How to Write a “Brief”
Use the following “IRAC” (Issue Rule Application Conclusion) format:
Issue: What question must be answered in order to reach a conclusion in the case? The Issue
must be expressed in the form of a legal question which, when answered, gives the result in the
case. Make it specific (e.g. “Has there been a false imprisonment if the plaintiff was asleep at
the time of ‘confinement’?”) rather than general (e.g. Did the defendant owe a duty of care to the
plaintiff when the plaintiff was trespassing on the defendant’s property?). Some cases present
more than one issue; if there is more than one issue, it is OK to write more than one, but be
sure to list the principal one and focus on that.
Rule: The Rule is the law that applies to the principal issue. It should be stated as a general
principal, (e.g. A duty of care is owed whenever the defendant should anticipate that her
conduct could create a risk of harm to the plaintiff.) not a conclusion to the case being briefed,
(e.g. “The plaintiff was negligent.”). Typically, the Rule can be expressed in one or two
sentences.
Application: The Application is a discussion of how the Rule applies to the facts of the case.
Essentially, the Application section is a description of the relevant facts, the parties’ arguments
and positions in the case, and the court’s thought process by which it answered the Issue and
established the Rule. While the Issue and Rule are normally only one or two sentences each,
the Application section of a brief should be two to four paragraphs long. It should be a written
debate, not simply a statement of the Conclusion. Whenever possible, present both sides of any
issue. Do not begin with your Conclusion. The Application section shows how you can track the
court’s reasoning on paper and is the most difficult skill you will learn. It is also permissible to
put the relevant facts of the case in a separate section of the Brief.
Conclusion: What was the result of the case? Did the appellate or supreme court affirm,
reverse or reverse and remand the lower court’s decision?
The case gives you a background of the facts along with the judge’s reasoning and
conclusion. When you brief cases, you are summarizing the judge’s opinion. Briefs should not
have to exceed more than two pages in length.
Synergies3 Tec Services, LLC v. Corvo 2020 WL 4913636
(Ala. Aug. 21, 2020)
Lisa Corvo and Thomas Bonds were engaged to be married. They had gotten engaged in Paris without
an engagement ring. When they returned to the United States, they purchased a specially made ring in
the shape of the Eiffel Tower with a diamond mounted on it. The diamond cost $40,000.
Sometime thereafter Corvo contacted DIRECTV to initiate satellite television services in her house. On
February 20, 2013, Corvo and Bonds were working from home when Raymond Castro and Daniel
McLaughlin arrived to perform the installation. Bonds let both men inside the house, advised them
where to install the equipment, and then resumed working. At one point, while Castro and McLaughlin
were still working on the installation, Corvo and Bonds experienced an interruption in their Internet
access, and, as a result, Bonds went to check with Castro and McLaughlin. Corvo noticed that the door
to the master bedroom was almost closed, which she thought was strange. Thus, she opened it, which
startled McLaughlin, who was standing behind the door.
When the installation was complete, Castro provided Corvo and Bonds with a lengthy overview of the
services. Corvo and Bonds finished paperwork associated with the installation, and Castro left.
After Castro left, Corvo went to the master bedroom to retrieve her handbag, jewelry, and shoes, and
she noticed that the three-carat diamond was missing from the center of her engagement ring. The
prongs on the ring were sticking out and were bent.
Corvo and Bonds sued McLaughlin, Castro, DIRECTV, and Synergies3 Tec Services
(Synergies3)—which was the company contracted by DIRECTV to install services and which employed
McLaughlin and Castro)—asserting claims of conversion and theft.
A jury awarded Corvo and Bonds $365,160 in damages, including mental anguish and punitive
damages. DIRECTV and Synergies3 appealed the verdict on a number of grounds, including that the
jury erroneously applied the doctrine of respondeat superior to hold them vicariously liable for the
actions of McLaughlin and Castro.
STEWART, Justice
Synergies3 and DIRECTV . . . argue that a judgment as a matter of law should have been entered as to Corvo
and Bonds’s claim alleging vicarious liability under the doctrine of respondeat superior. An employer may
be held vicariously liable for the intentional tort of its employee or agent if the plaintiff produces sufficient
evidence showing “that [1] the agent’s wrongful acts were in the scope of his employment; or [2] that the acts
were in furtherance of the business of [the employer]; or [3] that [the employer] participated in, authorized,
or ratified the wrongful acts.” Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992) (quoting Joyner
v. AAA Cooper Transp., 477 So. 2d 364, 365 (Ala. 1985)).
The employer is vicariously liable for acts of its employee that were done for the employer’s benefit, i.e.,
acts done in the line and scope of employment or for acts done for the furtherance of the employer’s
interest. The employer is directly liable for its own conduct if it authorizes or participates in the
employee’s acts or ratifies the employee’s conduct after it learns of the action.”
Potts, 604 So. 2d at 400.
Synergies3 and DIRECTV argue that the act of stealing from customers of DIRECTV is such a marked and
unusual deviation from Synergies3 and DIRECTV’s business of providing satellite television service that they
should have been granted a judgment as a matter of law on Corvo and Bonds’s claim alleging respondeat
superior liability. In support of their argument, Synergies3 and DIRECTV cite Hendley v. Springhill
Memorial Hospital, 575 So. 2d 547 (Ala. 1990), Hargrove v. Tree of Life Christian Day Care Center, 699 So.
2d 1242 (Ala. 1997), and Conner v. Magic City Trucking Service, Inc., 592 So. 2d 1048 (Ala. 1992).
In Hendley, a patient sued a hospital alleging that [a worker] who maintained medical equipment for the
hospital performed an unauthorized vaginal examination on the patient. The scope of the [worker’s]
employment was limited to tending to certain electronic medical devices used in the hospital. In affirming
the summary judgment in favor of the hospital, this Court held that the hospital could not be held liable,
under the doctrine of respondeat superior, for the [worker’s] alleged unauthorized vaginal examination of
the patient because that conduct was “such a gross deviation from the purpose for which [the worker] was in
[the patient’s] room (monitoring her [medical device]).” 575 So. 2d at 551.
