Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc., 03-17-00534-CV

Denise Stroup, as Legal Guardian of D. L. S., an Incapacitated Person v. MRM Management, Inc.

03-17-00534-CV

| Tex. App. | Jan 2, 2018

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Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/2/2018 8:00:00 AM JEFFREY D. KYLE Clerk

*1 ACCEPTED 03-17-00534-CV 21540047 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/1/2018 3:21 PM JEFFREY D. KYLE

CLERK NO. 03-17-00534-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS DENISE STROUP, AS LEGAL GUARDIAN OF D.L.S., AN INCAPACITATED PERSON Appellant, VS. MRM MANAGEMENT, INC. Appellee. On Appeal from the 53 RD District Court of Travis County, Texas No. D-1-GN-17-003290 Honorable Karin Crump

BRIEF OF APPELLANT APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT FOGELMAN & VON FLATERN, LLP Aaron von Flatern State Bar No. 24076892 3101 Bee Cave Road, Suite 270 Austin, Texas 78746 (512) 375-3198 (512) 372-3209 (telecopier) aaron@fvlawfirm.com COUNSEL FOR APPELLANT

LIST OF PARTIES AND COUNSEL

Pursuant to Rule 38.2(a)(1)(A), the following is a list of parties and counsel before the Court. Appellant: Sarah Denise Stroup as legal guardian of D.L.S., an incapacitated person.………………………………….…………………………….Plaintiff Counsel for Appellant: Aaron von Flatern........................................................Trial/Appellate Counsel State Bar No. 24076892 Fogelman & Von Flatern, LLP 3101 Bee Cave Road, Suite 100 Austin, Texas 78746 (512) 375-3198 (512) 372-3209 (telecopier) aaron@fvlawfirm.com Appellee: MRM Management, Inc..………………………………………......Defendant Counsel for Appellee: Gregory R. Ave....................................................................Appellate Counsel State Bar No. 01448900 Walters, Balido & Crain, LLP Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 (214) 347-8310 (214) 347-8311 (telecopier) AveEdocsNotifications@wbclawfirm.com

*3 LIST OF PARTIES AND COUNSEL.............................................................i TABLE OF CONTENTS................................................................................ii INDEX OF AUTHORITIES...........................................................................v STATEMENT OF THE CASE.......................................................................1 ISSUES PRESENTED....................................................................................4 STATEMENT OF THE FACTS.....................................................................4 SUMMARY OF THE ARGUMENT..............................................................6 ARGUMENT..................................................................................................8

A. Standard of Review....................................................................8 1. Traditional Motion for Summary Judgment Review.........8 2. No Evidence Motion for Summary Judgment Review......9 3. Summary Judgment Review in General..........................10

B. The Trial Court Erred in Granting MRM’s Traditional Motion for Summary Judgment.............................................................11 1. Appellee MRM Has Failed to Conclusively Negate

Respondeat Superior Liability........................................11 a. The independent contractor agreement cannot

override the broker’s responsibility under Texas law........................................................................12

ii *4 b. Because it dissuaded Taylor from purchasing additional insurance, MRM should be estopped from using the independent contractor agreement to escape exposure that Taylor would otherwise have insured………………………………..................15

c. Fact questions abound in the determination of the independent-contractor question................................................................17 i. The independent nature of Taylor’s business

……………………………………………18 ii. Taylor’s obligation to supply necessary supplies, tools, and materials……………..19 iii. Taylor’s right to control the progress of her work...........................................................20 iv. The actual control exercised by Appellee

MRM..........................................................21

v. The permanency of the working relationship ……………………………………..……..23 vi. Whether the parties believe they are creating an employer-employee relationship...........23 vii. The time for which Taylor was employed...24 viii. The method by which Taylor was paid......24

2. Appellee MRM Has Failed to Conclusively Negate Joint- Enterprise Liability.........................................................24 3. Appellee MRM Has Failed to Conclusively Negate Liability Under the Texas Occupations Code ................28 iii *5 4. Texas Labor Code Jurisprudence Is Persuasive In Favor of ‘Course and Scope’ Versus ‘Detour’ for Each of Appellant’s Theories of Recovery...................................35 a. The dual purpose rule............................................35 b. The continuous coverage doctrine........................36

C. The Trial Court Erred in Granting MRM’s No Evidence Motion for Summary Judgment.............................................................38 PRAYER..................................................................................................................39 CERTIFICATE OF SERVICE................................................................................40 CERTIFICATE OF COMPLIANCE.......................................................................41

INDEX OF AUTHORITIES

*6 Cases Aetna Cas. & Sur. Co. v. Orgon , 721 S.W.2d 572 (Tex. App.—Austin 1986, writ ref'd n.r.e.)………........................37 Aluminum Chemicals, Inc. v. Bechtel Corp. , 28 S.W.3d 64 (Tex. App.—2000, no pet.)…………................................................25 Arbelaez v. Just Brakes Corp. , 149 S.W.3d 717 (Tex. App.–Austin 2004, no pet.).............................................37, 38 City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005)....................................................................................10 Denson v. Dallas County Credit Union , 262 S.W.3d 846 (Tex. App.—Dallas 2008, no pet.)……….......................................9 Flood v. Katz , 294 S.W.3d 756 (Tex. App.—Dallas 2009, pet. denied) ...........................................9 Gipson v. Davis Realty Co. , 215 Cal. App. 2d 190 (1963)...............................................................................14, 30 Home Interiors & Gifts, Inc. v. Veliz , 695 S.W.2d 35 (Tex. App.—Corpus Christi 1985, writ ref. n.r.e.)...........................18 Kindred v. Con/Chem, Inc ., 650 S.W.2d 61 (Tex. 1983)......................................................................................10 King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003)......................................................................................9 Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997) ……..............................................................................9

v *7 Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546 (Tex. 1985).................................................................................8, 10 Pitchfork Land and Cattle Co. v. King , 346 S.W.2d 598 (Tex. 1961)...............................................................................11, 18 Saenz. v. Southern Union Gas Co. , 999 S.W.2d 490 (Tex. App.—El Paso 1999, no pet.)...............................................10 Shelton v. Standard Ins. Co. , 389 S.W.2d 290 (Tex. 1965)....................................................................................37 Sudan v. Sudan , 199 S.W.3d 291 (Tex. 2006)....................................................................................10 Texas DOT v. Able , 35 S.W.3d 608 (Tex. 2000)......................................................................................25 Tex. Mut. Ins. Co. v. Jerrols , 385 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd)..............35, 36 Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc ., 644 S.W.2d 443 (Tex. 1982)…..................................................................................9 Wornick Co. v. Casas , 856 S.W.2d 732 (Tex. 1993)......................................................................................8 Zurich Am. Ins. Co. v. McVey , 339 S.W.3d 724 (Tex. App.—Austin 2011, pet. denied)....................................35, 36 Statutes Tex. Occ. Code § 1101.001...........................................................................12, 28, 29 Tex. Occ. Code § 1101.002…...........................................................12, 13, 29, 31, 34 Tex. Occ. Code § 1101.351 .......................................................................... 12, 13, 18, 29

vi *8 Tex. Occ. Code § 1101.803 .................................................................... 12, 14, 17, 29, 30 Rules Tex. R. Civ. P. 166a(i) .........................................................................................9, 10

vii

NO. 03-17-00534-CV

*9 IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS DENISE STROUP, AS LEGAL GUARDIAN OF D.L.S., AN INCAPACITATED PERSON Appellant, VS. MRM MANAGEMENT, INC. Appellee. On Appeal from the 53 RD District Court of Travis County, Texas No. D-1-GN-17-003290 Honorable Karin Crump

BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant Denise Stroup respectfully presents this Brief of Appellant. Appellant requests that this Court reverse the judgment of the 53 rd District Court of Travis County, Texas, and in support thereof would show the Court as follows:

STATEMENT OF THE CASE

This is an appeal from summary judgment in a personal injury car-crash case. It should be noted that the sole injured party in the case—Douglas Lee Stroup a/k/a *10 D.L.S—became incapacitated as a result of his injuries. He was therefore represented in the proceedings below by his legally appointed guardian, Sarah Denise Stroup a/k/a Denise Stroup (hereafter “Stroup”, “Appellant”, “Appellant Stroup”, or “Plaintiff below”). Supp CR 4. On July 27, 2017, by order of the Probate Court No. 1 of Travis County, Douglas Lee Stroup’s rights were restored, and the guardianship discharged.

