                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CA-00182-SCT

WALTER AKINS d/b/a AKINS CONSTRUCTION
COMPANY

v.

GOLDEN TRIANGLE PLANNING                         &
DEVELOPMENT DISTRICT, INC.


DATE OF JUDGMENT:                         12/18/2008
TRIAL JUDGE:                              HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   J. NILES McNEEL
ATTORNEYS FOR APPELLEE:                   TOMMIE SULLIVAN CARDIN
                                          WILLIAM M. GAGE
                                          PAUL MICHAEL ELLIS
NATURE OF THE CASE:                       CIVIL - CONTRACT
DISPOSITION:                              AFFIRMED - 05/13/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Walter Akins d/b/a Akins Construction Company (Akins) filed suit in the Circuit

Court of Oktibbeha County against Golden Triangle Planning and Development District, Inc.

(Golden Triangle) under the theory of respondeat superior, seeking, inter alia, $80,628, an

amount that he claimed represented profits owed to him for constructing homes under the

federal government’s HOME Investment Partnerships Program (HOME), which was

administered locally by Golden Triangle. According to Akins, the profits to which he was
entitled were embezzled by a Golden Triangle employee, Phyllis Tate. Upon both parties

filing motions for summary judgment, the trial court denied Akins’s motion for summary

judgment and granted summary judgment in favor of Golden Triangle. Consistent with these

actions, the trial court entered final judgment in favor of Golden Triangle, thus dismissing

Akins’s claims with prejudice. Aggrieved by the trial court’s judgment, Akins timely filed

this appeal.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    Golden Triangle is a nonprofit economic-development corporation headquartered in

Starkville. Golden Triangle serves the counties of Choctaw, Clay, Lowndes, Noxubee,

Oktibbeha, Webster, and Winston. One of the programs managed by Golden Triangle is the

HOME program, which is under the auspices of the Department of Housing and Urban

Development (HUD). The HOME program is aimed at providing affordable housing for rent

or ownership to low-income individuals. Within Golden Triangle’s Community Enrichment

Division is the Housing Department, and, at all relevant times herein, Phyllis Tate (Tate) was

employed by Golden Triangle as a Housing Specialist within the Housing Department. Tate’s

duties included enrolling the seven participating counties in the HOME program; assisting

counties and municipalities in selecting eligible participants; advertising and soliciting bids

from third-party contractors to construct the houses; verifying that the most competitive

participants were awarded the bids; reviewing inspector reports certifying percentage of work

completed on houses; and submitting requests to the Mississippi Development Authority for

disbursement of money to counties and municipalities for payment to the contractors.

                                              2
¶3.   In general, the process began with Tate assisting the counties and municipalities in

applying for HOME funds. For those applications which were approved, the HOME funds

were allocated to the counties and municipalities. Tate worked with potential homeowners

to select house plans and general contractors. The future homeowners then contracted with

the builders, and these contracts ultimately had to be approved by Golden Triangle. When

building began, Tate received invoices from contractors and requested cash allotments from

the counties and municipalities, which, in turn, paid the invoices with HOME funds.1

¶4.   Eventually, Tate began a scheme in which she colluded with her daughter and her

daughter’s then-boyfriend, Jason Clark, to divert HOME funds by transferring profits from

the building projects to the checking account of a shell corporation, J-Max Construction

Company, purportedly owned by Clark. In reality, J-Max was created for the fraudulent

purpose of receiving the illegally diverted HOME funds. Tate convinced future homeowners

to contract with builders with whom she purportedly had been working. Tate then requested

cash allotments for J-Max Construction Company. The county or municipality receiving the

grant funds wrote checks to J-Max. Tate, Clark, or Tate’s daughter would withdraw the

necessary funds to pay the subcontractors. When building was complete, Tate incorporated




      1
        As can be presumed from this recitation of the facts, numerous contracts/documents
most likely exist to memorialize the duties and obligations of Golden Triangle in its
relationship with HUD and the duties and obligations of the general contractors in their
relationships with Golden Triangle and the individual homeowners; however, none of these
documents appear in the appellate record before us in this case.

                                            3
into the withdrawals the profits which should have been paid to the general contractor who

actually had performed the work.

¶5.    Akins was one of the general contractors who built homes under the HOME program

administered by Golden Triangle. Akins was paid a total of $820,000 with HOME funds

for various construction projects. Akins contracted with prospective homeowners to construct

their residences. Golden Triangle approved these contracts. Akins requested periodic

payments and a final payment upon completion. At Golden Triangle’s request, Akins was

paid for his services.