In Hargrove, two day-care-center employees and their younger sister kidnapped the plaintiffs’ child from
the day-care center because one of the sisters wanted a child of her own. This court affirmed the summary
judgment entered against the plaintiffs on their claims against the day-care center based on vicarious
liability, holding that the sisters’ “apparent plot . . . constituted, as a matter of law, a gross deviation” from
the business of the day-care center. 699 So. 2d at 1246. In Hargrove, however, it was undisputed that “there
was nothing that should have, or could have, put . . . the [day-care] [c]enter on notice that the sisters would
or might kidnap one of the children.” Id.
In Magic City Trucking, an employee of a trucking company, which was subcontracted by the plaintiff’s
employer, chased the plaintiff with a snake and eventually threw the snake on the plaintiff while the two
were working in the . . . scope of their employment for their respective employers. The plaintiff sued the
trucking company based on the theory of respondeat superior, but the trial court entered a directed verdict .
. . in favor of the trucking company. 592 So. 2d at 1049. In affirming the trial court’s judgment, this Court
held that the trucking company’s employee’s “actions were a marked and unusual deviation from the
business of [the trucking company]. It cannot be said that [the employee’s] poor practical joke was in
furtherance of [the trucking company’s] business. Therefore, it was not within the scope of his employment.”
592 So. 2d at 1050.
This Court, however, has recognized:
In order to recover against a defendant under the doctrine of respondeat superior, the plaintiff must
establish the status of [employer and employee] and that the act done was within the . . . scope of the
[employee’s] employment. This rule applies even where the wrong complained of was intentionally,
willfully, or maliciously done in such a manner as to authorize a recovery for punitive damages. In
extending the liability to a willful wrong, the motive behind the act does not defeat liability, unless it can
be shown that the [employee] acted from wholly personal motives having no relation to the business of
the [employer]. Whether the [employee] was actuated solely by personal motives or by the interests of his
employer is a question for the jury. This is so if there is any evidence having a tendency either directly or
by reasonable inference to show that the wrong was committed while the [employee] was executing the
duties assigned to him.
Meyer v. Wal-Mart Stores, Inc., 813 So. 2d 832, 834–35 (Ala. 2001) [internal quotation and citations
omitted].
The evidence, viewed in the light most favorable to Corvo and Bonds, the nonmovants, indicates that Castro
and McLaughlin went to Corvo’s house to install DIRECTV’s equipment. After Castro and McLaughlin left
the house, the diamond from Corvo’s engagement ring and $160 in cash were missing. A default judgment
was entered against Castro and McLaughlin on Corvo and Bonds’s theft and conversion claims against them.
Theft and conversion are a “marked and unusual deviation” from the business of Synergies3 and DIRECTV
for which Castro and McLaughlin were in Corvo’s house—installing equipment for DIRECTV’s satellite
television service. Furthermore, there was no evidence indicating that the theft or conversion was done for
Synergies3’s or DIRECTV’s benefit or in furtherance of their interests. Moreover, there is no evidence
indicating that Synergies3 or DIRECTV authorized or participated in theft and conversion or later ratified
the conduct so as to give rise to any direct liability for theft or conversion. Based on those circumstances,
there was no factual dispute regarding Synergies3’s and DIRECTV’s vicarious or direct liability for Castro’s
and McLaughlin’s actions that required resolution by the jury; accordingly, the trial court should have
entered a judgment as a matter of law in favor of Synergies3 and DIRECTV on Corvo and Bonds’s claims
asserting liability based on the doctrine of respondeat superior.
***
Reversed in part; and remanded with instructions.
Treadwell v. J.D. Construction Co. 938 A.2d 794 (Me. 2007)
In the early 1990s, Jesse Derr created a corporation, JCDER Inc., to operate his construction business.
At some point, Derr began referring to the corporation as J.D. Construction Co. Inc., but no corporation
by that name was ever created. JCDER Inc. remained the official name for purposes of organization
and filing with Maine’s Secretary of State. Derr never filed with the Secretary of State a statement of
intention to do business under the assumed name J.D. Construction Co. Inc.
In 2003, when Leah and William Treadwell decided to build a home, they were referred to Derr. The
Treadwells brought their home plans to Derr’s office to get a quote and left the plans with an employee,
Jane Veinot. They did not meet with Derr but received a quote from him in the mail. Soon after, the
Treadwells signed a contract with J.D. Construction, with work to start in May 2003. Derr signed the
contract, and his signature appeared on the contract as follows:
J.D. Construction Co. Inc.
By: Jesse Derr
The name JCDER Inc. was nowhere in the contract, and the Treadwells were unaware of the existence
of JCDER Inc. when they signed the agreement. None of the documents the Treadwells received from
J.D. Construction indicated that the company’s real name was JCDER Inc.
Mr. Treadwell testified that he spoke with Derr twice at the worksite, just as they were breaking
ground. The Treadwells, who visited the site almost daily, never saw Derr again, even though they tried
many times to contact him. They spoke to Veinot often, but she would tell them that Derr was at another
construction site. Derr had hired subcontractors to do the work on the Treadwells’ property. Around
Thanksgiving 2003, the Treadwells visited the site and found that Derr had abandoned the job with the
house unfinished because the company was not making any money on the job. The Treadwells had paid
Derr approximately $91,000 before construction halted.
The Treadwells found many problems with the structure, including twisted studs and other lumber that
had to be replaced. The Treadwells hired new contractors to fix and finish the project, for which they
paid a significant sum.