The procedural history is as follows. Appellant Stroup sued a real estate agent named Penny Harrington Taylor alleging negligent operation of a motor vehicle. Supp. CR 4-8; Supp. CR 118-124. Stroup additionally sued the corresponding real estate broker of record, MRM Management, Inc. (the Appellee in this proceeding) alleging MRM Management, Inc. was vicariously liable for the tortious conduct of Penny Harrington Taylor. Supp. CR 4-8; Supp. CR 118-124. MRM Management, Inc. will be referred to herein as “MRM”, “Appellee”, or “Appellee MRM”.

Appellee MRM filed a combined Traditional and No-Evidence Motion for Summary Judgment. As grounds for summary judgment, Appellee MRM asserted there was no evidence to support any of Stroup’s theories of vicarious liability, and/or that the summary judgment evidence conclusively negated Stroup’s theories of vicarious liability as to MRM.

*11 In its motion, Appellee MRM did not challenge Stroup's underlying claims of negligence as to Defendant Taylor, or assert any grounds with respect to Taylor’s conduct—only the existence of Defendant MRM’s vicarious liability for Taylor’s conduct.

The order granting MRM Management, Inc.’s First Amended Traditional and No Evidence Motions for Summary Judgment was signed on February 28th, 2017 in Travis County Cause No. D-1-GN-15-004909. Supp. CR 407. That case was styled Sarah Denise Stroup, as Legal Guardian of Douglas Lee Stroup, an Incapacitated Person v. Penny Harrington Taylor and MRM Management, Inc. in the 98th Judicial District Court of Travis County, Texas. Supp. CR 407.

By order of that Court, Stroup’s claims against MRM Management, Inc. were subsequently severed on July 17, 2017 to a new cause—Cause No. D-1-GN- 17003290, styled Douglas Lee Stroup v. MRM Management, Inc. in the 53rd Judicial District Court of Travis County, Texas. Supp CR 435-36. Accordingly, on July 17, 2017 the prior order granting Summary Judgment as to defendant MRM Management, Inc., became final as it disposed of all claims and parties within cause number D-1-GN-17-003290.

Stroup timely filed notice of appeal on August 10, 2017 in Cause No. D-1- GN-17-003290. Supp. CR 8-9.

ISSUES PRESENTED

*12 The sole issue on appeal in this case is whether the trial court’s order granting summary judgment in favor of MRM was proper. That is: has Stroup presented evidence raising a genuine issue of material fact as to each element of Stroup’s vicarious-liability theories of recovery against MRM, including: respondeat superior; joint-venture liability; and statutory vicarious liability?

A key sub-issue is whether the Texas Real Estate License Act (within the Texas Occupations Code) requires real estate brokers to be responsible for the tortious conduct of real estate agents, regardless of the agents’ status as employees or independent contractors.

SUMMARY OF THE FACTS

This is a personal injury case arising from a car-versus-motorcycle crash. According to the police report, on August 6, 2015, in Austin, Texas, Penny Harrington Taylor (hereafter “Taylor” or “Defendant Taylor”), caused a collision when she advanced her car into a public roadway from a hotel driveway. Supp. CR 347-348. Defendant Taylor was a licensed realtor at the time and Appellee MRM was her sponsoring broker for that license. Supp. CR 350. Taylor testified that she believes she was engaged in selling real estate at the time of the subject crash. Supp. CR 329 (76:21-24). Taylor had traveled to east Austin that Thursday morning from *13 Lakeway, Texas with the intent of devoting the weekend to performing landscape improvement work on a residential property that she was listing for sale at 2705 Crest Avenue, in Austin, Texas. Supp. CR 318 (59:3-9); Supp. CR 161 (69:14-21). The listing agreement for 2705 Crest Avenue designates Taylor as the listing agent, and Keller Williams Realty (trade name for Appellee MRM Management, Inc.) as the broker of record. See Appendix Ch. 1; see also Supp. CR 352-360; see also Supp. CR 267 (establishing Keller Williams Realty as the trade name for MRM Management, Inc.).

In the proceeding below, Appellant Stroup sued Penny Harrington Taylor (hereafter “Defendant Taylor”) for negligently causing the motor vehicle crash. Supp. CR 4-8; Supp. CR 118-124. Because Stroup alleged Defendant Taylor was a licensed real estate salesperson engaged in real estate sales activities at the time of the crash, Stroup additionally sued the real estate broker of record, Appellee MRM, alleging that MRM was vicariously liable for Defendant Taylor’s tortious conduct. Supp CR 4-8; Supp. CR 118-124. Stroup alleged that MRM was vicariously liable pursuant to one or more of the following theories: respondeat superior; principle- agent liability; joint enterprise liability; and statutory vicarious liability pursuant to the Texas Real Estate License Act within the Texas Occupations Code. Supp. CR 118-124.

*14 Appellee MRM’s Traditional and No-evidence Motion for Summary Judgment asserted there was no evidence to support any of Stroup’s theories of vicarious liability, and/or that its summary judgment evidence conclusively negated Stroup’s theories of vicarious liability as to MRM.

SUMMARY OF THE ARGUMENT

The Trial Court erred in granting MRM Management, Inc.’s Traditional Motion for Summary Judgment. Appellee has failed to conclusively negate respondeat superior liability for Appellant's tort claims against Appellee’s employee Penny Taylor. Appellee argues Taylor was an independent contractor to whom respondeat superior could not apply. However, because Taylor was a real estate agent, and Appellee was Taylor's real estate broker of record, the independent contractor agreement presented by Appellee cannot override Texas law requiring MRM to be responsible for Defendant Taylor's conduct. Further, because the wording of the agreement dissuaded Taylor from purchasing additional insurance, MRM should be estopped from using the independent contractor agreement to escape exposure that Taylor would otherwise have insured. Further, fact questions abound in this case when weighing the independent-contractor-versus-employee factors established by the Texas Supreme Court. Factors with fact questions include: the independent nature of Taylor’s business; Taylor’s obligation to supply necessary *15 supplies, tools, and materials; Taylor’s right to control the progress of her work; the actual control exercised by Appellee MRM; the permanency of the working relationship; whether the parties believe they created an employer-employee relationship; the time for which Taylor was employed; and the method by which Taylor was paid.

In addition to respondeat superior liability, Appellee MRM has failed to conclusively negate joint-enterprise liability. Appellee argues there was no evidence of the element of equal right of control, and that Taylor was outside the scope of any alleged joint-enterprise. However, substantial evidence suggests MRM’s real estate agents participated in the governance of the organization, and that Taylor was within the scope of her work for the organization when the crash occurred. The course-and- scope evidence applies not only to the joint-enterprise theory of recovery, but also to the respondeat superior theory of recovery, and the statutory vicarious liability theory of recovery.

Appellee MRM has failed to conclusively negate vicarious liability under the Texas Occupations Code, which requires real estate brokers to answer for the tortious conduct of the real estate agents who carry out the broker’s business.

Finally, the trial court erred in granting MRM’s no-evidence motion for summary judgment. Because MRM has only challenged its vicarious liability for *16 Taylor's conduct, and not the elements of Plaintiff's tort claims against Taylor, the fact issues established in response to Appelle's Traditional Motion are equally responsive to the no-evidence motion. Appellant has presented more than a scintilla of evidence as to Appellee MRM's right of control as an employer, vicarious liability as a joint-venturer, and statutory responsibility as a sponsoring broker. Further, Appellant has presented more than a scintilla of evidence as to Taylor's acting within the course and scope of the relevant work under the doctrines of respondeat superior, joint-enterprise, and statutory vicarious liability.

ARGUMENT

A. Standard of Review 1. Traditional Motion for Summary Judgment Review The standard for reviewing a traditional summary judgment is well

established. Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546, 548-49 (Tex. 1985). Defendants who move for traditional summary judgment must show the plaintiff has no cause of action. See Id. Defendant (here, the Appellee MRM) may meet this burden by either disproving at least one essential element of each theory of recovery, or by conclusively proving all elements of an affirmative defense. Wornick Co. v. Casas , 856 S.W.2d 732, 733 (Tex. 1993).

A matter is conclusively established if ordinary minds cannot differ as to the *17 conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc ., 644 S.W.2d 443, 446 (Tex. 1982). After the movants have established a right to summary judgment, the burden shifts to the nonmovants to present evidence creating a fact issue. Denson v. Dallas County Credit Union , 262 S.W.3d 846, 849 (Tex. App.--Dallas 2008, no pet.).