¶6.    In August 2005, Golden Triangle suspected that Tate and/or Akins was involved in

fraudulent activity after learning that Akins was charging building supplies to an account

opened by Tate on behalf of a county at an area building supply warehouse, thereby avoiding

sales tax on the building supplies. A forensic certified public accountant, hired by Golden

Triangle, investigated and determined that Tate was embezzling HOME funds.

¶7.    Upon receiving this information from the forensic CPA, Golden Triangle reported

Tate’s actions to the local district attorney, the Mississippi State Auditor, and the Mississippi

Development Authority. In due course, the Federal Bureau of Investigation conducted its

own investigation, ultimately resulting in a forty-seven-count federal grand jury indictment

being handed down in the United States District Court for the Northern District of

Mississippi. Some of the overt acts asserted by the government in this indictment were as

follows:




                                               4
       3. PHYLLIS TATE created fraudulent requests for cash purportedly for J-
       Max Construction Company, a company supposedly building low income
       housing in Weir, Webster County, Choctaw County, Eupora, Winston County,
       Oktibbeha County, Macon, and Noxubee County, Mississippi.

       4. J-Max Construction Company received funds for low income housing it did
       not build, but funds provided by the Housing and Urban Development
       Administration were nevertheless paid as a result of the fraudulent requests for
       cash.

       5. J-Max Construction was purportedly a construction company operated by
       JASON CLARK, KEINA TATE’S then-boyfriend. The company and its
       checking account were created for no reason other than to funnel money
       designated to build low income housing into the pockets of JOSH BROWN,
       JASON CLARK, KEINA TATE, and PHYLLIS TATE.

       6. KEINA TATE and JASON CLARK were the only individuals with
       signatory authority for J-Max Construction’s checking account, and once the
       funds from the town, city, or county were deposited into the account either
       KEINA TATE or JASON CLARK would withdraw a portion of those funds
       and transfer them to PHYLLIS TATE either by paying her cash or transferring
       it to one of PHYLLIS TATE’S personal accounts, including, but not limited
       to, PHYLLIS TATE’S Curry Club account, a non-business account in Phyllis
       Tate’s maiden name. KEINA TATE and JASON CLARK also retained a
       portion of the funds deposited into the J-Max Construction account.

       7. At times pursuant to the dictates of the program, cash may not be
       distributed without an inspector providing information related to the progress
       of the construction. To make certain the fraudulent cash requests were
       honored, JOSH BROWN would provide fraudulent building inspection
       statements, stating that he had inspected the particular homes when he had not
       done so. On more than one occasion JOSH BROWN provided statements that
       construction of particular homes had progressed to a stage that would allow
       additional disbursements when in fact the structure was not yet started. JOSH
       BROWN received payment from the funding at issue for each fraudulent
       statement he provided.2


       2
        Eventually, Tate pleaded guilty in the United States District Court for the Northern
District of Mississippi, Chief Judge Michael P. Mills presiding. Pursuant to a plea
agreement, Tate pleaded guilty to Count 47 of the indictment, which asserted, inter alia, that

                                              5
¶8.    On December 12, 2006, Akins filed suit against Golden Triangle in the Circuit Court

of Oktibbeha County. In his complaint Akins alleged that the amount of $80,628 was

embezzled by Tate, but actually owed to him for his services, and that Golden Triangle was

vicariously liable under the doctrine of respondeat superior.3 Akins alleged that payments

made to J-Max were for construction that he completed.

¶9.    In due course, both Akins and Golden Triangle filed motions for summary judgment.

The Circuit Court of Oktibbeha County, Judge Lee J. Howard presiding, denied Akins’s

motion for summary judgment and granted Golden Triangle’s motion for summary judgment

on the grounds that Tate was acting outside the scope of her duties in stealing government

money and that Golden Triangle did not receive any benefit from Tate’s illegal actions.

From the trial court judgment entered in favor of Golden Triangle, Akins appeals to us.

                                       DISCUSSION

¶10.   Akins presents to us the single issue of whether the circuit court erroneously granted

Golden Triangle’s motion for summary judgment.




Tate had conspired with Brown, Clark and Keina Tate to illegally convert federal funds for
“the use of persons other than the rightful owner.” From the record before us, we are unable
to decipher what sentence was ultimately imposed upon Tate by Judge Mills.
       3
        Notwithstanding the dissent’s discussion, we have focused our discussion on the
issue as couched in the parties’ appellate briefs, that being whether damages are recoverable
in today’s case on the theory of respondeat superior. Mississippi Rule of Appellate
Procedure 28(a)(6) states that “[t]he argument [in the brief] shall contain the contentions of
appellant with respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.”