To recover the additional costs, the Treadwells sued J.D. Construction Co., JCDER, and Derr for breach
of contract and other grounds. The trial court awarded the Treadwells damages against J.D.
Construction Co. and JCDER but found that Derr was not personally liable for the damages. The
Treadwells appealed to the Supreme Judicial Court of Maine, asking that Derr also be held liable.
Alexander, Judge
The Treadwells argue that the trial court should have awarded damages against Derr individually since he signed the
contract for a non-existent corporation. In the alternative, they contend that the trial court should have pierced the
corporate veil and held Derr responsible because he failed to disclose the existence of JCDER, Inc.
The question presented to us is whether, as a matter of law, an individual who signs a contract, purporting to act on
behalf of a corporate entity that he knows does not exist, becomes personally liable for damages arising from failure to
properly perform under that contract.
An agent who makes a contract for an undisclosed principal or a partially disclosed principal will be liable as a party to
the contract. In order for an agent to avoid personal liability on a contract negotiated in his principal’s behalf, he must
disclose not only that he is an agent but also the identity of the principal. The term “partially disclosed” principal is
synonymous with “unidentified” principal. Restatement (Third) of Agency, § 1.04 comment b (2006). “A principal is
unidentified if, when an agent and a third party interact, the third party has notice that the agent is acting for a
principal but does not have notice of the principal’s identity.” Restatement (Third) of Agency, § 1.04(2)(c) (2006). To
avoid liability for the agent, the third party must have actual knowledge of the identity of the principal, and does not
have a duty to investigate.
In Maine Farmers Exch. v. McGillicuddy, 697 A.2d 1266 (Me. 1996), the son of a potato seller signed a contract with a
distributor for a certain grade potato. The father/seller furnished the potatoes, which turned out to be the wrong grade.
In an action by the distributor against the father and son, the trial court found them to be jointly and severally liable.
They appealed the finding of joint and several liability, arguing that the distributor should have been aware that the son
was acting as an agent for his father. We affirmed that finding because the son did not disclose that he was an agent for
his father, and the distributor believed he was buying potatoes from the son.
In the present case, Derr organized a corporation called JCDER, Inc., which he used to operate his construction
business. Both Derr and JCDER, Inc., acted under the assumed name J.D. Construction Co., Inc., Derr signed the
contract on behalf of J.D. Construction, hired the subcontractors, and was purported to be the contact-person for the
project, although he was not available to the Treadwells. Derr’s use of an assumed trade name was not sufficient to
disclose his agency relationship with JCDER, Inc. JCDER, Inc., was therefore an unidentified or partially disclosed
principal. As a matter of law, Derr is personally liable for performance of contracts entered into as agent for the
non-existent J.D. Construction, Co., Inc., or the undisclosed principal JCDER, Inc.
Judgment reversed in favor of the Treadwells.
Page 36-8
Frontier Leasing Corp. v. Links Engineering, LLC 781
N.W.2d 772 (Iowa 2010)
In January 2004, Royal Links USA solicited Dave Fleming, golf professional and director of golf for
Links Engineering, doing business as Bluff Creek Golf Course, to purchase a nonmotorized beverage cart.
Royal Links told Fleming that advertising revenue from the beverage cart would cover Bluff Creek’s
monthly lease expenses for the cart. On January 21, Fleming, on behalf of Bluff Creek, applied for
financing for the beverage cart and signed a Royal Links USA credit application. Royal Links sent Bluff
Creek’s credit application to C&J Leasing Corp., which approved Bluff Creek for credit. In February
2004, Fleming and C&J Leasing signed a lease agreement for the beverage cart.
In 2005, Bluff Creek defaulted on the lease payments. C&J Leasing sent a default letter to Bluff Creek
stating that Bluff Creek could correct the default by paying $1,322. Otherwise, C&J Leasing would
require payment of the entire balance of $14,636, and Bluff Creek would have to return the equipment.
Upon receiving this letter, the managing owner of Bluff Creek, Lance Clute, called C&J Leasing and
learned of the lease agreement signed by Fleming. Clute requested a copy of the lease, and upon its
receipt, he stopped all payments on the cart. Clute communicated to C&J Leasing that he wanted the
beverage cart removed from his property. Clute submitted an affidavit stating Fleming did not have
authorization to enter into financing agreements. Nonetheless, Bluff Creek had made some payments on
the cart lease to C&J Leasing prior to Clute learning about the lease.
Bluff Creek was sued for breach of contract. The district court issued a summary judgment that Fleming
had authority to bind Bluff Creek on the contract and that Bluff Creek was liable to the lessor, Frontier
Leasing Corporation, which had acquired from C&J Leasing the rights to collect on the lease. The Iowa
Court of Appeals reversed, and Frontier Leasing appealed to the Iowa Supreme Court.
Ternus, Chief Justice
An agency relationship can be established through the agent’s actual or apparent authority to act on behalf of
the principal.
Actual authority to act is created when a principal intentionally confers authority on the agent either by
writing or through other conduct which, reasonably interpreted, allows the agent to believe that he has the
power to act. Actual authority includes both express and implied authority. Express authority is derived from
specific instructions by the principal in setting out duties, while implied authority is actual authority
circumstantially proved. Thus, actual authority examines the principal’s communications to the agent.
Restatement (Third) of Agency § 2.01 (2006).
Apparent authority is authority the principal has knowingly permitted or held the agent out as possessing.
Apparent authority focuses on the principal’s communications to the third party. Restatement (Third) of
Agency §§ 2.03, 3.03. In other words, apparent authority must be determined by what the principal does,
rather than by any acts of the agent.
A principal may also be liable under the doctrines of estoppel and ratification. Under the doctrine of estoppel,
the principal is liable if he (1) causes a third party to believe an agent has the authority to act, or (2) has notice
that a third party believes an agent has the authority and does not take steps to notify the third party of the
lack of authority. Restatement (Third) of Agency § 2.05. Moreover, based on principles of ratification, a
principal may be liable when he knowingly accepts the benefits of a transaction entered into by one of his
agents.
