Kelli told Moser of that

fact. Nevertheless, Moser insisted upon the completion of the wills. Furthermore, she

delivered to Kelli the names of various people who Malcolm allegedly selected as the trust

beneficiaries. At that point, Kelli prepared same for signature by the Mosers without

informing Davis, and in preparing it, she selected the provisions to include therein. The two

testators executed the documents in Davis’ office on the following day, again without his

knowledge, and Kelli obtained the witnesses necessary to complete the task. So too did

she notarize the signatures placed on the wills.


                                               2
       Again, Davis was out-of-town throughout the transaction. Furthermore, Kelli had not

told him of the Mosers’ desire to complete the documents. Nor did she tell him that the wills

had been executed once he returned, even though they were being kept in the firm’s safety-

deposit box.

       Subsequently, Malcolm died. At that point, it was discovered that his will did not

dispose of his estate as he allegedly desired. The assets were placed in trust and not

given to Moser. This resulted in suit against Davis for malpractice. A point of contention

at trial concerned whether Kelli acted within the course and scope of her employment when

she sua sponte created the documents and placed them in the safety-deposit box without

Davis’ knowledge or consent. The jury found that she did not, and Moser appealed.

                                        Issue One

       Moser contends, via issue one, that she proved, as a matter of law, that Kelli was

acting within the course and scope of her employment when she prepared and had them

execute the wills. We overrule the point.

       Standard of Review

       The standard of review applicable to claims of legal sufficiency follows. The

appellate court must examine the record for evidence that supports the finding while

ignoring that which contradicts it, and, if there is no evidence to support the finding, the

court must then examine the entire record to determine if a contrary proposition is

established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); Texas

& N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947); Raw Hide Oil & Gas,




                                             3
Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-276 (Tex. App. – Amarillo 1988, writ

denied).

       Next, employers are liable for the negligent acts of their employees if the employees’

actions fall within the course and scope of their employment. Baptist Memorial Hosp. Sys.

v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998); Hedley Feedlot, Inc. v. Weatherly Trust,

855 S.W.2d 826, 837 (Tex. App.--Amarillo 1993, writ denied) (discussing agents). Though

easily stated, the rule is not easily applied. For instance, it is not enough to simply ask

whether the employee was on the company payroll or company clock when the acts were

committed.    Nor is it enough to ask whether the employer provided the means or

instruments utilized by the employee to commit the tort. Though each of the foregoing may

be indicia pertinent to answering the test, Restatement (Second) of Agency §229(2)(b) &

(h) (1958), they are not the test itself. Instead, the latter is a tripartite affair wherein each

element must be satisfied. And, those elements are that the act must be committed 1)

within the scope of the general authority of the servant, 2) in furtherance of the employer’s

business, and 3) for the accomplishment of the object for which the servant is employed.

Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); Gant v.

Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212 (Tex. App.--Amarillo 1996, no writ). If

the circumstances of the particular case establish the existence of each element, then

liability may be imposed even though the specific act was unauthorized or done contrary

to express orders. Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 777 (Tex. App.--

Texarkana 1995, writ denied).




                                               4
        Next, with regard to the element of general authority, it is important to note that the

conduct must be of the same general nature as that authorized by the employer or

incidental to the conduct so authorized. RESTATE MENT (SECOND ) OF AGENCY §229(1). As

mentioned in the Restatement, “a servant is authorized to do anything which is reasonably

regarded as incidental to the work specifically directed or which is usually done in

connection with such work.” Id. at comment (a). This implicitly obligates us to compare the

conduct undertaken by the employee with that normally within the realm of the authority

granted employees hired for similar purposes. See id. at §229(2)(a) (stating that whether

or not 1) the act is one commonly done by such servants, 2) the master has reason to

expect that such an act will be done, and 3) the similarity in quality of the act done to that

act authorized are factors to consider in assessing the scope of employment). With this

said, we turn to the issue at hand.

        The record discloses that Kelli was hired as a secretary or administrative assistant

(to be politically correct). Nowhere does it illustrate, however, that she was an attorney or

otherwise licensed to practice law. Thus, as a secretary, she had the authority to do, and

did, things secretarial in nature. For instance, she often typed wills and other legal

documents under the supervision of Davis, received information from clients to provide to

Davis, provided documents to clients from Davis, executed documents at the direction of

Davis, notarized wills, obtained witnesses for the executions of wills, and some times

explained wills to clients.1


        1
           The extent to which she explained the documents she typed to clients went undeveloped. In short,
whether her comments consisted of simple descriptions of the instruments or explanations of their legal
effect is unknown. And, because it is unknown, we cannot simply assume that she undertook to advise those

