Maria Millan, Individually and as Trustee for James E. Millan v. Dean Witter Reynolds, Inc., and Miguel A. Millan--Appeal from 288th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-00-00608-CV
Maria MILLAN, Individually and as Trustee for James E. Millan,
Appellant
v.
DEAN WITTER REYNOLDS, INC.,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-08261
Honorable Phylis J. Speedlin, Judge Presiding

Opinion by: Catherine Stone, Justice

Dissenting opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: November 30, 2001

Because I do not believe the trial court erred in directing a verdict on the vicarious liability issue, I dissent. In my opinion, the trial court's judgment should be affirmed in all respects.

The facts relating to the actions Miguel took with reference to his mother's brokerage account are largely undisputed. The only issue is whether, as a matter of law, Dean Witter can be held vicariously liable for Miguel's fraudulent actions. Dean Witter can only be vicariously liable if Miguel's actions were taken in the course and scope of his employment with Dean Witter. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617-18 (Tex. 1999).

Miguel, in the course and scope of his employment for Dean Witter opened a brokerage account for his mother. As stated in the majority opinion, it was within Miguel's general authority to open such accounts for clients, receive deposits to these accounts, make purchases of securities as directed by clients, and sell them as directed. Miguel's activities, however, went far beyond these general brokerage duties. Miguel greatly exceeded the scope of his authority when, through a litany of deceitful acts, he stole money from his mother. Those acts include stealing checks from his mother's bathroom drawer, writing checks on his mother's account, depositing his mother's checks into his own account, forging his mother's signature on numerous occasions, stealing statements from his mother's mailbox, creating and sending bogus statements to his mother, and opening a post office box so he could receive his mother's actual statements. These acts were not related to Miguel's duties and were not within his general scope of authority as a broker for Dean Witter. Dean Witter cannot be held liable for Miguel's fraudulent actions and therefore, the trial court's judgment should be affirmed.

Karen Angelini, Justice

PUBLISH