2. No Evidence Summary Judgment Review The standard for reviewing a no-evidence summary judgment is the same

legal sufficiency standard used to review a directed verdict. See Tex. R. Civ. P. 166a(i); Flood v. Katz , 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). Accordingly, this Court must determine whether the nonmovant—here, the Appellant--produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Flood , 294 S.W.3d at 762.

A no-evidence summary judgment is improperly granted if the respondent— here, the Appellant—has brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). "More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions." Id . (quoting Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so *18 weak as to do no more than create a mere surmise or suspicion' of a fact." Id . (quoting Kindred v. Con/Chem, Inc ., 650 S.W.2d 61, 63 (Tex. 1983)).

Appellant–as non-movant responding to a no-evidence motion for summary judgment–is not required to have marshalled her proof, but need only have pointed out evidence that raises a fact question on the challenged elements. See Saenz. v. Southern Union Gas Co. , 999 S.W.2d 490, 493-94 (Tex. App.–El Paso 1999, no pet.); see also Comments to Tex. R. Civ. P. 166a(i).

3. Summary Judgment review in general In deciding or reviewing either a traditional or no-evidence motion for

summary judgment, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in the non-movant’s favor. See Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548 (Tex. 1985); Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (quoting City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005)).

Thus, the Appellant should prevail in this case on both the traditional motion for summary judgment and the no-evidence motion for summary judgment if the summary judgment evidence contains more than a scintilla of evidence to raise a genuine issue of material fact for each of the challenged theories of recovery. *19 B. The Trial Court Erred in Granting MJM’s Traditional Motion for

Summary Judgment Appellee MRM’s summary judgment evidence failed to conclusively negate

vicarious liability under any of the Appellant Stroup’s theories of recovery, including respondeat superior, joint enterprise, and statutory liability. The summary judgement evidence raised, at a minimum, a genuine issue of material fact as to each theory. Therefore, the trial court erred in granting Appellee MRM’s traditional motion for summary judgment.

1. Appellee MRM has failed to conclusively negate respondeat superior liability Appellee MRM’s Traditional Motion for Summary Judgment argued that the summary judgment evidence conclusively established that Defendant Taylor was an independent contractor, and thus not MRM’s employee. Supp. CR 206-207. In support of this proposition, Appellee MRM points to an independent contractor agreement that Taylor signed, and further argued that the Court should apply a multi- factored test pursuant to, inter alia , Pitchfork Land & Cattle v. King . Supp. CR 206; See Pitchfork Land and Cattle Co. v. King , 346 S.W.2d 598, 602-03 (Tex. 1961) ; see also Appendix Ch. 2 (independent contractor agreement).

Plaintiff would show that the independent contractor agreement is void to the extent it conflicts with the Texas Occupation Code’s statutory mandate that real *20 estate brokers answer for their salespersons’ tortious conduct.

Additionally, Plaintiff will show that Defendant MRM should be estopped from using the independent contractor agreement to shield itself from liability that the agreement itself places at the feet of Defendant MRM.

Finally, even assuming the multifactored Pitchfork test were the only consideration for the question of respondeat superior liability, the summary judgment evidence presents genuine issues of material fact within the application of that test.

a. The independent contractor agreement cannot override the broker’s responsibility under Texas law MRM’s main argument against respondeat superior liability is the independent contractor agreement that Defendant Taylor signed. However, the independent contractor agreement is void to the extent it conflicts with the Texas Occupation Code’s statutory mandate that real estate brokers answer for their salespersons’ tortious conduct.

Chapter 1101 of the Texas Occupations Code is known as the Texas Real Estate License Act (hereafter “the Act”). See Tex. Occ. Code § 1101 et seq.; See also Appendix Ch. 3. The Act sets forth the authority, professional standards, and licensure requirements for persons and entities engaged in real estate transactions in *21 Texas, including real estate “brokers” and “salespersons”. Id .1 In general terms, the Act defines “brokers” as persons who are paid to perform certain acts (referred to herein as “broker acts”) for others. See Tex. Occ. Code § 1101.002(1). Those broker acts are presented within a statutory laundry list that covers virtually all of the things the general public would commonly understand to be the job of a “realtor” including: buying and selling real estate; listing real estate; locating real estate; procuring prospects to accomplish the sale of real estate; and promoting the sale of real estate. Id.

The Act defines a “salesperson” as a person who is sponsored by a licensed broker for the purpose of performing the above [broker] acts. See Tex. Occ. Code § 1101.002(7). Further, the Act states that “[a] licensed salesperson may not engage or attempt to engage in real estate brokerage unless the sales agent is sponsored by a licensed broker and is acting for that broker . Tex. Occ. Code § 1101.351(c) (emphasis added).

In other words, all aspects of all real estate transactions in Texas are technically carried out by real estate brokers, or by salespersons who are authorized to engage in real estate brokerage for their sponsoring broker on the brokers’ 1 The Occupations Code was revised effective January 1, 2016 (after the subject crash). Under the revision, the term “salesperson” was changed to “sales agent”. The code provisions cited herein were otherwise unchanged. *22 behalves. As such, the Act establishes a master-servant relationship as a matter of law, and assigns legal responsibility for all statutory broker acts to the brokers. Section 1101.803 of the Act states “[a] licensed broker is liable to the commission, the public , and the broker's clients for any conduct engaged in under this chapter by the broker or by a salesperson associated with or acting for the broker . Tex. Occ. Code § 1101.803 (emphasis added).

The Act contains no provision authorizing brokers to contractually assign that responsibility back to the salespersons, and thus brokers like Defendant MRM have a non-delegable duty to the public for the conduct of salespersons associated with Defendant MRM.

Therefore, any agreement that purports to characterize a salesperson’s relationship to her sponsoring broker as that of an independent contractor is simply void and unenforceable for the purposes of vicarious liability. Although Plaintiff could locate no cases in which such a contract has been deemed void in Texas, Plaintiff would point the court to persuasive authority in California, where a similar statute was construed to void a realtor’s independent contractor agreement with his sponsoring broker. See Gipson v. Davis Realty Co. , 215 Cal. App. 2d 190 (1963) ; See Appendix Ch. 3.

*23 Because Defendant MRM’s traditional motion for summary judgment relative to the theory of respondeat superior is entirely predicated on the argument that Defendant Taylor should be characterized as an independent contractor, and because that characterization is statutorily prohibited, Defendant MRM’s motion should be denied.

b. Because it dissuaded Taylor from purchasing additional insurance, MRM should be estopped from using the independent contractor agreement to escape exposure that Taylor would otherwise have insured

Even if the independent contractor agreement cited by Appellee MRM were deemed enforceable, the agreement on its face implies that MRM will accept a large share of liability for Defendant Taylor’s conduct. Supp. CR 267-273; See Appendix Ch. 4. Because the misleading document dissuaded Defendant Taylor from purchasing additional insurance, or from investigating the need for same, MRM should be estopped from using the independent contractor agreement to shield itself from the exposure presented by Appellant’s claims. Id.

Section D within page 4 of the subject agreement states that “for risks…arising from Agent’s negligent…breach of any law, regulation, or standard of conduct that applies to Agent’s actions or activities as a licensed real estate sales associate, Agent agrees to indemnify and hold [Appelle MRM] harmless from and *24 against that percentage of Liability that equals the percentage of commissions payable to the Agent on the date of the incident or omission that gave rise to the Liability occurred.” Id (emphasis added) . Section B goes on within that same page to define “Liability” to mean “all liability, claims, damages, losses, costs and expenses that a party sustains or incurs as a result of or in connection with a particular incident or situation”. Id. Thus, for “[all] damages”, “[all] claims”, and “[all] losses that a party sustains” MRM only requires its agents to indemnify MRM or hold MRM harmless from a (capped) portion of MRM’s liability. See Id.

This reads like a co-insurance requirement. One can imagine Dominos Pizza telling its delivery drivers: “If you cause a crash, you must forfeit a portion of your delivery tip to cover Dominos’ exposure”. Most delivery drivers would take that to mean Dominoes was assuming responsibility for the rest of the exposure, or that Dominos anticipated it would be vicariously liable for the driver’s conduct. The same applies here, especially when viewed within the totality of the circumstances of MRM’s sponsorship of Taylor’s license, including:

(1) MRM’s requirement that Taylor insure her car to a certain level, and to have (MRM’s trade name) Keller Williams named as an additional insured; CR 375 (59:4-8); and

*25 (2) the express vicarious liability requirement stated in the Texas Real Estate License Act through which Taylor obtained her license. See Tex. Occ. Code § 1101.803 (stating “[a] licensed broker is liable to… the public… for any conduct engaged in under this chapter by… a salesperson associated with or acting for the broker).