                                              6
¶11.   A motion for summary judgment shall be granted “if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Miss. R. Civ. P. 56(c). A grant of summary judgment is

reviewed by this Court under the de novo standard. Weathers v. Metropolitan Life Ins. Co.,

14 So. 3d 688, 691 (Miss. 2009) (quoting Bullard v. Guardian Life Ins. Co. of Am., 941 So.

2d 812, 814 (Miss. 2006)).

       The court views the evidence in the light most favorable to the nonmoving
       party. Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 817 (Miss.
       2006). “The moving party bears the burden of demonstrating there is no
       genuine issue of material fact.” Id. This Court also has held that “[w]here there
       is doubt whether a fact issue exists, the non-moving party is the beneficiary of
       that doubt.” Allen v. Mac Tools, Inc., 671 So. 2d 636, 640 (Miss.1996).

Weathers, 14 So. 3d at 691.

¶12.   Akins maintains that Golden Triangle is liable because the embezzlement was

committed in the scope of Tate’s employment. Golden Triangle argues that the acts

committed by Tate were committed in furtherance of her own personal gain and not for the

benefit of Golden Triangle or in the scope of her employment.

¶13.   The trial court relied on the test4 in Commercial Bank v. Hearn, 923 So. 2d 202

(Miss. 2006), for determining whether an employee was acting within the scope of




       4
       The trial court opinion referred to a “three prong” test from Hearn, and erroneously
omitted the fourth prong when citing to Hearn.

                                              7
employment. In Hearn, this Court defined an employee’s conduct as being in the scope of

employment if:

       (a) it is of the kind he is employed to perform;
       (b) it occurs substantially within the authorized time and space limits;
       (c) it is actuated, at least in part, by a purpose to serve the master, and
       (d) if force is intentionally used by the servant against another, the use of force
           is not unexpectable by the master.

Id. at 208 (citing Marter v. Scott, 514 So. 2d 1240, 1242-43 (Miss. 1987); Restatement

(Second) of Agency § 228 (1958)). “Conduct of a servant is not within the scope of

employment if it is different in kind from that authorized, far beyond the authorized time or

space limits, or too little actuated by a purpose to serve the master.” Id.

¶14.   The trial court found that Tate was employed for the purpose of transferring money

from government entities into the accounts of builders. The trial court did not believe this

scope of employment included stealing government money and routing it into her own

personal account. Thus, according to the trial court, Tate’s conduct satisfied only one prong

of the Hearn test, inasmuch as the illegal acts occurred during the time she was working at

Golden Triangle; however, Golden Triangle received no benefit from Tate’s actions.

¶15.   The facts in Hearn are as follows: A bank employee was involved in an automobile

accident that resulted in the injury of another driver and the death of an infant passenger. Id.

at 203. The accident occurred during the employee’s work hours while the employee was

soliciting pledges for a United Way Campaign. The injured parties filed suit against both the

employee and the bank based on the theory of respondeat superior. Id. at 204. This Court

found that soliciting pledges was neither an act within the scope of employment nor an act

                                               8
conducted in furtherance of any benefit to the bank; thus, the trial court’s judgment denying

Commercial Bank’s motion for summary judgment was reversed and rendered. Id. at 208-

210.

¶16.   The second case the trial court cited was Berhow v. The People’s Bank, 423 F. Supp.

562 (S.D. Miss. 2006). In Berhow, a loan officer fraudulently used bank customers’

information to create fictitious loans and obtain funds for himself. One of the customers filed

suit against the bank arguing that the bank was vicariously liable for its officer’s actions.

The trial court rejected this argument on the basis that the employee’s fraud was for his own

gain and of no benefit to the bank and that stealing funds from the bank was not within the

scope of his employment. Id. at 575.

¶17.   Akins argues that both of these cases concern employees involved in “an entirely

personal act” and that such is not the case here. Akins alleges that Tate was acting within the

scope of her duties in approving the disbursement of monies and building homes. Moreover,

Akins alleges that Tate diverted Akins’s money to the J-Max account, paid subcontractors,

and then kept Akins’s profits for herself and her co-conspirators. Thus, according to Akins,

Tate was still ensuring that the homes were built, which acts, at least in part, served the

master.

