                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2003-CA-02773-SCT

BRENDA SAVORY

v.

FIRST UNION NATIONAL BANK OF DELAWARE


DATE OF JUDGMENT:                         10/15/2002
TRIAL JUDGE:                              HON. MARGARET CAREY-MCCRAY
COURT FROM WHICH APPEALED:                LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  FRANK THACKSTON, JR.
                                          C. W. WALKER, III.
ATTORNEYS FOR APPELLEE:                   H. MITCHELL COWAN
                                          VIKKI J. TAYLOR
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND REMANDED - 03/01/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This case comes to this Court on appeal from the Circuit Court of Leflore County by

the plaintiff, Brenda Savory. Savory claims that she was defrauded by First Union National

Bank of Delaware (hereinafter “First Union”) and mortgage brokers John Emory and Joni

Goss, doing business as Mississippi Mortgage Corporation (“Mississippi Mortgage”),while

she was obtaining a loan with First Union. Specifically, the alleged fraud involves the

falsification of documents, which Savory argues exaggerated her net worth and bolstered her

credit worthiness. On appeal, Savory asserts that First Union was either actively involved

in this fraudulent scheme, should have detected the fraud, or that the actions of Emory and
Mississippi Mortgage should have been imputed to First Union because they were agents of

First Union.

¶2.    We hold that the trial court erred in giving Jury Instructions 26 and 30, as they likely

confused and misled the jury as to the correct principle of law. Accordingly, we reverse and

remand.

                                           FACTS

¶3.    In 2000, Savory contacted Orin Parrish, to inquire about a house that was listed for

sale. Parrish told Savory that the selling price of the house would not be less than $40,000.

Savory subsequently contacted Emory, a loan officer with Wholesale Mortgage, about

financing options for the house. Emory took Savory’s loan application over the phone and

entered information that she provided on a standard Housing and Urban Development (HUD)

Form 1003. He also obtained employment and rent verifications, verification of Savory’s

deposit account and assets, a borrower’s authorization and an appraisal of the property to be

financed. These documents were submitted to Equicredit, one of Wholesale Mortgage’s

lending sources. After Equicredit notified Emory that Savory’s application had been denied,

he transferred her loan application packet to Joni Goss with Mississippi Mortgage.

¶4.     At all times relevant to Savory’s Complaint, Mississippi Mortgage had applied to be

but had not yet been placed on First Union’s list of approved brokers. Darrell Carroll, who

was the Underwriting Manager for First Union’s Broker Division at the time of the events

in question, testified that Mississippi Mortgage was allowed to submit Savory’s loan

application packet on a trial basis while approval of the Broker Agreement between First

Union and Mississippi Mortgage was being considered. Carroll testified that, based on


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representations that the selling price of the house was $53,000 and that Savory would be

paying a required ten percent down payment of $9,658, First Union approved Savory’s

application. First Union loaned $47,7000 on property that actually cost $40,000. On

October 6, 2000, the closing on the loan was held at Bobby Fisher, Jr.’s law office. Savory

received a cash payment of $1,350 at the loan closing, which is not reflected on the

Settlement Statement or other signed loan documents provided to First Union. Savory moved

in to the house in November of 2000 but never made any of the scheduled $470.55 monthly

mortgage payments to First Union.

¶5.    On March 2, 2001, Savory filed a complaint against First Union, Emory; Mississippi

Mortgage; Bobby Fisher, Jr.; Fisher Law Offices and other defendants, charging them with

negligence, misrepresentation, fraud, breach of contract and various other claims. On

October 3, 2002, a Leflore County jury found that First Union was not liable to Savory.

However, the jury awarded Savory $30,000 in actual damages and $20,000 in punitive

damages as a result of the fraud by Emory and Mississippi Mortgage. On November 1, 2002,

the Circuit Court entered final judgment on the jury’s verdict. Savory’s motion for a directed

verdict against First Union on the issue of liability was denied. Aggrieved by this decision,

Savory asserts seven issues on appeal.

       I.     Whether the Lower Court Erred in Refusing to Rule First Union
              Was Liable to Brenda Savory as a Matter of Law for its Admitted
              Preparation of an Admitted Fraudulent Loan Document
              Applicable to Brenda Savory’s Loan from First Union.

       II.    Whether the Lower Court Erred in Refusing to Rule That
              Mississippi Mortgage Was First Union’s Agent as a Matter of
              Undisputed Fact and Law.



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       III.     Whether the Lower Court Erred in Refusing to Rule That
                Mississippi Mortgage Acted Within the Scope of its Employment
                as Agent for First Union as a Matter of Undisputed Fact and Law.

       IV.      Whether the Lower Court Erred in Allowing the Jury to Decide
                Whether Emory/Mississippi Mortgage Acted as an “Independent
                Contractor” or “Agent.”