The clear implication of this agreement is that MRM anticipated its own liability for losses arising from the agent’s negligence, and viewed that risk as a routine part of its business. It only asked the agent to cover a portion of the MRM exposure. Under the agreement, the agent’s percentage of responsibility for “all claims” against MRM could never exceed the commission that she earned on the day of the subject negligence. See Supp. CR 267-273; see Appendix Ch. 4.

To the extent Defendant Taylor was consciously or subconsciously mislead by this agreement, and otherwise might have secured additional liability insurance for herself, Defendant MRM should be estopped from using the agreement to shield itself from the master-servant liability that the agreement implies is MRM’s.

c. Fact questions abound in the determination of the independent-contractor question Even if the Court finds the Occupations Code inapplicable, the question of whether Defendant Taylor was an employee or independent contractor, is a factually *26 intense, multi-factored inquiry. Appellee’s MRM’s evidence fails to conclusively establish that Defendant Taylor was an independent contractor under the “ Pitchfork ” factors urged by MRM. Those factors are: (1) the independent nature of the contractor’s business; (2) the contractor’s obligation to supply necessary supplies, tools, and materials; (3) the contractor’s right to control the progress of the work; (4) the actual control exercised by the employer; (5) the permanency of the work relationship; (6) whether the parties believe they are creating an employer-employee relationship; (7) the time for which she is employed; and (8) the method by which she is paid. See Pitchfork Land and Cattle Co. v. King , 346 S.W.2d 598, 602-03 (Tex. 1961); see also Home Interiors & Gifts, Inc. v. Veliz , 695 S.W.2d 35, 41 (Tex. App.-Corpus Christi 1985, writ ref. n.r.e.).

Appellant would show the court the following genuine issues of material fact concerning those same factors: i. The independent nature of Taylor’s business Texas law prohibits Defendant Taylor from engaging in any real estate business without Appellee MRM’s sponsoring brokerage. Further, all of Defendant Taylor’s real estate related activities would be illegal “unless [she] is sponsored by a licensed broker and is acting for that broker .” See Tex. Occ. Code § 1101.351(c) *27 (emphasis added); See also above Section B(1)(a) of Appellant’s Brief, describing the linkage between real estate salespersons and brokers created by the Texas Real Estate License Act, and fact that virtually all known real estate related activities are legally the actions of real estate brokers like MRM. Therefore, the nature of Defendant Taylor’s real estate business is to be completely dependent upon Appellee MRM’s sponsoring brokerage.

ii. Taylor’s obligation to supply necessary supplies, tools, and materials Appellee MRM supplied Taylor with a business card (showing Appellee’s MRM’s trade name Keller Williams, and describing her as a Keller Williams “Real Estate Agent”). Supp. CR 337. Defendant MRM supplied training, including a dedicated training agent and training book, software training, a website containing training materials, videos, forms, calculators, and kits. Supp. CR 306-11 (17:13- 18:12;19:16-19;23:7-24:7). Defendant MRM also supplied software for electronically managing Taylor’s real estate transactions. Supp. CR 308-09 (19:16- 20:3). Defendant MRM also supplied packets and checklists to realtors like Taylor to guide them through, e.g., the listing process and open houses. Supp. CR 373-74 (57:8-58:6).

*28 iii. Taylor’s right to control the progress of her work Most employees who are licensed professionals, whether realtors, engineers, attorneys, or insurance adjusters, are likely to enjoy a high level of autonomy even while remaining subject to their employer’s right of control. As such, it is no surprise that Defendant Taylor was empowered to manage her real estate transactions with a high degree of professional independence. It is telling, however, that Appellee MRM nonetheless subjected her to a number of policies and procedural requirements, the violation of which could be considered a “fire-able offense.” Supp. CR 375 (59:4- 10). Many of those policies are contained in the Keller Williams Policies and Guidelines manual, excerpts from which are attached hereto See Supp. CR 379-93; Appendix Ch. 5. That document, on page 1-1, starts off with a dramatic, if vague, definition of “interdependence”, which quotes Stephen Covey to directly refute the concept of “independence” in favor of the more magical paradigm of “interdependence”. See Id. That interdependence is evident from the numerous ways that Defendant MRM exercised control over Taylor including:

• Requiring Taylor to insure her car to a certain level, and to have Keller Williams named as an additional insured. Defendant Taylor; Supp. CR 375 (59:4-8).

*29 • Requiring Taylor to keep her car clean (this one is particularly relevant in this case as Ms. Taylor was—in addition to conducting other real estate business—looking for a car wash at the time of the subject crash); Supp. CR 333 (101:7-24); See also Supp. CR 389 ¶ 1-2; See generally Supp. CR 267-273 and specifically Supp. CR 267 ¶ 3.

• Creating “standards” that Appellee MRM alleges Taylor violated including the standard of turning in listing agreements within 3 days of execution, refraining from performing manual labor on real property, and refraining from hiring contractors to perform work. Supp. CR 368- 72 (49:22-52:3).

iv. The actual control exercised by Defendant

MRM

As partly-described in the preceding section, Defendant MRM exercised control over its agents by contractually binding them to follow the aforementioned 100-plus page Policies and Guidelines manual. Supp. CR 333 (101:7-24); see generally Supp. CR 267-273 and specifically CR 267 ¶ 3; see also Appendix Ch. 5. This was not just a handout, but something the agents had to agree in writing to follow. Id. Within the manual, control is exerted in the form of, e.g., section “4.9.1.12 Conduct” which governs alcohol consumption, conduct at the market *30 center, and cooperation with other brokers. Supp. CR 366-67 (16:17-17:2); Appendix Ch. 5. Likewise, the preceding section of this brief gives examples of policies within the manual concerning the maintenance of a certain level of automobile insurance covering MRM, and the need for agents to keep their cars clean. The manual further instructs Taylor to, e.g., contact her sellers at least once per week. See Supp. CR 390 ¶ 5 (Section 4.9.1.20.2). Further, in Section 4.9.1.20.3, the manual instructs Taylor to maintain complete and accurate records, and, in clear employer-speak, admonishes Taylor in bold letters that “ there is no excuse for the violation of this guideline by any associate ”. See Supp. CR 390 ¶ 6 (Section 4.9.1.20.3).

Oddly, that bold admonition uses the watered-down term “guideline” instead of the stronger, more accurate term “policy.” This is a transparent attempt by Appellee MRM to enjoy absolute control without having to be responsible for that control. This theme is repeated in Appellee MRM’s corporate representative Jessica Tenant’s deposition. Although her lawyers sent requests for admissions to Defendant Taylor asking Taylor to admit that “Keller Williams associates should not perform repair work for listed properties”, Ms. Tenant testified that that is “not a demand”, but rather “a professional standards suggestion.” Supp. CR 369-71 (50:13-52:1); Supp. CR 395-399. Likewise, when she was asked about her lawyers’ request that *31 Defendant Taylor admit that Taylor was not allowed to hire contractors without Keller Williams’ [MRM’s] express consent, Ms. Tenant backtracked and said that there actually is no written policy on that, but that Defendant Taylor should have talked to [Appellee MRM] about it. Id.

Such vagueness should not benefit the party who created it, especially in the context of summary judgment. v. The permanency of the working relationship Defendant Taylor’s real estate license has been solely sponsored by Appellee MRM for nearly 10 years. Supp. CR 303-04 (6:7-7:18). vi. Whether the parties believe they are creating an employer-employee relationship As pointed out in Appellee’s Motion for Summary Judgment, Defendant Taylor has stated she believes she was an independent contractor. Supp. CR 211 ¶ 1. However, she is also a lay witness. She has no reason to doubt the force and effect of the independent contractor agreement she was made to sign when she joined MRM. As above, Appellant Stroup maintains that the agreement is misleading and void. Moreover, to the extent Taylor’s subjective belief about her employment status was misinformed by Appellee MRM, her subjective belief should be given little if any weight.