¶18.   Akins compares the facts of the present case with the facts in Billups Petroleum v.

Hardin’s Bakeries Corp., 217 Miss. 24, 63 So. 2d 543 (1953), wherein a salesman was

overcharging Billups for bread and keeping the difference for himself. Hardin’s was found

liable for its employee’s theft. Id. at 548. Akins further cites Napp v. Liberty National Life

                                              9
Insurance Co., 248 Miss. 320, 159 So. 2d 164 (1963), wherein an insurance agent pocketed

half of a beneficiary’s dividends under a $1,000 life insurance policy with a double-

indemnity clause in the event of accidental death. Id. at 164. The decedent had died in an

automobile accident, and the decedent’s widow was the beneficiary. Id. The insurance agent

convinced the beneficiary that the policy had lapsed but that the company would pay her

$1,000 under the policy. Id. at 165. When the agent presented her with a $2,000 check from

the life insurance company, he persuaded her that this was an oversight and that she would

be required to deposit $1,000 in her account, but give $1,000 dollars in cash back to the

agent. Id. The company was held liable for the difference. Id. at 166.

¶19.   Golden Triangle contends that Akins’s reliance on both Billups and Napp is

misplaced, as these decisions have been eroded by more recent Mississippi Supreme Court

decisions which have demonstrated a “marked shift away from expansive employer vicarious

liability.” Golden Triangle cites Gulledge v. Shaw, 880 So. 2d 288 (Miss. 2004), for the

premise that when “a servant, having completed his duty to his master, then proceeds to

prosecute some private purpose of his own, the master is not liable . . . .” Id. at 295. Golden

Triangle further argues that Akins has failed to prove that he is owed any of the funds

diverted by Tate to J-Max, and in turn, to herself and her co-conspirators. Alternatively,

Golden Triangle maintains that, even if the facts averred by Akins are true, Golden Triangle

still is entitled to judgment as a matter of law because Tate acted outside her duties for her

own gain to the detriment – not the benefit – of her employer/master, Golden Triangle.



                                              10
¶20.   From the record before us, we find that the trial court did not err in granting Golden

Triangle’s motion for summary judgment, notwithstanding that genuine issues of fact exist,

because Akins’s claims fail as a matter of law. The trial court was correct in finding that

Tate’s misdeeds were for her own personal gain and were of no benefit to Golden Triangle.

She took government money and funneled it into the J-Max account. Later, this money was

put into Tate’s personal account. Even if this money was earmarked for Akins, as a matter

of law, Akins cannot be granted relief under a theory of respondeat superior. Given that

Akins contracted with the homeowners themselves, and there exists no privity of contract

between the parties, Akins is not entitled to relief from Golden Triangle.

                                       CONCLUSION

¶21.   As a matter of law, Akins was not entitled to recover any funds from Golden Triangle,

given that Golden Triangle’s employee, Tate, embezzled money for her own personal gain

and did not serve to mutually benefit Golden Triangle. Rather, such actions were to the

detriment of Golden Triangle. For all the reasons stated, the trial court did not err in granting

Golden Triangle’s motion for summary judgment; therefore, the Oktibbeha County Circuit

Court’s final judgment entered in favor of Golden Triangle Planning & Development

District, Inc., dismissing with prejudice all claims of Walter Akins d/b/a Akins Construction

Company, is affirmed.

¶22.   AFFIRMED.

    WALLER, C.J., GRAVES, P.J., KITCHENS AND PIERCE, JJ., CONCUR.
RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, LAMAR AND CHANDLER, JJ.

                                               11
       RANDOLPH, JUSTICE, DISSENTING:

¶23.   As no employee’s duty involves stealing, the Majority, like the circuit court, properly

concludes that Tate’s fraudulent conduct was not “within the scope of employment,” as her

“misdeeds were for her own personal gain and were of no benefit to Golden Triangle.” (Maj.

Op. at ¶ 21). Unfortunately, the vicarious-liability analysis of both the Majority and the

circuit court is limited to the respondeat superior standard outlined in Section 228 of the

Restatement (Second) of Agency. In cases involving employee negligence or wrongful

conduct, like those relied upon by the Majority,5 such an analysis is quite appropriate.

However, “[s]cope of employment does not define the only basis for employer liability under

agency principles. In limited circumstances, agency principles impose liability on employers

even where employees commit torts outside the scope of employment. The principles are set

forth in the much-cited § 219(2) of the Restatement . . . .” Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 758, 118 S. Ct. 2257, 2267, 141 L. Ed. 2d 633 (1998). See also Jones v. B.L.