The district court based its ruling that Fleming had actual and apparent authority to enter into the lease on
behalf of Bluff Creek on an affidavit submitted by the director and owner of Bluff Creek, Lance Clute. Clute
stated in his affidavit that Fleming was in charge of the day-to-day operations of the golf course, Clute was
aware of the existence of the beverage cart and did not disavow the transaction, and Bluff Creek made
payments on the cart from August 2004 through March 2005. The district court noted that Bluff Creek did
not provide an affidavit from Fleming confirming the testimony of Clute. While these facts do support a
finding of an agency relationship, an examination of Clute’s entire affidavit could also cause one to conclude
that Fleming did not have actual or apparent authority to enter into the lease and that Clute did not ratify the
transaction or act in any way that would estop Bluff Creek from rejecting the transaction.
In particular, Clute’s affidavit refutes the existence of actual authority with Clute’s statement that Fleming
was not authorized to enter into any financing agreements or transactions for the purchase, lease, or
financing of capital assets like the beverage cart, especially given the lease’s hefty amount of $19,000. Clute’s
affidavit refutes the existence of apparent authority with the statement that it is customary in the golf
industry to hire a PGA golf professional to manage the day-to-day operations of a golf course, and vendors
are aware that such professionals do not have authority to enter into the type of transaction at issue here.
Clute’s affidavit also refutes that Bluff Creek is estopped from rejecting the transaction and that Bluff Creek
ratified the lease. It does so with Clute’s explanation that, when he saw the cart, he thought it was an “even
trade for advertisement” such as Bluff Creek[s]’ practice with scorecard advertising. Clute stated that with
scorecard advertisements, Bluff Creek is given the scorecards for free in exchange for the advertisements on
the cards. Clute’s affidavit also refutes the doctrines of estoppel and ratification with its statements that he
first learned of the lease through a collection letter that was received when Fleming was no longer employed
with Bluff Creek, that he immediately requested a copy of the lease when it could not be found in Bluff
Creek’s records, that he made the cart available for repossession after determining that the lease was a
“scam,” and that the cart “to this day . . . sits idle in [Bluff Creek’s] garage taking up space.” Finally, while
Bluff Creek does not submit an affidavit from Fleming supporting Clute’s affidavit testimony, a jury
nevertheless could believe Clute, finding in Bluff Creek’s favor. The absence of testimony from Fleming
simply goes to the weight of Bluff Creek’s evidence, which is something for the jury to decide, not a court on
summary judgment.
Because reasonable minds could draw different inferences from the record as to whether Fleming had
authority to bind Bluff Creek to the equipment lease, we reverse the district court’s grant of summary
judgment.
Judgment for Bluff Creek affirmed. Remanded to the trial court.
Issue
The imminent issue is that Haber, TMI’S third-party owner, president, and head of sales, breached
North Atlantic Instruments (NAI’s) confidentiality and privacy. In this regard, Haber violated the previous
contract agreement that stipulated that he should keep all sensitive information during and after
termination. However, when he shifted to Apex, Haber started calling NAI’s contacts while urging them to
do business with him. For that reason, NAI filed a complaint alleging that Haber and Apex misused their
business information and trade secrets to accrue a competitive advantage (North Atlantic Instruments, Inc.
v. Haber, 1999). Thus, it moved a preliminary injunction to prevent the two entities from disclosing
confidential, proprietary information related to NAI and soliciting its customers.
Rule
The rule of law applies to this case based on the principle of irreparable damage that NAI is likely
to suffer if the accused continues to utilize its sensitive information. Haber had the duty of confidentiality
by avoiding using the acquired knowledge from the original employment control to gain a relative
advantage.
Application
The rule applies to the case since the defendant had to uphold the duty to the confidentiality of
private information during and after the contract. One relevant fact to this case is that Haber and Apex
breached the rule mentioned above by using the acquired sensitive information to compete with the
original employer. Thereby, the employee had to hold sacred the trade secrets he had acquired during
employment, primarily limitations to customer lists, pricing policies, and any other material related to
North Atlantic or its affiliates (North Atlantic Instruments, Inc. v. Haber, 1999). The defendants moved to
the District Court to object to the claims while seeking a cause of action to revoke the preliminary
injunction that prevented them from using the highly private data.
The claimant argued that Haber violated the stipulations in the Employment Agreement and New
York Laws. Thus, he ought to maintain the company’s trade secrets and customer lists with the highest
confidentiality level. The terms also obscured Haber from using the information as leverage to achieve
competitive benefits. Apex and Haber portrayed malicious intent to lure the latter’s previous employer’s
clients to their side. Under the New York law, the court’s reasoning affirmed the District Court’s ruling
that the claimant has shown sufficient proof that the defendants misappropriated the customer information
at their disposal. Besides, the court reiterated that the defendants breached the clause of the Employment
Agreement that dictated preservation of confidentiality (North Atlantic Instruments, Inc. v. Haber, 1999).
Chiefly, the court postulated that the defendants’ actions caused irreversible harm, which provided the
premise judgment.
Conclusion
Conclusively, the Court of Appeal affirmed the lower court’s decision by determining that Apex’s
and Haber’s actions will cause irreparable damage to NAI. In this regard, the company’s loss of trade
secrets caused immeasurable harm in terms of money. Therefore, this loss has caused irreversible impacts.
While that is the case, the defendants were found guilty of the claims presented against them. The chief
conclusion was that the NAI demonstrated potential success for the metrics based on the impending
danger of suffering irreparable damage if the injunction was not granted. Another demonstration is that
the District Court did not grant NAI preliminary injunction beyond its permissible discretion.