*32 vii. The time for which Taylor was employed As above, Defendant Taylor’s real estate license has been solely sponsored by Appellee MRM for nearly 10 years. Supp. CR 303-04 (6:7-7:18). viii. The method by which Taylor was paid All of Taylor’s compensation was paid by Appellee MRM (or its dba Keller Williams). Supp. CR 372 (55:4-55:6). Putting all of the above factors together, it is clear that genuine issues of material fact exist as to whether Defendant Taylor was an independent contractor or an employee. The trial court therefore erred in granting Appellee MRM’s traditional motion for summary judgment.

2. Appellee MRM has failed to conclusively negate joint- enterprise liability In both its traditional and no evidence motions, Appellee MRM argues there is no evidence supporting the existence, and no fact questions as to the absence of, a joint enterprise through which Appellant Stroup could hold Appellee MRM vicariously liable for Defendant Taylor’s actions. Supp. CR 143-44; 213-14.

Appellant Stroup agrees with the elements as stated in Appellee’s motion, and that for joint-enterprise liability to attach, Appellant must establish: an agreement; a common purpose; a community of pecuniary interest; and an equal right of control *33 between Defendant Taylor and Appellee MRM. See Supp. CR 143-144; Texas DOT v. Able , 35 S.W.3d 608, 613 (Tex. 2000). Appellant also agrees that Appellant must establish that Taylor was acting within the scope of that joint enterprise to hold Appellee MRM vicariously liable. Supp CR 143-144; see also Aluminum Chemicals, Inc. v. Bechtel Corp. , 28 S.W.3d 64, 67 (Tex. App.--Texarkana 2000, no pet.)

Appellee MRM has wholly failed to offer evidence conclusively negating any of those elements within its traditional motion for summary judgment. As such the traditional motion for summary judgment should be denied on its face. Within its no-evidence motion, Appellee MRM did not challenge the elements of agreement, common purpose, or community of pecuniary interest. Instead MRM’s no-evidence motion has challenged the elements of (1) equal right of control; and (2) acting in the scope of the joint enterprise. Supp. CR 216-217. As to equal right of control, there is ample evidence, as described above, that Taylor was contractually bound to follow MRM’s policies including keeping her car clean, and that she was doing exactly that leading up to the crash. Appellee MRM, who is charged by the Texas Occupations Code with responsibility for the salesperson Taylor’s actions, and who promulgated policies for its agents to follow, clearly had the ability and right to tell Taylor what to do in connection with buying and listing real estate. Meanwhile MRM’s corporate representative Jessica Tennant has testified *34 that the agent’s leadership committee was developed so that agents would “…have a voice in the decision-making and how the office was run…” Supp. CR 371 (52:6- 21).

As for the question of scope, there is ample evidence that in a broad sense, Taylor had traveled to east Austin from Lakeway Texas with the intent of devoting the entire weekend of the crash to performing work on the property she was listing at 2705 Crest Avenue. Supp. CR 318 (59:3-9). Taylor was the listing agent, and Keller Williams Realty (trade name for Defendant MRM) was listed as the broker on the listing agreement. Supp. CR 352-360.

The morning of the crash, Defendant Taylor had met with the head landscaping worker, and had driven with him to Home Depot where she purchased supplies including a chainsaw and chainsaw oil for use by the landscapers on the subject house. Supp. CR 319-23 (60:17-61:9:4; 62:24-63:2; 63:19-64:12). The plan was to clear trees to open up the view in order to improve the marketing of the property. Supp. CR 322-23 (63:25-64:12). Taylor went to the hotel to check in with him following the couple’s trip to Home Depot. Supp. CR 326 (70:11-22). Given that Ms. Taylor testified that she was having an affair with the landscaper, there is a fact question about whether she would have deviated from her real estate activities at some point for romantic activities before returning to the enterprise of marketing *35 2705 Crest Ave. However, this red-hearing question would exist with any couple who happened to work together. There is absolutely no evidence that the couple in this case did anything but work on the day of the crash.

The summary judgment evidence shows that Taylor went to Home Depot, returned to check in at the hotel with the landscaper (in anticipation of a multiple- day job), dropped her stuff in the room, and was getting ready to return to the worksite at 2705 Crest Avenue. At that point she decided to move her car out of the sun, and in so doing, to peer around for a nearby car wash. Supp. CR 326-28 (70:23- 72:3). Importantly, the logical reason for her to move her car out of the sun at that moment was that the couple was about to take the landscaper’s truck back to 2705 Crest Ave, leaving her car where it was parked in the August sun. Supp. CR 326 (70:11-71:3). Thus, even if a romantic detour had occurred after the trip to Home Depot (which is contrary to what Taylor testified to), she was at a minimum re- engaging with the enterprise of marketing 2705 Crest Avenue, the property for which she was the contractual listing agent and Appellee MRM was the contractual broker.

The Defendant’s suggestion that by looking for a car wash, Taylor somehow deviated from her joint enterprise with MRM—when keeping one’s car clean was an express directive from MRM—is clearly well short of conclusive. The fact that *36 Taylor didn’t plan to meet potential buyers that day is also irrelevant given that she agreed in her deposition that the active makeover of the 2705 Crest Ave property presented opportunities to discuss the impending sale with neighbors, who might themselves be interested in selling property that Taylor could list, and which Defendant MRM could make money from. Supp. CR 329-31 (76:21-78:23). Ultimately, Defendant Taylor testified that she believes she was engaged in the selling of real estate at the time of the subject crash. Supp. CR 329 (76:21-24).

3. Appellee MRM has failed to conclusively negate liability under the Texas Occupations Code Above, in Section B(1)(a) of this Brief, the applicability of the Texas Occupations Code is discussed as a reason for voiding the independent contractor agreement in this case. That information is repeated here for ease of reference and in order to expand the argument.

Repeated text: Chapter 1101 of the Texas Occupations Code is known as the Texas Real

Estate License Act (hereafter “the Act”). See Tex. Occ. Code § 1101.001. The Act sets forth the authority, professional standards, and licensure requirements for persons and entities engaged in real estate transactions in Texas, including real estate “brokers” and “salespersons”. See Tex. Occ. Code. § 1101 et seq. In general terms, *37 the Act defines “brokers” as persons who are paid to perform certain acts (referred to herein as “broker acts”) for others. See Tex. Occ. Code § 1101.002(1). Those broker acts are presented within a statutory laundry list that covers virtually all of the things the general public would commonly understand to be the job of a “realtor” including: buying and selling real estate; listing real estate; locating real estate; procuring prospects to accomplish the sale of real estate; and promoting the sale of real estate. Id. The Act defines a “salesperson” as a person who is sponsored by a licensed broker for the purpose of performing the above [broker] acts. See Tex. Occ. Code § 1101.002(7). Further, the Act states that “[a] licensed salesperson may not engage or attempt to engage in real estate brokerage unless the sales agent is sponsored by a licensed broker and is acting for that broker . Tex. Occ. Code § 1101.351(c) (emphasis added).

In other words, all aspects of all real estate transactions in Texas are technically carried out by real estate brokers, or by salespersons who are authorized to engage in real estate brokerage for their sponsoring broker on the brokers’ behalves. As such, the Act establishes a master-servant relationship as a matter of law, and assigns legal responsibility for all statutory broker acts to the brokers. Section 1101.803 of the Act states “[a] licensed broker is liable to the commission, the public , and the broker's clients for any conduct engaged in under this chapter by *38 the broker or by a salesperson associated with or acting for the broker . Tex. Occ. Code § 1101.803 (emphasis added).

Consequently, any agreement that purports to characterize a salesperson’s relationship to her sponsoring broker as that of an independent contractor is simply void and unenforceable for the purposes of vicarious liability. Although Plaintiff could locate no cases in which such a contract was voided in Texas, Plaintiff would point the court to persuasive authority in California, where a similar statute was construed to void a realtor’s independent contractor agreement with his sponsoring broker. See Gipson v. Davis Realty Co., 215 Cal. App. 2d 190 (1963) . See Appendix Ch. 3.

New text: In its traditional and no evidence motion for summary judgment, Appellee

MRM asserts that the summary evidence shows Defendant Taylor was not associated with or acting for Appellee MRM at the time of the subject crash; and that there is no evidence Taylor was engaged in one of the acts specified in Section *39 1101.002(1) of the Texas Occupations Code. Supp. CR 214 ¶ 2; Supp. CR 217 ¶ 3.

Due to the linkage of the law as described above, if Taylor was performing one of the acts described in 1101.002(1), then she automatically had to be doing it for Appellee MRM pursuant to Section 1101.351(c). Thus, answering the question of whether she was engaged in an act described by Section 1101.002(1) answers the question of “acting for or associated with.”