Dev. Corp., 940 So. 2d 961, 967 (Miss. Ct. App. 2006) (citation omitted) (“[a] master is

subject to liability for the torts of his servant committed outside the scope of employment if

the servant was aided in accomplishing the tort by the existence of the agency relation.”);




       5
        See Commercial Bank v. Hearn, 923 So. 2d 202 (Miss. 2006); Gulledge v. Shaw,
880 So. 2d 288 (Miss. 2004). See also Seedkem South, Inc. v. Lee, 391 So. 2d 990, 994-95
(Miss. 1980) (a negligent-conduct case in which an employee’s “nine hour beer drinking
spree” was deemed a “frolic” outside the scope of his employment, such that Seedkem South
could not be held liable under respondeat superior).

                                              12
Faragher v. City of Boca Raton, 524 U.S. 775, 801-02, 118 S. Ct. 2275, 141 L. Ed. 2d 662

(1998).

¶24.   In employee theft/dishonesty/fraud cases, such a different analysis is required. See

Napp v. Liberty Nat’l Life Ins. Co., 248 Miss. 320, 159 So. 2d 164 (1963); Billups

Petroleum Co. v. Hardin’s Bakeries Corp., 217 Miss. 24, 63 So. 2d 543 (1953). In cases

of this genre, the standards outlined in Sections 219(2)(d) and 261 of the Restatement

(Second) of Agency apply. Considering those Restatement sections, in the context of the

record presented, I conclude that genuine issues of material fact exist regarding whether Tate

was “aided in accomplishing the tort by existence of the agency relation” such that Golden

Triangle could be held vicariously liable for Tate’s fraudulent conduct.         Restatement

(Second) of Agency § 219(2)(d) (1958). As such, the circuit court erred in granting Golden

Triangle’s motion for summary judgment.

¶25.   According to Akins’s complaint, “Tate was acting as an employee and agent of

Golden Triangle and therefore, Golden Triangle is liable for the actions of [Tate] in

wrongfully directing . . . monies be paid to J-Max Construction.” (Emphasis added.) No

reference to respondeat superior is made. Golden Triangle later summarized Akins’s cause

of action in its “Memorandum of Authorities in Support of Defendant’s Motion for Summary

Judgment,” when it stated that “Akins’[s] sole theory of recovery against Golden Triangle

is that Tate was employed by Golden Triangle when the funds were allegedly directed, and

that Golden Triangle is therefore liable for the actions of Tate.”        (Emphasis added.)

However, Golden Triangle then proceeded to conflate distinctive theories of vicarious

                                             13
liability when it added “[i]n other words, Akins seeks to hold Golden Triangle vicariously

liable under the doctrine of respondeat superior.” In so doing, Golden Triangle effectively

submersed the broader principle of vicarious liability to restrict its application to only one

of its bases, respondeat superior.6

¶26.   The circuit court and the Majority endorsed this restrictive application in their

holdings, i.e., whether Tate’s fraudulent conduct was “within the scope of employment,”

pursuant to the respondeat superior standard set forth in Section 228 of the Restatement

(Second) of Agency. The Majority fails to address Sections 219(2)(d) and 261 of the

Restatement (Second) of Agency, which control the case before us. See Restatement

(Second) of Agency §§ 219(2)(d), 261 (1958).

¶27.   Section 219(2) of the Restatement (Second) of Agency lists four situations in which

conduct “outside the scope of . . . employment” provides a basis for imposing vicarious

liability. Restatement (Second) of Agency § 219(2). According to Section 219(2)(d):

       (2) A master is not subject to liability for the torts of his servants acting outside
       the scope of their employment, unless:


       6
        Akins incorrectly accepted this restriction and offered only the respondeat superior,
Section 228 of the Restatement (Second) of Agency, argument, although he also raised the
seminal cases that are dispositive of the issue before this Court. This Court cannot overlook
that among the authorities cited by Akins in his “Memorandum of Authorities in Support of
Plaintiff’s Motion for Summary Judgment” and Appellant’s Brief are employee
theft/dishonesty/fraud genre cases, Billups Petroleum and Napp, which are directly on point
with the issue before this Court. See Napp, 159 So. 2d at 164; Billups Petroleum, 63 So.
2d at 543. Billups Petroleum and Napp do not rely on a Section 228 analysis, but implicitly
rely upon the analysis set forth in Sections 219(2)(d) and 261 of the Restatement (Second)
of Agency, as discussed supra. See Entente Mineral Co. v. Parker, 956 F.2d 524, 527 (5th
Cir. 1992).