                                                     5
       Yet, again, nowhere does either Davis or Kelli testify that Kelli was hired or entitled

to practice law. Indeed, Davis testified that though she typed wills and arranged to have

them executed, she was never authorized to draft one, deliver it to the client, and then

execute it on her own. Similarly, Kelli acknowledged that Davis would not approve of her

doing so. That Davis did and would not approve of such conduct is of extreme import

because in so acting she effectively would be practicing law. See In re Nolo Press/Folk

Law Inc., 991 S.W.2d 768, 770 (Tex. 1999) (stating that the practice of law, which can only

be done by members of the State Bar, includes the provision of advice or the rendering of

any service requiring the use of legal skill or knowledge, such as preparing a will); Olson

v. Estate of Watson, 52 S.W.3d 865, 868 (Tex. App--El Paso 2001, no pet.) (noting that the

use of one’s knowledge, training, and experience in the law for the purpose of creating wills

and other legal documents involves the practice of law). And, no one presented evidence

suggesting that practicing law was the type of conduct secretaries were generally

authorized to do or incidental to their general authority. Nor did anyone present evidence

illustrating that Davis hired Kelli to practice law or some how bestowed upon her the

general authority to do so as a secretary.

        In short, the record is barren of evidence illustrating that Kelli, as a secretary, had

the discretion or authority to render advice and make legal decisions on behalf of Moser

or any other client of Davis. And, it is that authority and the right to exercise same on

behalf of others that distinguishes between an attorney and secretary. It cannot be denied

that legal secretaries and their attorneys work closely together. Nor can it be denied that


with whom she spoke about the legal effect or ramifications of those documents.

                                                   6
much of the ministerial work done in a law office is performed by the secretary. But, that

the two work closely together and the secretary often converts the attorney’s thought

processes and oral directives into a tangible work-product does not mean that the secretary

is practicing or can practice law, as that term is contemplated in Nolo Press/Folk and Olson.

Nor does it permit us to ignore the fact that the two operate in different realms of authority,

one generally ministerial and one discretionary and advisory. And, nothing of record

suggests or establishes that Davis somehow authorized Kelli to pass from one realm to the

other at anytime. Thus, we cannot accept the proposition that, as a matter of law, Kelli had

the general authority to practice law by sua sponte drafting the Moser wills and determining

what provisions to include therein, all without the knowledge of Davis.

                                              Issue Two

        Via issue two, Moser contends that the trial court erred in submitting issue number

two to the jury. Issue two read: “On the occasion of the events in question was Kelli

Walden acting in the scope of her employment?” Furthermore, the entirety of appellant’s

argument consists of the following:

        In the Charge to the jury, the court instructed the jury that the court had found
        that Kell[i] Walden, as an employee of Donald L. Davis, P.C., negligently
        misrepresented the contents of the Will of August 19, 1997 to the plaintiff.
        That is a finding as a matter of law that has already beenestablished by the
        trial court pursuant to the Charge of the court. The submission of Issue Two
        contradicts the court’s findings, and should be ignored.[2]



        2
         The supposed finding of the court to which Moser refers is located immediately before issue one
of the jury charge. It reads: “The Court finds that Kelli Walden, as an employee of Don Davis, P.C.,
negligently misrepresented the contents of the Will of August 19, 1997 to Plaintiff.” What the trial court
actually meant by the phrase “as an employee of Don Davis, P.C.” is not disclosed in the charge or
elsewhere. And, because we do not know, we cannot simply infer that it intended to find or found that Kelli
acted within the scope of her employment when she made the misrepresentations.

                                                     7
As can be seen, no authority is cited in support of the argument. Nor does Moser provide

us with substantive analysis. Both were required under Texas Rule of Appellate Procedure

38.1(h). See Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App. – Amarillo 2000, no pet.)

(discussing the rule as applied to a constitutional issue). And, because neither was

provided, Moser waived her second issue. In re Williams, 998 S.W.2d 724, 730 (Tex. App. -

- Amarillo, no pet.) (holding that the failure to cite authority or provide substantive analysis

results in waiver of the argument).

       Second, to preserve complaint regarding the submission of a jury issue, the

complaining party must timely object at trial. In re Moore, 890 S.W.2d 821, 830-31 (Tex.

App.–Amarillo 1994, no writ). Furthermore, the grounds of the objection must be specific.

Id. Finally, the grounds asserted on appeal must comport with those mentioned at trial.

Galveston County Fair & Rodeo, Inc. v. Kauffman, 910 S.W.2d 129, 135 (Tex. App.–El

Paso 1995, writ denied) (holding that the complaint was not preserved because the grounds

asserted on appeal differed from those mentioned at trial). While Moser objected to

submission of issue two at trial, the sole ground mentioned did not involve the trial court’s

purported finding as a matter of law (under issue one) that Walden was acting within the

course and scope of her employment. Thus, the grounds urged here differ from those

mentioned below, resulting in the waiver of the issue now before us.