Section 1101.002(1) provides the following list of acts that the law deems the acts of the broker, whether performed by the broker or by a salesperson associated with the broker, as long as they are performed with the expectation of compensation for another:

“(A)….

(i) sells, exchanges, purchases, or leases real estate; (ii) offers to sell, exchange, purchase, or lease real estate; (iii) negotiates or attempts to negotiate the listing, sale,

exchange, purchase, or lease of real estate; (iv) lists or offers, attempts, or agrees to list real estate for sale, lease, or exchange; (v) auctions or offers, attempts, or agrees to auction real estate; (vi) deals in options on real estate, including a lease to purchase or buying, selling, or offering to buy or sell options on real estate;

(vii) aids or offers or attempts to aid in locating or obtaining real estate for purchase or lease; (viii) procures or assists in procuring a prospect to effect the sale, exchange, or lease of real estate; (ix) procures or assists in procuring property to effect the *40 sale, exchange, or lease of real estate; (x) controls the acceptance or deposit of rent from a resident of a single-family residential real property unit;

(xi) provides a written analysis, opinion, or conclusion relating to the estimated price of real property if the analysis, opinion, or conclusion: (a) is not referred to as an appraisal; (b) is provided in the ordinary course of the

person's business; and (c) is related to the actual or potential management, acquisition, disposition, or encumbrance of an interest in real property; or

(xii) advises or offers advice to an owner of real estate concerning the negotiation or completion of a short sale; and

(B) includes a person who: (i) is employed by or for an owner of real estate to sell any portion of the real estate; ...” See Tex. Occ. Code § 1101.002(1) (emphasis added). The underlined portions reflect the sections applicable to Taylor’s efforts on the day of the subject crash. As described in detail above, within section B(2) concerning joint-enterprise, Taylor admitted to having an affair with the landscaper. Putting aside the propriety of that relationship from the standpoint of Defendant Taylor’s marriage, this was a couple— boyfriend and girlfriend—who were in East Austin to perform landscaping work in service of selling real estate. They spent the entire day oriented towards the marketing 2705 Crest Avenue for Appellee MRM. They were both over an hour from their respective homes in Spicewood and Lakeway, and were facing the *41 prospect of a large multi-day job. They obtained a hotel room to cope with that fact. Leading up to the crash Taylor and the landscaper’s activities could be summarized as:

• they tried to check in at the hotel first thing in the morning, but couldn’t get in; Supp. CR 324-326; 328 (67:13-68:13; 70:11-22). • they took the landscaper’s truck to Home Depot to get a chainsaw and other supplies for the job ahead; Id. • they returned to the hotel where they checked in, and set their bags down in the room; Id. • from there, Defendant Taylor went outside to move her car out of the sun. (Note that a jury would be entitled to conclude that Taylor was likely moving her car because she and the landscaper were about to take his truck to the listed property in order to commence work. Rather than a detour, this remains consistent with working on the property. Moving her car was a logical first step in commencing work at the listed property); Id. (67:6-12; 70:11-22).

• at some point as she is moving her car, Taylor decides to look to see if a car wash is nearby. (This detour, if it was a detour at all, is incidental and nonetheless consistent with directives from the defendant for *42 agents to keep their car clean); Supp. CR 327 (71:4-22).

• Taylor ends up on the apron of the hotel driveway, peering around for a touchless carwash; Id. • She decides to exit the property and re-enter at the hotel one driveway to the west, rather than reversing within the parking lot; Id. • At that point she negligently pulls directly in front of the Plaintiff’s motorcycle, which was traveling eastbound on Oltorf Street, resulting in devastating injuries to Plaintiff. Supp. CR 314-317 (33:18-21; 34:24- 36:18); See also police report at Supp. CR 347-48; See Appendix Ch.7.

What is clear from these events is that Defendant Taylor was in east Austin from far-off Lakeway because she was generally engaged in “selling real estate” as specified in Section 1101.002(1)(A)(i), and/or she was “offering” to sell real estate under Section 1101.002(1)(A)(ii), and/or she was “listing” real estate under Section 1101.002(1)(A)(iv). She could also be said to be continually engaged in procuring property (she was coming back from getting the chainsaw and other materials) to effectuate the sale of real estate, as specified in Section 1101.002(1)(A)(viii). For all of this, she was at all times employed by the owner of the real estate, Reginald Taylor, to sell the real estate pursuant to Section 1101.002(1)(B)(i). Therefore, Appellee MRM has failed to conclusively negate this theory of liability and Plaintiff *43 is entitled to trial on the merits. 4. Texas Labor Code jurisprudence is persuasive in favor of ‘course and

scope’ versus ‘detour’ for each of Appellant’s theories of recovery. Plaintiff has located no direct case law to guide the Court as to the ‘detour’

boundaries of “course and scope” within the context of the Texas Real Estate License Act, or joint-enterprise liability. However, Texas Courts have long analyzed questions arising from worker “detours”, “special missions”, and “dual purpose travel” within the context of the Texas Labor Code. Those cases are persuasive to the extent they address Texas public policy questions about who should bear risks that arise from business activity in Texas. See e.g., Tex. Mut. Ins. Co. v. Jerrols , 385 S.W.3d 619 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd); Zurich Am. Ins. Co. v. McVey , 339 S.W.3d 724 (Tex. App.—Austin 2011, pet. denied).

a. The dual purpose rule Texas Courts have followed the “dual purpose rule”, which holds that dual-

purpose travel (combined personal and business travel) is within the course and scope of employment if: (1) the travel to the place of occurrence, here Lakeway to east Austin, or even Home Depot to the La Quinta hotel, or even Taylor’s initial parking spot to the crash location, would have occurred even if no personal or private affairs were furthered by the travel; and (2) the travel would not have occurred had *44 there not been affairs of the business to be furthered by the travel. See Tex. Mut. Ins. Co. v. Jerrols , 385 S.W.3d 619, 625 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd)

If such a rule were followed here, the fact of Defendant Taylor’s affair with the landscaper would be inconsequential in view of the fact that Taylor’s presence in east Austin that day would have occurred even if she selected a different landscaper to complete the work, and would not have occurred but for the business interests that were furthered in improving a property that was listed for sale by Defendant Taylor and Appellee MRM. Likewise, Taylor moving her car out of the sun in preparation for taking the landscaper’s truck from the hotel to the jobsite was part of the job. Likewise, Taylor taking the opportunity to peer around for car washes while moving her car, does not rise to the level of a distinct personal errand that would remove her from the course and scope of her employment (or joint enterprise activities, or real estate activities), especially in view of MRM’s directive requiring agents like Taylor to keep their cars clean as a part of their work.

b. The continuous coverage doctrine This Court’s own Labor Code jurisprudence has repeatedly affirmed the

“continuous coverage” doctrine for out-of-town business travel. “An employee is generally within the course and scope of his employment when the employer's *45 business requires him to travel away from the employer's premises.” Zurich Am. Ins. Co. v. McVey , 339 S.W.3d 724, 731 (Tex. App.—Austin 2011, pet. denied)( citing Shelton v. Standard Ins. Co. , 389 S.W.2d 290, 293-94 (Tex. 1965); Aetna Cas. & Sur. Co. v. Orgon , 721 S.W.2d 572, 574-75 (Tex. App.—Austin 1986, writ ref'd n.r.e.).

“In fact, relying on what has come to be known as the "continuous coverage" rule, the supreme court and this Court have both held that the course and scope of employment in cases of overnight travel is broad, extending even beyond the actual act of travel itself to include injuries sustained during ‘down time.’” Id. (citing Shelton , 389 S.W.2d at 293-94 (employee injured crossing street from hotel to restaurant was in course and scope); Orgon , 721 S.W.2d at 575 (employee injured by broken glass in hotel was in course and scope).

As such, if this were a workers’ compensation case, it is clear that Texas law would allocate the risk of injury to the business whose interest was furthered by Taylor’s travel to east Austin from Lakeway—in this case Appellee MRM.

In any case, this Court has previously instructed that that, generally speaking, “[c]ourse and scope of employment is . . . a fact issue like negligence or proximate cause.” Arbelaez v. Just Brakes Corp. , 149 S.W.3d 717, 720 (Tex. App. – Austin 2004, no pet.).