Purchase answer to see full
attachment
Use the following “IRAC” (Issue Rule Application Conclusion) format:
Issue: What question must be answered in order to reach a conclusion in the case? The Issue
must be expressed in the form of a legal question which, when answered, gives the result in the
case. Make it specific (e.g. “Has there been a false imprisonment if the plaintiff was asleep at
the time of ‘confinement’?”) rather than general (e.g. Did the defendant owe a duty of care to the
plaintiff when the plaintiff was trespassing on the defendant’s property?). Some cases present
more than one issue; if there is more than one issue, it is OK to write more than one, but be
sure to list the principal one and focus on that.
Rule: The Rule is the law that applies to the principal issue. It should be stated as a general
principal, (e.g. A duty of care is owed whenever the defendant should anticipate that her
conduct could create a risk of harm to the plaintiff.) not a conclusion to the case being briefed,
(e.g. “The plaintiff was negligent.”). Typically, the Rule can be expressed in one or two
sentences.
Application: The Application is a discussion of how the Rule applies to the facts of the case.
Essentially, the Application section is a description of the relevant facts, the parties’ arguments
and positions in the case, and the court’s thought process by which it answered the Issue and
established the Rule. While the Issue and Rule are normally only one or two sentences each,
the Application section of a brief should be two to four paragraphs long. It should be a written
debate, not simply a statement of the Conclusion. Whenever possible, present both sides of any
issue. Do not begin with your Conclusion. The Application section shows how you can track the
court’s reasoning on paper and is the most difficult skill you will learn. It is also permissible to
put the relevant facts of the case in a separate section of the Brief.
Conclusion: What was the result of the case? Did the appellate or supreme court affirm,
reverse or reverse and remand the lower court’s decision?
The case gives you a background of the facts along with the judge’s reasoning and
conclusion. When you brief cases, you are summarizing the judge’s opinion. Briefs should not
have to exceed more than two pages in length.
Synergies3 Tec Services, LLC v. Corvo 2020 WL 4913636
(Ala. Aug. 21, 2020)
Lisa Corvo and Thomas Bonds were engaged to be married. They had gotten engaged in Paris without
an engagement ring. When they returned to the United States, they purchased a specially made ring in
the shape of the Eiffel Tower with a diamond mounted on it. The diamond cost $40,000.
Sometime thereafter Corvo contacted DIRECTV to initiate satellite television services in her house. On
February 20, 2013, Corvo and Bonds were working from home when Raymond Castro and Daniel
McLaughlin arrived to perform the installation. Bonds let both men inside the house, advised them
where to install the equipment, and then resumed working. At one point, while Castro and McLaughlin
were still working on the installation, Corvo and Bonds experienced an interruption in their Internet
access, and, as a result, Bonds went to check with Castro and McLaughlin. Corvo noticed that the door
to the master bedroom was almost closed, which she thought was strange. Thus, she opened it, which
startled McLaughlin, who was standing behind the door.
When the installation was complete, Castro provided Corvo and Bonds with a lengthy overview of the
services. Corvo and Bonds finished paperwork associated with the installation, and Castro left.
After Castro left, Corvo went to the master bedroom to retrieve her handbag, jewelry, and shoes, and
she noticed that the three-carat diamond was missing from the center of her engagement ring. The
prongs on the ring were sticking out and were bent.
Corvo and Bonds sued McLaughlin, Castro, DIRECTV, and Synergies3 Tec Services
(Synergies3)—which was the company contracted by DIRECTV to install services and which employed
McLaughlin and Castro)—asserting claims of conversion and theft.
A jury awarded Corvo and Bonds $365,160 in damages, including mental anguish and punitive
damages. DIRECTV and Synergies3 appealed the verdict on a number of grounds, including that the
jury erroneously applied the doctrine of respondeat superior to hold them vicariously liable for the
actions of McLaughlin and Castro.
STEWART, Justice
Synergies3 and DIRECTV . . . argue that a judgment as a matter of law should have been entered as to Corvo
and Bonds’s claim alleging vicarious liability under the doctrine of respondeat superior. An employer may
be held vicariously liable for the intentional tort of its employee or agent if the plaintiff produces sufficient
evidence showing “that [1] the agent’s wrongful acts were in the scope of his employment; or [2] that the acts
were in furtherance of the business of [the employer]; or [3] that [the employer] participated in, authorized,
or ratified the wrongful acts.” Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992) (quoting Joyner
v. AAA Cooper Transp., 477 So. 2d 364, 365 (Ala. 1985)).
The employer is vicariously liable for acts of its employee that were done for the employer’s benefit, i.e.,
acts done in the line and scope of employment or for acts done for the furtherance of the employer’s
interest. The employer is directly liable for its own conduct if it authorizes or participates in the
employee’s acts or ratifies the employee’s conduct after it learns of the action.”
Potts, 604 So. 2d at 400.
Synergies3 and DIRECTV argue that the act of stealing from customers of DIRECTV is such a marked and
unusual deviation from Synergies3 and DIRECTV’s business of providing satellite television service that they
should have been granted a judgment as a matter of law on Corvo and Bonds’s claim alleging respondeat
superior liability. In support of their argument, Synergies3 and DIRECTV cite Hendley v. Springhill
Memorial Hospital, 575 So. 2d 547 (Ala. 1990), Hargrove v. Tree of Life Christian Day Care Center, 699 So.
2d 1242 (Ala. 1997), and Conner v. Magic City Trucking Service, Inc., 592 So. 2d 1048 (Ala. 1992).
In Hendley, a patient sued a hospital alleging that [a worker] who maintained medical equipment for the
hospital performed an unauthorized vaginal examination on the patient. The scope of the [worker’s]
employment was limited to tending to certain electronic medical devices used in the hospital. In affirming
the summary judgment in favor of the hospital, this Court held that the hospital could not be held liable,
under the doctrine of respondeat superior, for the [worker’s] alleged unauthorized vaginal examination of
the patient because that conduct was “such a gross deviation from the purpose for which [the worker] was in
[the patient’s] room (monitoring her [medical device]).” 575 So. 2d at 551.