                                                14
       ...

       (d) the servant purported to act or to speak on behalf of the principal and there
       was reliance upon apparent authority, or he was aided in accomplishing the
       tort by the existence of the agency relation.

Id. at § 219(2)(d) (emphasis added). “The first clause establishes an employer’s vicarious

liability for the torts of employees based on the doctrine of ‘apparent authority,’ while the

second creates liability for an employer whose agent ‘was aided in accomplishing the tort by

the existence of the agency relation.’” 7 Doe v. Forrest, 853 A.2d 48, 56 (Vt. 2004) (quoting

Restatement (Second) of Agency § 219(2)(d)). “The commentary to the Restatement

provides, by way of examples, that a telegraph company may be held liable for a tort

committed by a telegraph operator who sends a false telegraph message, as may the

undisclosed principal of a store whose manager cheats a customer.” LaRoche v. Denny’s,




       7
           In Faragher:

       [t]he City . . . argue[d] that the second qualification of the subsection, referring
       to a servant “aided in accomplishing the tort by the existence of the agency
       relation,” merely “refines” the one preceding it, which holds the employer
       vicariously liable for its servant’s abuse of apparent authority . . . . But this
       narrow reading is untenable; it would render the second qualification of §
       219(2)(d) almost entirely superfluous (and would seem to ask us to shut our
       eyes to the potential effects of supervisory authority, even when not explicitly
       invoked). The illustrations accompanying this subsection make clear that it
       covers not only cases involving the abuse of apparent authority, but also cases
       in which tortious conduct is made possible or facilitated by the existence of
       the actual agency relationship.

Faragher, 524 U.S. at 801-02. See also Ellerth, 524 U.S. at 759-60 (distinguishing the two
theories outlined in Section 219(2)(d)).

                                               15
Inc., 62 F. Supp. 2d 1366, 1373 (S.D. Fla. 1999) (citing Restatement (Second) of Agency §

219 cmt. (e)).

¶28.   Section 261 of the Restatement (Second) of Agency provides that “[a] principal who

puts a servant or other agent in a position which enables the agent, while apparently acting

within his authority, to commit a fraud upon third persons is subject to liability to such third

persons for the fraud.” Restatement (Second) of Agency § 261. Comment (a) to Section 261

adds that:

       [t]he principal is subject to liability under the rule stated in this Section
       although he is entirely innocent, has received no benefit from the transaction,
       and, as stated in Section 262, although the agent acted solely for his own
       purposes. Liability is based upon the fact that the agent’s position facilitates
       the consummation of the fraud, in that from the point of view of the third
       person the transaction seems regular on its face and the agent appears to be
       acting in the ordinary course of the business confided to him.

Restatement (Second) of Agency § 261 cmt. (a) (1958) (emphasis added). See also Entente

Mineral, 956 F.2d at 527 (“[u]nlike § 228, § 261 assesses vicarious liability even though the

agent’s conduct was not actuated by a purpose to serve the principal.”).8

¶29.   In Entente Mineral, the Fifth Circuit noted that:

       [a]lthough Mississippi case law has not expressly differentiated between the
       two types of vicarious liability found in § 219(1) and § 219(2) of the


       8
        The doctrines of respondeat superior and apparent authority do overlap, but not
perfectly. See Charles Davant IV, Employer Liability for Employee Fraud: Apparent
Authority or Respondeat Superior?, 47 S.D. L. Rev. 554, 566, 568-69 (2002); Grease
Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo. 1995) (citation omitted)
(“[a]pparent authority liability is not based upon the rules of respondeat superior, and it is
not ‘essential to find that the agent was motivated by an intent to act for his master’s
purposes.’”).

                                              16
       Restatement, the distinction is implicit. Hence, cases imposing liability under
       the theory embraced by § 219(1) and defined in § 228, require the agent’s
       conduct to be for the principal’s purposes; while other cases, under the theory
       embodied in §§ 219(2)(d) and 261, allow liability even when an agent acts
       solely for his own purposes. Compare [Seedkem South 9 ] with [Billups
       Petroleum] and [Napp].

Entente Mineral, 956 F.2d at 527.