*46 In sum, there are, at a minimum, genuine issues of material fact as to whether Taylor was performing an act that would bring her within the scope of the Texas Occupations Code’s requirement that real estate brokers like MRM answer for the tortious conduct of their salespersons. The same is true for respondeat superior liability, and joint-enterprise liability. C. The Trial Court Erred in Granting MRM’s No Evidence Motion for

Summary Judgment Because Appellee MRM’s traditional motion for summary judgment concerns

the same theories of liability attacked in its no evidence motion for summary judgement, Plaintiff’s above responses to Appellee MRM’s traditional motion are already responsive to Appellee’s No Evidence Motion for Summary Judgment, and are hereby incorporated by reference. The same evidence cited above that raises genuine issues of material fact, likewise presents more than a scintilla of evidence for each of the elements challenged within Appellee MRM’s no-evidence motion. As such, the trial court erred in granting Appellee’s no-evidence motion for summary judgment.

PRAYER

Appellee MRM has failed to offer sufficient evidence to conclusively negate its vicarious liability for the tortious conduct of Defendant Taylor. Therefore, the *47 trial court erred in granting Appellee MRM’s Traditional Motion for Summary Judgement.

Further, the summary evidence meets and exceeds the level that would enable reasonable and fair-minded people to differ in their conclusions with respect to each of the challenged elements within Appellant Stroup’s theories of vicarious liability, including respondeat superior, joint enterprise, and statutory vicarious liability. Because Stroup presents more than a scintilla of evidence to support each of the challenged elements of Stroup’s cause of action, Appellee’s no-evidence motion for summary judgment was improperly granted, and Stroup is entitled to a trial on the merits.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reverse the order of the trial court granting Defendant’s Traditional and No-Evidence Motion for Summary Judgment, and for such other and further relief to which Appellant’s may be entitled.

*48 Respectfully submitted, FOGELMAN & VON FLATERN, LLP 3101 Bee Cave Road, Suite 270 Austin, Texas 78746 (512) 375-3198 (512) 372-3209 (telecopier)

By: /s/ Aaron von Flatern Aaron von Flatern State Bar No. 24076892 aaron@fvlawfirm.com

COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

*49 The undersigned certifies that on January 1, 2018 a true and correct copy of the above and foregoing was served via electronic filing to all counsel below: WALTERS, BALIDO & CRAIN, L.L.P. Gregory R. Ave Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 AveEdocsNotifications@wbclawfirm.com

COUNSEL FOR APPELLEE

/s/ Aaron von Flatern Aaron von Flatern

CERTIFICATE OF COMPLIANCE

I certify that this document contains 9,095 words (counting all parts of the document). The body text is in 14 point font, and the footnote text is in 12 point font. /s/ Aaron von Flatern Aaron von Flatern

APPENDIX

*50 I. Judgment on appeal II. Tex. Occ. Code Excerpts III. Gibson v. Davis Realty

IV.

Independent Contractor Agreement V. Keller Williams Policies and Guidelines VI. Listing Agreement VII. Police Report

*51 I. Judgment on Appeal

Filed in The District Court

*52 of Travis County, Texas ..:i:;;: FEB 2 _8 2017 -/ ft- ~a,~- CAUSE NO . D-1-GN-15-004909 At Velva L. Pee; Distric Clerk SARAH DENISE STROUP, AS LEGAL § IN THE DISTRICT COURT OF GUARDIAN OF DOUGLAS LEE STROUP, § AN INCAPACITATED PERSON §

§ vs. TRAVIS COUNTY, TEXAS § §

PENNY HARRINGTON TAYLOR AND § MRM MANAGEMENT, INC. § 9g th JUDICIAL DISTRICT ORDER GRANTING DEFENDANT, MRJ\1 MANAGEMENT, INC.'S FIRST AMENDED

TRADITIONAL AND NO-EVIDENCJB: MOTION FOR SUMMARY JUDGMENT On February 22, 2017, the Court considered Defendant MRM Management, Inc.'s First Amended Traditional and No-Evidence Mot ion for Summary Judgment (the "Motion") . After reviewing the Motion , Plaintiffs Response , the evidence presented , the arguments of counsel, and applicable law, the Court is of the opinion that the Motion should be and is hereby

GRANTED.

IT IS THEREFORE ORDERED that Defendant MRM Management , Inc. 's First Amended Traditional and No-Evidence Mot ion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiffs claims against Defendant MRM Management , Inc. are DISMISSED with prejudice. -rv SIGNED this ')J day of February 20 17. 111111111111111111111111111111111111111111111111 IIII IIII 005071659

ORDER GRANTING DEFENDANT, MRM MANAGEMENT, INC.'S FIRST AMENDED TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

*53 II. Tex. Occ. Code Excerpts *54 · LexisNexis· User Name: aaronvonflatern Date and Time: Thursday, December 28, 2017 10:36:00 AM CST Job Number: 58744145 Documents (4) 1. Tex. Occ. Code § 1101.001

Client/Matter: -None- Search Terms: Search Type:

2. Tex. Occ. Code § 1101.002 Client/Matter: -None- Search Terms: Search Type:

3. Tex. Occ. Code § 1101.351 Client/Matter: -None- Search Terms: Search Type:

4. Tex. Occ. Code § 1101.803 Client/Matter: -None- Search Terms: Search Type:

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® > Occupations Code > Title 7 Practices and Professions Related to Real Property and Housing > Subtitle A Professions Related to Real Estate > Chapter 1101 Real Estate Brokers and Sales Agents [Expires September 1, 2019] > Subchapter A General Provisions [Expires September 1, 2019] Sec. 1101.001. [Expires September 1,

2019] Short Title.

This chapter may be cited as The Real Estate License Act.

History Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B. 2813), § 2, effective June 1, 2003. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2017 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

End of Document *56 Tex. Occ. Code § 1101.002

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

estate; Texas Statutes & Codes Annotated by LexisNexis® > (vii) aids or offers or attempts to aid Occupations Code > Title 7 Practices and Professions in locating or obtaining real Related to Real Property and Housing > Subtitle A estate for purchase or lease; Professions Related to Real Estate > Chapter 1101 Real Estate Brokers and Sales Agents [Expires

(viii) procures or assists in September 1, 2019] > Subchapter A General procuring a prospect to effect Provisions [Expires September 1, 2019] the sale, exchange, or lease of real estate;

Sec. 1101.002. [Expires September 1, (ix) procures or assists in procuring property to effect the sale, 2019] Definitions.

exchange, or lease of real estate;

In this chapter: (x) controls the acceptance or (1) “Broker”: deposit of rent from a resident of a single-family residential real (A) means a person who, in exchange property unit; for a commission or other valuable consideration or with the (xi) provides a written analysis, expectation of receiving a opinion, or conclusion relating commission or other valuable to the estimated price of real consideration, performs for another property if the analysis, opinion, person one of the following acts: or conclusion: (i) sells, exchanges, purchases, or (a) is not referred to as an

leases real estate; appraisal; (ii) offers to sell, exchange, (b) is provided in the ordinary purchase, or lease real estate; course of the person’s business; and (iii) negotiates or attempts to negotiate the listing, sale, (c) is related to the actual or exchange, purchase, or lease of potential management, real estate; acquisition, disposition, or

encumbrance of an interest (iv) lists or offers, attempts, or in real property; or agrees to list real estate for sale, lease, or exchange; (xii) advises or offers advice to an

owner of real estate concerning (v) auctions or offers, attempts, or the negotiation or completion of agrees to auction real estate; a short sale; and (vi) deals in options on real estate, (B) includes a person who: including a lease to purchase or buying, selling, or offering to (i) is employed by or for an owner buy or sell options on real of real estate to sell any portion

*57 Page 2 of 2 Tex. Occ. Code § 1101.002 of the real estate; or who: (ii) engages in the business of (A) represents a principal through charging an advance fee or cooperation with and the consent of contracting to collect a fee a broker representing the principal; under a contract that requires the and person primarily to promote the

(B) is not sponsored by or associated sale of real estate by: with the principal’s broker. (a) listing the real estate in a History

publication primarily used

for listing real estate; or

Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B. (b) referring information about 2813), § 2, effective June 1, 2003; am. Acts 2003, the real estate to brokers. 78th Leg., ch. 1276 (H.B. 3507), § 14A.151, (1-a) “Business entity” means a “domestic effective September 1, 2003; am. Acts 2011, 82nd entity” or “foreign entity” as those Leg., ch. 1064 (S.B. 747), § 1, effective September terms are defined by Section 1.002, 1, 2011; am. Acts 2015, 84th Leg., ch. 1158 (S.B. Business Organizations Code, that is 699), § 2, effective January 1, 2016. qualified to transact business in this state.