In Hargrove, two day-care-center employees and their younger sister kidnapped the plaintiffs’ child from
the day-care center because one of the sisters wanted a child of her own. This court affirmed the summary
judgment entered against the plaintiffs on their claims against the day-care center based on vicarious
liability, holding that the sisters’ “apparent plot . . . constituted, as a matter of law, a gross deviation” from
the business of the day-care center. 699 So. 2d at 1246. In Hargrove, however, it was undisputed that “there
was nothing that should have, or could have, put . . . the [day-care] [c]enter on notice that the sisters would
or might kidnap one of the children.” Id.
In Magic City Trucking, an employee of a trucking company, which was subcontracted by the plaintiff’s
employer, chased the plaintiff with a snake and eventually threw the snake on the plaintiff while the two
were working in the . . . scope of their employment for their respective employers. The plaintiff sued the
trucking company based on the theory of respondeat superior, but the trial court entered a directed verdict .
. . in favor of the trucking company. 592 So. 2d at 1049. In affirming the trial court’s judgment, this Court
held that the trucking company’s employee’s “actions were a marked and unusual deviation from the
business of [the trucking company]. It cannot be said that [the employee’s] poor practical joke was in
furtherance of [the trucking company’s] business. Therefore, it was not within the scope of his employment.”
592 So. 2d at 1050.
This Court, however, has recognized:
In order to recover against a defendant under the doctrine of respondeat superior, the plaintiff must
establish the status of [employer and employee] and that the act done was within the . . . scope of the
[employee’s] employment. This rule applies even where the wrong complained of was intentionally,
willfully, or maliciously done in such a manner as to authorize a recovery for punitive damages. In
extending the liability to a willful wrong, the motive behind the act does not defeat liability, unless it can
be shown that the [employee] acted from wholly personal motives having no relation to the business of
the [employer]. Whether the [employee] was actuated solely by personal motives or by the interests of his
employer is a question for the jury. This is so if there is any evidence having a tendency either directly or
by reasonable inference to show that the wrong was committed while the [employee] was executing the
duties assigned to him.
Meyer v. Wal-Mart Stores, Inc., 813 So. 2d 832, 834–35 (Ala. 2001) [internal quotation and citations
omitted].
The evidence, viewed in the light most favorable to Corvo and Bonds, the nonmovants, indicates that Castro
and McLaughlin went to Corvo’s house to install DIRECTV’s equipment. After Castro and McLaughlin left
the house, the diamond from Corvo’s engagement ring and $160 in cash were missing. A default judgment
was entered against Castro and McLaughlin on Corvo and Bonds’s theft and conversion claims against them.
Theft and conversion are a “marked and unusual deviation” from the business of Synergies3 and DIRECTV
for which Castro and McLaughlin were in Corvo’s house—installing equipment for DIRECTV’s satellite
television service. Furthermore, there was no evidence indicating that the theft or conversion was done for
Synergies3’s or DIRECTV’s benefit or in furtherance of their interests. Moreover, there is no evidence
indicating that Synergies3 or DIRECTV authorized or participated in theft and conversion or later ratified
the conduct so as to give rise to any direct liability for theft or conversion. Based on those circumstances,
there was no factual dispute regarding Synergies3’s and DIRECTV’s vicarious or direct liability for Castro’s
and McLaughlin’s actions that required resolution by the jury; accordingly, the trial court should have
entered a judgment as a matter of law in favor of Synergies3 and DIRECTV on Corvo and Bonds’s claims
asserting liability based on the doctrine of respondeat superior.
***
Reversed in part; and remanded with instructions.
Treadwell v. J.D. Construction Co. 938 A.2d 794 (Me. 2007)
In the early 1990s, Jesse Derr created a corporation, JCDER Inc., to operate his construction business.
At some point, Derr began referring to the corporation as J.D. Construction Co. Inc., but no corporation
by that name was ever created. JCDER Inc. remained the official name for purposes of organization
and filing with Maine’s Secretary of State. Derr never filed with the Secretary of State a statement of
intention to do business under the assumed name J.D. Construction Co. Inc.
In 2003, when Leah and William Treadwell decided to build a home, they were referred to Derr. The
Treadwells brought their home plans to Derr’s office to get a quote and left the plans with an employee,
Jane Veinot. They did not meet with Derr but received a quote from him in the mail. Soon after, the
Treadwells signed a contract with J.D. Construction, with work to start in May 2003. Derr signed the
contract, and his signature appeared on the contract as follows:
J.D. Construction Co. Inc.
By: Jesse Derr
The name JCDER Inc. was nowhere in the contract, and the Treadwells were unaware of the existence
of JCDER Inc. when they signed the agreement. None of the documents the Treadwells received from
J.D. Construction indicated that the company’s real name was JCDER Inc.
Mr. Treadwell testified that he spoke with Derr twice at the worksite, just as they were breaking
ground. The Treadwells, who visited the site almost daily, never saw Derr again, even though they tried
many times to contact him. They spoke to Veinot often, but she would tell them that Derr was at another
construction site. Derr had hired subcontractors to do the work on the Treadwells’ property. Around
Thanksgiving 2003, the Treadwells visited the site and found that Derr had abandoned the job with the
house unfinished because the company was not making any money on the job. The Treadwells had paid
Derr approximately $91,000 before construction halted.
The Treadwells found many problems with the structure, including twisted studs and other lumber that
had to be replaced. The Treadwells hired new contractors to fix and finish the project, for which they
paid a significant sum.