¶30.   In Billups Petroleum, this Court stated that:

       “[i]t is well settled that the principal is liable for the frauds and
       misrepresentations of his agent within the scope of the authority or
       employment of the agent, even though he had no knowledge thereof and has
       received no benefit therefrom. . . .” 2 Am. Jur. p. 281, Agency, § 362. “The
       principal is liable to third persons for injuries resulting from the fraud and
       deceit of his agent if such is within the scope of the agent’s authority. Acts of
       fraud by the agent, committed in the course or scope of his employment, are
       binding on the principal, even though the principal did not know of or
       authorize the commission of the fraudulent acts, and although he derives no
       benefit from the success of the fraud, and the agent committed it for his own
       benefit.” 3 C.J.S., Agency, § 257, p. 190.

Billups Petroleum, 63 So. 2d at 546 (emphasis added). In holding Hardin’s Bakeries

vicariously liable for its agent’s fraud, this Court determined that “the fraud was committed

by the agent . . . while acting within the scope of his employment, and in our opinion the loss

should fall on the principal who is liable for the act of the agent, and not upon the customer

who has been defrauded.” Id. at 547-48.

¶31.   The four cases discussed and relied upon by this Court in Billups Petroleum were:

Birkett v. Postal Telegraph-Cable Company, 107 A.D. 115, 94 N.Y.S. 918 (N.Y.A.D. 4

Dept. 1905); Wilmerding v. Postal Telegraph-Cable Company, 118 A.D. 685, 103 N.Y.S.


       9
           See footnote 5, supra.

                                              17
594 (N.Y.A.D. 1 Dept. 1907); Cleaney v. Parker, 167 Ala. 134, 51 So. 951 (1910); and

Berkovitz v. Morton-Gregson Company, 112 Neb. 154, 198 N.W. 868 (1924). In Birkett,

an agent of Postal Telegraph:

      padded the statements of a customer and over a period of years collected a
      large sum in excess of the true amount due. . . . The agent . . . retained the
      balance that he had wrongfully collected from the customer. . . . The court
      held that the agent was acting within the scope of his agency in receiving the
      money for the benefit of the defendant, and that the defendant was liable for
      the fraud perpetrated by its agent.

Billups Petroleum, 63 So. 2d at 547 (citing Birkett, 94 N.Y.S. at 919-20). In Wilmerding:

      the Court held that the plaintiff had a right to assume that the agents of the
      telegraph company admittedly employed by it and clothed with the power to
      collect money on the presentation of slips, were honest, and that the slips
      presented by them were genuine, and that where the defendant’s messenger
      had forged slips and presented them to the plaintiff’s cashier who paid them[,]
      the company was liable. The Court in that case said: “[a]n employer who has
      put it within the power of his employe[e] to defraud a third person by
      intermingling fraudulent and genuine bills and collecting money therefrom
      should be held responsible to an innocent third party for the dishonesty of his
      employe[e].”

Billups Petroleum, 63 So. 2d at 547 (quoting Wilmerding, 103 N.Y.S. at 597). In Cleaney,

the employer of a newspaper agency was held liable for money extorted from a customer in

excess of the price of the articles purchased. See Cleaney, 51 So. at 952. The Alabama

Supreme Court:

      stated that while the agent may have exceeded, and probably did exceed his
      authority, and violated the instructions of his principal when he collected the
      extra money from the customer, “yet it was clearly within the line and scope
      of his authority in such manner as to render the defendants liable to plaintiff
      for such tort of the agent; while it was the tort of the agent, as between him and
      his principals, it was the tort of both, as between them and the plaintiff.”


                                             18
Billups Petroleum, 63 So. 2d at 546 (quoting Cleaney, 51 So. at 952) (emphasis added). In

Berkovitz, a salesman for Morton-Gregson Company obtained merchandise orders from

Berkovitz.    See Berkovitz, 198 N.W. at 868.          Without Morton-Gregson Company’s

knowledge or authorization, the salesman began altering Berkovitz’s account statements to

show larger amounts than were actually due. See id. at 869. Such amounts were then

collected by the salesman from Berkovitz. See id. Thereafter:

       [i]n an action by Berkovitz against Morton-Gregson Company to recover the
       amount of the excess collections so made, the [Nebraska Supreme] Court held
       that [the salesman], in presenting the altered statements of account, was acting
       in the line of his employment and within the apparent scope of his authority,
       and that Morton-Gregson Company was liable to Berkovitz for his loss,
       occasioned by the fraud of [the salesman].

Billups Petroleum, 63 So. 2d at 547 (citing Berkovitz, 198 N.W. at 868).