       V.       Whether the Lower Court Erred in Excluding from Evidence the
                Broker’s Agreement, Which Both Parties Testified Was Applicable
                to Savory’s Loan from First Union.

       VI.      Whether Jury Instructions 26 and 30 Were Accurate Statements of
                Law.

       VII.     Whether the Lower Court Erred in Denying Savory’s Motion for
                J.N.O.V.

As the determination of Issues IV and VI control the outcome of this appeal, we address only

those issues.

                               STANDARD OF REVIEW

¶6.     This Court will not set aside a jury verdict unless it is against the overwhelming

weight of the evidence and credibility testimony. SW. Miss. Reg’l Med. Ctr. v. Lawrence,

et al., 684 So. 2d 1257, 1267 (Miss. 1996). This Court reviews jury instructions as a whole.

Splain v. Hines, 609 So. 2d 1234, 1239 (Miss. 1992). Defects in particular instructions do

not require reversal when the instructions, taken as a whole, fairly express the primary rules

of law. Id.

                                       DISCUSSION

       I.       Whether the Lower Court Erred in Allowing the Jury to Decide
                Whether Emory/Mississippi Mortgage Acted as an “Independent
                Contractor” or “Agent.”




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¶7.    Savory asserts that the fraud committed by the mortgage brokers was at First Union’s

express direction because the brokers were controlled by First Union. Savory submits that

the trial court should have instructed the jury that First Union was vicariously liable for the

wrongful conduct of its agents; therefore the court erred in submitting to the jury the issue

of whether the mortgage brokers were agents or independent contractors. First Union

counters that the mortgage brokers were not agents of First Union. First Union argues that

the brokers were actually independent contractors or agents of Savory.

¶8.    This Court has held that a question of whether an agency relationship exists, or

whether a party is an independent contractor, is a question of fact to be resolved by the jury.

Kight v. Sheppard Bldg. Supply, Inc., 537 So. 2d 1355, 1358 (Miss. 1989).                 One legal

authority states “when the facts pertaining to the existence or non-existence of an agency are

conflicting, or conflicting inferences may be drawn from the evidence, the question presented

is one of fact for the jury, . . . and even though the evidence is not full or satisfactory, it is the

better practice to submit the question to the trier of fact .” 3 Am. Jur. 2d Agency § 372

(1986).

¶9.       In Elder v. Sears, Roebuck & Co., the Court held that, due to conflicting evidence

presented, the jury reasonably could have found that Sears exercised sufficient control over

its agent, that it should be vicariously liable for the negligence of its agent, and therefore, the

agency relationship was a question of fact for jury determination, and not one of law. Elder

v. Sears, Roebuck & Co., 516 So. 2d 231, 236 (Miss. 1987). At trial, First Union and Savory

presented conflicting evidence regarding whether Emory and Mississippi Mortgage were

agents or independent contractors. In support of its position that Emory and Mississippi

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Mortgage were independent contractors, First Union stated that Mississippi Mortgage

independently did the following: (1) selected their own business location; (2) hired and fired

their own employees and determined their salaries; (3) conducted their own advertising with

no reference to First Union; (4) solicited mortgage customers; (5) took loan applications in

their name; (6) managed the daily activities of their office; (7) purchased their own

equipment; (8) determined which lender to which the loan application would be submitted;

and (9) did not participate in the loan approval process. First Union also introduced

testimony showing that Emory followed this same practice. Conversely, Savory introduced

evidence that: (1) Mississippi Mortgage and First Union were parties to a contract when

Mississippi Mortgage arranged the loan with First Union; (2) First Union controlled the

procedures that Mississippi Mortgage was to follow in making Savory’s loan; (3) First Union

devised loan criteria that was binding on Mississippi Mortgage; (4) First Union required

Mississippi Mortgage to keep records relating to the borrowers’ loans that it submitted to

First Union.

¶10.   Due to the conflicting evidence introduced at trial by Savory and First Union relating

to the question of an agency relationship between the mortgage brokers and First Union, we

find that the trial court did not err in submitting this issue to the jury.   Furthermore, we

decline to address the sufficiency of the evidence supporting the jury’s finding of whether

Mississippi Mortgage and Emory were agents or independent contractors, as the resolution

of the next issue controls the outcome of this appeal.

       II.     Whether Jury Instructions 26 and 30 Were Accurate Statements of
               Law.



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¶11.   Savory argues that Jury Instructions No. 26 and 30 were incorrect statements of law.

However, First Union asserts that the jury was properly instructed as a whole. First Union

also argues that Savory has now waived her objections based on her failure to object to these

instructions at trial.