To recover the additional costs, the Treadwells sued J.D. Construction Co., JCDER, and Derr for breach
of contract and other grounds. The trial court awarded the Treadwells damages against J.D.
Construction Co. and JCDER but found that Derr was not personally liable for the damages. The
Treadwells appealed to the Supreme Judicial Court of Maine, asking that Derr also be held liable.
Alexander, Judge
The Treadwells argue that the trial court should have awarded damages against Derr individually since he signed the
contract for a non-existent corporation. In the alternative, they contend that the trial court should have pierced the
corporate veil and held Derr responsible because he failed to disclose the existence of JCDER, Inc.
The question presented to us is whether, as a matter of law, an individual who signs a contract, purporting to act on
behalf of a corporate entity that he knows does not exist, becomes personally liable for damages arising from failure to
properly perform under that contract.
An agent who makes a contract for an undisclosed principal or a partially disclosed principal will be liable as a party to
the contract. In order for an agent to avoid personal liability on a contract negotiated in his principal’s behalf, he must
disclose not only that he is an agent but also the identity of the principal. The term “partially disclosed” principal is
synonymous with “unidentified” principal. Restatement (Third) of Agency, § 1.04 comment b (2006). “A principal is
unidentified if, when an agent and a third party interact, the third party has notice that the agent is acting for a
principal but does not have notice of the principal’s identity.” Restatement (Third) of Agency, § 1.04(2)(c) (2006). To
avoid liability for the agent, the third party must have actual knowledge of the identity of the principal, and does not
have a duty to investigate.
In Maine Farmers Exch. v. McGillicuddy, 697 A.2d 1266 (Me. 1996), the son of a potato seller signed a contract with a
distributor for a certain grade potato. The father/seller furnished the potatoes, which turned out to be the wrong grade.
In an action by the distributor against the father and son, the trial court found them to be jointly and severally liable.
They appealed the finding of joint and several liability, arguing that the distributor should have been aware that the son
was acting as an agent for his father. We affirmed that finding because the son did not disclose that he was an agent for
his father, and the distributor believed he was buying potatoes from the son.
In the present case, Derr organized a corporation called JCDER, Inc., which he used to operate his construction
business. Both Derr and JCDER, Inc., acted under the assumed name J.D. Construction Co., Inc., Derr signed the
contract on behalf of J.D. Construction, hired the subcontractors, and was purported to be the contact-person for the
project, although he was not available to the Treadwells. Derr’s use of an assumed trade name was not sufficient to
disclose his agency relationship with JCDER, Inc. JCDER, Inc., was therefore an unidentified or partially disclosed
principal. As a matter of law, Derr is personally liable for performance of contracts entered into as agent for the
non-existent J.D. Construction, Co., Inc., or the undisclosed principal JCDER, Inc.
Judgment reversed in favor of the Treadwells.
Page 36-8
Frontier Leasing Corp. v. Links Engineering, LLC 781
N.W.2d 772 (Iowa 2010)
In January 2004, Royal Links USA solicited Dave Fleming, golf professional and director of golf for
Links Engineering, doing business as Bluff Creek Golf Course, to purchase a nonmotorized beverage cart.
Royal Links told Fleming that advertising revenue from the beverage cart would cover Bluff Creek’s
monthly lease expenses for the cart. On January 21, Fleming, on behalf of Bluff Creek, applied for
financing for the beverage cart and signed a Royal Links USA credit application. Royal Links sent Bluff
Creek’s credit application to C&J Leasing Corp., which approved Bluff Creek for credit. In February
2004, Fleming and C&J Leasing signed a lease agreement for the beverage cart.
In 2005, Bluff Creek defaulted on the lease payments. C&J Leasing sent a default letter to Bluff Creek
stating that Bluff Creek could correct the default by paying $1,322. Otherwise, C&J Leasing would
require payment of the entire balance of $14,636, and Bluff Creek would have to return the equipment.
Upon receiving this letter, the managing owner of Bluff Creek, Lance Clute, called C&J Leasing and
learned of the lease agreement signed by Fleming. Clute requested a copy of the lease, and upon its
receipt, he stopped all payments on the cart. Clute communicated to C&J Leasing that he wanted the
beverage cart removed from his property. Clute submitted an affidavit stating Fleming did not have
authorization to enter into financing agreements. Nonetheless, Bluff Creek had made some payments on
the cart lease to C&J Leasing prior to Clute learning about the lease.
Bluff Creek was sued for breach of contract. The district court issued a summary judgment that Fleming
had authority to bind Bluff Creek on the contract and that Bluff Creek was liable to the lessor, Frontier
Leasing Corporation, which had acquired from C&J Leasing the rights to collect on the lease. The Iowa
Court of Appeals reversed, and Frontier Leasing appealed to the Iowa Supreme Court.
Ternus, Chief Justice
An agency relationship can be established through the agent’s actual or apparent authority to act on behalf of
the principal.
Actual authority to act is created when a principal intentionally confers authority on the agent either by
writing or through other conduct which, reasonably interpreted, allows the agent to believe that he has the
power to act. Actual authority includes both express and implied authority. Express authority is derived from
specific instructions by the principal in setting out duties, while implied authority is actual authority
circumstantially proved. Thus, actual authority examines the principal’s communications to the agent.
Restatement (Third) of Agency § 2.01 (2006).
Apparent authority is authority the principal has knowingly permitted or held the agent out as possessing.
Apparent authority focuses on the principal’s communications to the third party. Restatement (Third) of
Agency §§ 2.03, 3.03. In other words, apparent authority must be determined by what the principal does,
rather than by any acts of the agent.
A principal may also be liable under the doctrines of estoppel and ratification. Under the doctrine of estoppel,
the principal is liable if he (1) causes a third party to believe an agent has the authority to act, or (2) has notice
that a third party believes an agent has the authority and does not take steps to notify the third party of the
lack of authority. Restatement (Third) of Agency § 2.05. Moreover, based on principles of ratification, a
principal may be liable when he knowingly accepts the benefits of a transaction entered into by one of his
agents.