¶32.   In Napp, this Court considered the argument of the defendant-life insurance company

“that the agent, if he was an agent, was acting without the scope of his authority real or

apparent, and that the company could not foresee that the agent would commit an act of this

sort.”10 Napp, 159 So. 2d at 166. This Court, relying upon Billups Petroleum and the cases

cited therein, disagreed and found that the “foreseeability of such an act” is not the applicable

test. Id. Rather, in reversing and remanding for a new trial, this Court held that “the agent




       10
         The subject action was that the agent was to deliver a $2,000 check from the
defendant-life insurance company to Napp, but instead the agent made misrepresentations
resulting in only $1,000 being received by Napp, with the agent receiving the remaining
$1,000. See Napp, 159 So. 2d at 165-66.

                                               19
paid less than he was supposed to pay. If the appellant’s testimony be accepted as true, then

the company has not paid its debt.” Id. (emphasis added).

¶33.   Subsequently, the Fifth Circuit addressed Billups Petroleum and aptly stated that:

       [c]ontrary to some of the language in the . . . case, the principal’s liability is
       based on the theory embodied in §§ 219(2)(d) and 261 of the Restatement,
       rather than traditional “scope of employment” liability contained in § 219(1).
       The four cases the Billups [Petroleum] court discusses in support of its
       holding evidence that the court imposed § 219(2)(d) liability. Each of the four
       cases involves fraud by an agent upon the principal’s customer. Each case
       involved a situation in which the principal delegated to the agent the power to
       perform a certain task, such as collect monies for the principal. In each case,
       the agent acted for his own purposes, but the fraud transpired as part of the
       very duty that the principal authorized the agent to perform. Because the
       customers had a relationship with the principal that induced the customers to
       rely on the principal’s agent, and the agent defrauded the customers in the
       performance of the duty entrusted to him by the principal, the agent was
       “aided in accomplishing the tort by the existence of the agency relation.”

Entente Mineral, 956 F.2d at 529 (quoting Restatement (Second) of Agency § 219(2)(d))

(emphasis added). In sum:

       [t]he proper inquiry for determining vicarious liability of a principal whose
       agent defrauds the principal’s customer is the relationship between the
       principal and the customer. In Billups [Petroleum], the four cases it
       discusses, and Napp, the principal had a relationship with the customer and the
       customer was defrauded by the principal’s agent. The courts reasoned that a
       principal who provides his agent with the tools or position necessary to
       perpetrate a fraud on the principal’s customers, should be held responsible to
       the innocent customers who relied on the agent.

Entente Mineral, 956 F.2d at 529 (emphasis added). See also Jones, 940 So. 2d at 967;

Hardwicke v. American Boychoir School, 902 A.2d 900, 920 (N.J. 2006); Doe, 853 A.2d

at 57; Forum Fin. Group v. President and Fellows of Harvard Coll., 173 F. Supp. 2d 72,

101 (D. Maine 2001).

                                              20
¶34.   Golden Triangle acknowledges that it administered the HOME program. Golden

Triangle then delegated to Tate, as housing specialist for the HOME program, the power to

perform the following tasks, inter alia: advertising and soliciting bids from third-party

contractors to construct homes; receiving invoices from contractors; reviewing inspector

reports certifying the percentage of work completed on individual homes; and requesting

cash allotments from counties and municipalities, which were paid with HOME funds.11

¶35.   In the course of performing her tasks, which she was authorized by Golden Triangle

to perform, Tate “acted for [her] own purposes . . . .” Id. While this “was the tort of the

agent, as between him and his principals,” there is also a genuine issue of material fact as to

whether it “was the tort of both, as between them and the plaintiff.” Cleaney, 51 So. at 952.

If Akins can prove that he “had a relationship with [Golden Triangle] that induced [him] to

rely on [Golden Triangle’s] agent, [Tate,] and [Tate] defrauded [Akins] in the performance

of the duty entrusted to [her] by [Golden Triangle],” Entente Mineral, 956 F.2d at 529, I

conclude that genuine issues of material fact exist regarding whether Tate was “aided in

accomplishing the tort by the existence of the agency relation.” Restatement (Second) of

Agency § 219(2)(d) (1958). As such, the trial court erred in granting Golden Triangle’s

motion for summary judgment. Therefore, I respectfully dissent.

       DICKINSON, LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.




       11
       According to Count 47 of the indictment against Tate, to which she pleaded guilty,
the HOME funds “were in the care, custody, and control of” Golden Triangle.

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