¶12.   Rule 3.07 of the Mississippi Uniform Circuit and County Court Rules requires

attorneys to “dictate into the record their specific objections to the requested instructions

stating the grounds for each objection.” Miss. URCCC Rule 3.07. Rule 51(b)(3) of the

Mississippi Rules of Civil Procedure requires that objections to jury instructions be stated

distinctly into the record before the instructions are presented to the jury. Miss. R. Civ. P.

51(b)(3). Further, this Court will not consider an alleged erroneous instruction on appeal

unless a contemporaneous objection was made at trial. Ducker v. Moore, 680 So. 2d 808,

810 (Miss. 1996).

¶13.   A thorough review of the trial record reveals that Savory objected to both instructions

in a jury instruction conference held out of the jury’s presence before the instructions were

given. Savory objected to Instruction No. 26 on grounds that the factors listed to determine

the independent contractor status were an abstract statement of law that was neither

applicable to the facts of the case nor clear to the jury. Additionally, Savory argued that the

jury could find that the defendants were not agents of First Union without finding that they

were independent contractors. Savory also objected to Instruction No. 30, arguing that

Emory and Mississippi Mortgage were agents as a matter of undisputed fact, and the

instruction was an inaccurate statement of law regarding agency.

       A.      Instruction No. 26

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¶14.   Savory claims that Instruction No. 26 is confusing and misleading. Instruction No.

26 in pertinent part states that “the court instructs you that First Union is not responsible for

the actions or conduct of Bobby F. Fisher, Jr., Fisher Law Offices [], John Emory,

Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real Estate Valuation

and Title Corporation if you determine that any of those parties were independent

contractors.” (Emphasis added). Instead of correctly directing the jury to consider the status

of each of these parties, the instruction directed the jury to consider all of the parties as one

group. Under the instruction given, the jury could exonerate First Union from the fraudulent

conduct of Emory or Mississippi Mortgage, if the jury found that Fisher or O’Bryant were

independent contractors but Mississippi Mortgage and Emory were not. Under the correct

standard of law, the jury’s finding that any one of these parties was an independent

contractor would not exonerate First Union from the wrongful conduct of any of the other

parties whom the jury believed to be agents of First Union. Therefore, this instruction as

written is misleading and conflicts with the applicable rule of law.

¶15.   The Court has held that “[i]t is the province of the court to instruct the jury on the law

applicable to the case, and it is the duty of the jury to act on the law as received by them from

the court.” Griffin v. Fletcher, 362 So. 2d 594, 595 (Miss.1978). Furthermore, “[i]t is error

for the court in any case to grant instructions which are likely to mislead or confuse the jury

as to the principles of law applicable to the facts in evidence." Id. at 596 (citing Moak v.

Black, 230 Miss. 337, 351, 92 So. 2d 845, 851 (1957)); Puckett Machinery Co. v. Edwards,

641 So. 2d 29, 34 (1994)(holding that it is reversible error to give instructions likely to




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mislead or confuse the jury as to the principles of law applicable to the facts in evidence).

       B.     Instruction No. 30

¶16.   The first paragraph of Instruction No. 30 states:

       If you find against Bobby F. Fisher, Fisher Law Offices [], John Emory,
       Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real
       Estate Valuation and Title Corporation on Brenda Savory’s claims and further
       find that that party was acting as an agent of First Union, you shall not return
       a verdict against First Union unless that party was acting within the scope and
       course of his employment as an agent.

This portion properly allows a judgment against First Union if the jury found one or more

of the parties to be acting within the scope of that party’s employment as an agent of First

Union. However, in the paragraph immediately following this sentence, the instruction

directs the jury that “if you find that Bobby F. Fisher, Jr., Fisher Law Offices [], John Emory,

Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real Estate Valuation

and Title Corporation each acted as agents of First Union, you shall not return a verdict

against First Union if you find that their actions were outside the scope of their employment

as agents.” (Emphasis added). Under this instruction, for the jury to return a verdict against

First Union, they had to find that each party acted as an agent of First Union. We find that

the language in the first and second part of the instruction conflicts, creating probable

confusion. Under the correct statement of law, if the jury found that any one of these parties

were acting within their scope of employment as agents of First Union, the fraudulent actions

of that agent could bind First Union. Clearly, Instruction No. 30 failed to instruct the jury

as to the applicable rule of law and was likely to cause confusion due to the use of conflicting

language within the instruction.



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¶17.   Because these two instructions were likely to mislead and confuse the jury as to the

correct principles of law applicable to the facts in evidence, we find that it was reversible

error to grant and give Instructions Nos. 26 and 30.

                                     CONCLUSION

¶18.   While we find no error by the trial court in submitting the question of agency to the

jury, we find that the trial court erred in giving Jury Instructions Nos. 26 and 30, as these

instructions were confusing and likely to mislead the jury as to the applicable statements of

law. Accordingly, the final judgment is reversed and remanded for a new trial.

¶19.   REVERSED AND REMANDED.

    WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION.




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