The district court based its ruling that Fleming had actual and apparent authority to enter into the lease on
behalf of Bluff Creek on an affidavit submitted by the director and owner of Bluff Creek, Lance Clute. Clute
stated in his affidavit that Fleming was in charge of the day-to-day operations of the golf course, Clute was
aware of the existence of the beverage cart and did not disavow the transaction, and Bluff Creek made
payments on the cart from August 2004 through March 2005. The district court noted that Bluff Creek did
not provide an affidavit from Fleming confirming the testimony of Clute. While these facts do support a
finding of an agency relationship, an examination of Clute’s entire affidavit could also cause one to conclude
that Fleming did not have actual or apparent authority to enter into the lease and that Clute did not ratify the
transaction or act in any way that would estop Bluff Creek from rejecting the transaction.
In particular, Clute’s affidavit refutes the existence of actual authority with Clute’s statement that Fleming
was not authorized to enter into any financing agreements or transactions for the purchase, lease, or
financing of capital assets like the beverage cart, especially given the lease’s hefty amount of $19,000. Clute’s
affidavit refutes the existence of apparent authority with the statement that it is customary in the golf
industry to hire a PGA golf professional to manage the day-to-day operations of a golf course, and vendors
are aware that such professionals do not have authority to enter into the type of transaction at issue here.
Clute’s affidavit also refutes that Bluff Creek is estopped from rejecting the transaction and that Bluff Creek
ratified the lease. It does so with Clute’s explanation that, when he saw the cart, he thought it was an “even
trade for advertisement” such as Bluff Creek[s]’ practice with scorecard advertising. Clute stated that with
scorecard advertisements, Bluff Creek is given the scorecards for free in exchange for the advertisements on
the cards. Clute’s affidavit also refutes the doctrines of estoppel and ratification with its statements that he
first learned of the lease through a collection letter that was received when Fleming was no longer employed
with Bluff Creek, that he immediately requested a copy of the lease when it could not be found in Bluff
Creek’s records, that he made the cart available for repossession after determining that the lease was a
“scam,” and that the cart “to this day . . . sits idle in [Bluff Creek’s] garage taking up space.” Finally, while
Bluff Creek does not submit an affidavit from Fleming supporting Clute’s affidavit testimony, a jury
nevertheless could believe Clute, finding in Bluff Creek’s favor. The absence of testimony from Fleming
simply goes to the weight of Bluff Creek’s evidence, which is something for the jury to decide, not a court on
summary judgment.
Because reasonable minds could draw different inferences from the record as to whether Fleming had
authority to bind Bluff Creek to the equipment lease, we reverse the district court’s grant of summary
judgment.
Judgment for Bluff Creek affirmed. Remanded to the trial court.
Issue
The imminent issue is that Haber, TMI’S third-party owner, president, and head of sales, breached
North Atlantic Instruments (NAI’s) confidentiality and privacy. In this regard, Haber violated the previous
contract agreement that stipulated that he should keep all sensitive information during and after
termination. However, when he shifted to Apex, Haber started calling NAI’s contacts while urging them to
do business with him. For that reason, NAI filed a complaint alleging that Haber and Apex misused their
business information and trade secrets to accrue a competitive advantage (North Atlantic Instruments, Inc.
v. Haber, 1999). Thus, it moved a preliminary injunction to prevent the two entities from disclosing
confidential, proprietary information related to NAI and soliciting its customers.
Rule
The rule of law applies to this case based on the principle of irreparable damage that NAI is likely
to suffer if the accused continues to utilize its sensitive information. Haber had the duty of confidentiality
by avoiding using the acquired knowledge from the original employment control to gain a relative
advantage.
Application
The rule applies to the case since the defendant had to uphold the duty to the confidentiality of
private information during and after the contract. One relevant fact to this case is that Haber and Apex
breached the rule mentioned above by using the acquired sensitive information to compete with the
original employer. Thereby, the employee had to hold sacred the trade secrets he had acquired during
employment, primarily limitations to customer lists, pricing policies, and any other material related to
North Atlantic or its affiliates (North Atlantic Instruments, Inc. v. Haber, 1999). The defendants moved to
the District Court to object to the claims while seeking a cause of action to revoke the preliminary
injunction that prevented them from using the highly private data.
The claimant argued that Haber violated the stipulations in the Employment Agreement and New
York Laws. Thus, he ought to maintain the company’s trade secrets and customer lists with the highest
confidentiality level. The terms also obscured Haber from using the information as leverage to achieve
competitive benefits. Apex and Haber portrayed malicious intent to lure the latter’s previous employer’s
clients to their side. Under the New York law, the court’s reasoning affirmed the District Court’s ruling
that the claimant has shown sufficient proof that the defendants misappropriated the customer information
at their disposal. Besides, the court reiterated that the defendants breached the clause of the Employment
Agreement that dictated preservation of confidentiality (North Atlantic Instruments, Inc. v. Haber, 1999).
Chiefly, the court postulated that the defendants’ actions caused irreversible harm, which provided the
premise judgment.
Conclusion
Conclusively, the Court of Appeal affirmed the lower court’s decision by determining that Apex’s
and Haber’s actions will cause irreparable damage to NAI. In this regard, the company’s loss of trade
secrets caused immeasurable harm in terms of money. Therefore, this loss has caused irreversible impacts.
While that is the case, the defendants were found guilty of the claims presented against them. The chief
conclusion was that the NAI demonstrated potential success for the metrics based on the impending
danger of suffering irreparable damage if the injunction was not granted. Another demonstration is that
the District Court did not grant NAI preliminary injunction beyond its permissible discretion.
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