       Yet, assuming arguendo that waiver had not occurred, we would refer the litigants

to our discussion under issue one. There, we found no evidence supporting the proposition

that Kelli acted within her general authority when preparing and executing the will. Having

exceeded her authority in that regard, it hardly follows that, as a matter of law, she was


                                               8
within her authority when she advised the Mosers about the wills and the legal effect of

their provisions. That too would constitute the practice of law, something Moser failed to

prove Kelli was entitled to do as a secretary. Given this, the trial court could not have

legitimately held (via issue one) that the issue of whether she was so acting was

established adversely to Davis, as a matter of law.

                                     Issues Three and Five

       In issues three and five, Moser contends that various of the findings by the jury were

against the great weight and preponderance of the evidence and, therefore, manifestly

unjust. Those findings relate to Kelli’s operation within the course and scope of her

employment and Davis’ negligence. However, neither issue was included in a motion for

new trial as required by Texas Rule of Civil Procedure 324(b)(3). Nor were they expressly

mentioned in Moser’s motion for judgment notwithstanding verdict.3 Consequently, both

arguments were waived. Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex. App.–El Paso

1994, no writ) (holding that the appellant waived his contention regarding the factual

sufficiency of the evidence because it was not included in a motion for new trial).

                                            Issue Four

       In her fourth issue, Moser contends that to the extent issue two was submitted, the

court was obligated to restrict the time referenced therein to August 19, 1997.4 The latter



       3
       Even had they been, that would not have satisfied the requirements of Rule 324(b)(3). Kratz v.
Exxon Corp., 890 S.W.2d 899, 902 (Tex. App.–El Paso 1994, no writ).
       4
        The requested issue read: “ Was Kelli Walden acting in the scope of her employment with Don
Davis, P.C. on August 19, 1997 in preparing and executing Malcomb Moser’s will?” The issue actually
submitted read: “On the occasion of the events in question was Kelli Walden acting in the scope of her
employment?”

                                                  9
is the date on which Kelli drafted the wills on behalf of Moser. Furthermore, the issue was

to be so restricted, according to Moser, because it was undisputed that the secretary

committed negligence in placing the will in the firm’s safety-deposit box and omitting to tell

Davis about her doing so. We overrule the point for several reasons.

       First, Texas Rule of Appellate Procedure 38.1(h) requires that the appellant provide

the reviewing court substantive (as opposed to conclusory) analysis of the argument as well

as authority supporting it. In Re Williams, 998 S.W. 2d at 830-31. The analysis provided

us consisted of little more than the statement that “it is undisputed that [Kelli] was in the

scope of her employment in maintaining the Will in the office safety-deposit box “ and in

“failing to advise Davis that the new Will had been done . . . .” Furthermore, no rule,

opinion, statute or other legal authority accompanied the brief argument. Accordingly,

Moser did not comply with Rule 38.1(h) and preserve the argument for review. Pankow v.

Colonial Life Ins. Co. of Texas, 932 S.W.2d 271, 274 (Tex. App. - - Amarillo 1996, writ

denied).

       Second, in explaining to the trial court why she believed that she was entitled to an

instruction mentioning August 19th, Moser argued that the 19th was the date on which Kelli

“was” within the scope of her employment. On appeal, however, she asserts that if there

were any date on which one could question whether Kelli acted within the scope of her

employment it was the 19th of August. In other words, the argument proffered here is the

opposite of that urged below. And, because the grounds underlying the objection at bar do

not comport with those mentioned below, Moser again failed to preserve error. Galveston

County Fair & Rodeo, Inc. v. Kauffman, 910 S.W.2d at 135.


                                             10
       Finally, Moser is asking us to conclude that in performing a task outside the scope

of her employment (i.e. drafting and executing the will), placing the document in the office

lockbox, and then neglecting to tell Davis that she did either, Kelli somehow acted within

the scope of her employment as a matter of law. Simply put, the sum does not logically

arise from its components of the equation. In other words, we do not see how one can be

said to be acting within the scope of authority, as a matter of law, when she does something

outside that scope and secrets that and its product from her employer.

       Davis did not testify that her failure to disclose the act fell within the scope of her

employment. He merely likened it to negligence. Nor did Moser cite us to either authority

or evidence indicating that one who commits an act outside the scope of authority and fails

to reveal same to the employer somehow makes the act one within the scope of

employment. And, that Kelli may have used the office lockbox to facilitate her deception

(without the knowledge or consent of Davis) matters not for the act upon which all depends

(the creation of the wills) was still outside the scope of employment. So, we cannot say that

Moser was entitled to the proffered jury issue because she indisputably proved that Kelli

acted within the scope of her employment when she placed the will in the lock box and

failed to disclose that to Davis.

       Accordingly, we affirm the judgment of the trial court.




                                                         Brian Quinn
                                                           Justice




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Publish




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