Texas Statutes & Codes Annotated by LexisNexis® (2) “Certificate holder” means a person Copyright © 2017 Matthew Bender & Company, Inc. registered under Subchapter K. a member of the LexisNexis Group. All rights reserved. (3) “Commission” means the Texas Real Estate Commission. End of Document (4) “License holder” means a broker or sales agent licensed under this chapter. (5) “Real estate” means any interest in real property, including a leasehold, located in or outside this state. The term does not include an interest given as security for the performance of an obligation.

(6) “Residential rental locator” means a person who offers for consideration to locate a unit in an apartment complex for lease to a prospective tenant. The term does not include an owner who offers to locate a unit in the owner’s complex.

(7) “Sales agent” means a person who is sponsored by a licensed broker for the purpose of performing an act described by Subdivision (1).

(8) “Subagent” means a license holder *58 Tex. Occ. Code § 1101.351

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® Texas Statutes & Codes Annotated by LexisNexis® > Copyright © 2017 Matthew Bender & Company, Inc. Occupations Code > Title 7 Practices and Professions a member of the LexisNexis Group. All rights reserved. Related to Real Property and Housing > Subtitle A Professions Related to Real Estate > Chapter 1101 End of Document Real Estate Brokers and Sales Agents [Expires September 1, 2019] > Subchapter H License Requirements [Expires September 1, 2019] Sec. 1101.351. [Expires September 1,

2019] License Required.

(a) Unless a person holds a license issued under this chapter, the person may not: (1) act as or represent that the person is a

broker or sales agent; or (2) act as a residential rental locator. (a-1) Unless a business entity holds a license issued under this chapter, the business entity may not act as a broker.

(b) An applicant for a broker or sales agent license may not act as a broker or sales agent until the person receives the license evidencing that authority.

(c) A licensed sales agent may not engage or attempt to engage in real estate brokerage unless the sales agent is sponsored by a licensed broker and is acting for that broker.

History Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B. 2813), § 2, effective June 1, 2003; am. Acts 2011, 82nd Leg., ch. 1064 (S.B. 747), § 5, effective September 1, 2011; am. Acts 2015, 84th Leg., ch. 1158 (S.B. 699), § 29, effective January 1, 2016.

*59 Tex. Occ. Code § 1101.803

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® > Occupations Code > Title 7 Practices and Professions Related to Real Property and Housing > Subtitle A Professions Related to Real Estate > Chapter 1101 Real Estate Brokers and Sales Agents [Expires September 1, 2019] > Subchapter Q General Provisions Relating to Liability Issues [Expires September 1, 2019] Sec. 1101.803. [Expires September 1,

2019] General Liability of Broker.

A licensed broker is liable to the commission, the public, and the broker’s clients for any conduct engaged in under this chapter by the broker or by a sales agent associated with or acting for the broker.

History Enacted by Acts 2001, 77th Leg., ch. 1421 (H.B. 2813), § 2, effective June 1, 2003; am. Acts 2015, 84th Leg., ch. 1158 (S.B. 699), § 89, effective January 1, 2016. Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2017 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

End of Document *60 III.

C

alifornia C ase -Gibson v. Davis Realty *61 Gipson v. Davis Realty Co. [Civ. No. 20032. First Dist., Div. One. Apr. 18, 1963.] THOMAS WESLEY GIPSON, a minor, etc., et al., Plaintiffs and Appellants, v. DAVIS REALTY COMPANY, Defendant and Respondent.

COUNSEL

Walkup & Downing, Bruce Walkup, Robert Ransom and Wiliam B. Boone for Plaintiffs and Appellants. Hadsell, Murman & Bishop, Bishop, Murray & Barry, Herbert Chamberlain and Nelson Barry for Defendant and Respondent. OPINION MOLINARI, J. This is an appeal from a judgment in favor of the defendant, Davis Realty Company, a corporation, in an action for damages for personal injuries. Statement of the Case On April 4, 1957, Mrs. Jane Gipson, who was pregnant with child, was being transported by ambulance to the Stanford Hospital where her child was to be delivered. A collision between the ambulance and an automobile owned and driven by Roland Shugg occurred at the intersection of 26th Avenue and Clement Street in San Francisco. The accident occurred at about 12:20 p.m. The child was born about 40 minutes after the accident. The child showed signs of brain damage immediately after the accident, it being subsequently determined that such damage was permanent and that the child was suffering from a disability diagnosed as cerebral palsy. A personal injury action was thereafter instituted by the child's father, Edward T. Gipson, as guardian ad litem on behalf of the child, by the said father in his individual capacity, and by Mrs. Gipson against the ambulance company and its driver, and against Shugg and Davis Realty Company, a corporation, as the alleged employer of Shugg. The cause proceeded to trial ultimately with the child (by his said guardian) and Edward T. Gipson, individually, as plaintiffs, and Davis Realty Company as the sole defendant. A trial was had before a jury and a verdict was returned against the plaintiffs fn. 1 and for the defendant. fn. 2 No attack is made on this appeal as to the substantiality of the evidence, the appeal being directed to the propriety of certain instructions and rulings made by the trial court. fn. 3 [215 Cal. App. 2d 196] Did the Court Commit Prejudicial Error in the Giving of Instructions Regarding Burden of Proof? *62 [1] The trial court gave an instruction on its own motion as follows: "Where the evidence is contradictory, your decision must be in accordance with the preponderance thereof. It is your duty, however, if possible to reconcile such contradiction so as to make the evidence reveal the truth. If you are in doubt as to the preponderance of the whole evidence, then you must resolve that doubt in favor of the party who has not the burden of proof." fn. 4 (Italics added.) The appellants assert that this instruction is prejudicially erroneous in that it tells the jury that the appellants were required not only to prove their case by a preponderance of the evidence, but that they were required to convince the jury beyond all doubt as to the sufficiency of their proof. A reading of the instruction does not indicate that the jury was told that the appellants were required to prove their case beyond all doubt. What the jurors were told, however, was that if they were in doubt as to whether the evidence preponderated in favor of the appellants, they were then to find that the appellants had not met the burden of proof. While we are of the opinion that instructions using the word "doubt" ought to be avoided in civil cases on the subject of burden of proof and preponderance of the evidence, we do [215 Cal. App. 2d 197] not believe that the instant instruction is erroneous. Although, inartfully drawn, its effect, when coupled with the other instructions given by the court on the subject, fn. 5 was to tell the jury that if, after weighing the whole evidence in the case, they were in the subjective state of being uncertain as to whether the evidence tending to prove the appellants' allegations had the greater weight, probability, quality and convincing effect than that presented by the opposing evidence, they were to decide that the appellants had not met the burden of proof. The jurors were not told by this instruction that the things which the appellants were required to prove must not admit of any doubt, but rather, that, if after weighing the whole evidence in support of these things, they were in the frame of mind where they could not say that such evidence preponderated on the side of the appellants, they were to conclude that it did not so preponderate. The appellants have cited several cases in support of their assertion of error, fn. 6 but these are distinguishable from the instruction in the instant case primarily because of the specific language used, and the connotation it conveyed, that the degree of certainty indicated with reference to the particular allegations to be proved must not only be beyond doubt, but must not admit of any doubt at all. In Greenleaf v. Pacific Tel. & Tel. Co., 43 Cal. App. 691, 693 [185 P. 872], the portion of the instruction which resulted in a reversal read as follows: " '[A]nd if the preponderance of the evidence fails to satisfy you that the fire was so caused, or leaves in your mind any doubt, confusion or uncertainty as to the origin of the fire, your verdict should be for the defendant.' " (P. 693.) The erroneous instruction given in Colbert v. Borland, 147 Cal. App. 2d 704, 712 [306 P.2d 53], stated that: " 'The burden is upon each plaintiff in these cases to prove the affirmative of his case by a preponderance of the evidence. Therefore, you may not speculate as to whether any conduct on the part of either defendant was a proximate cause of the accident or of any one of plaintiff's injuries or damages, and if the evidence leaves these things a matter of conjecture or doubt, then that plaintiff has not sustained the burden of [215 Cal. App. 2d 198] proof required of him under the law as against that defendant.' " (Italics partly added.) The instruction given in Meschini v. Guy F. Atkinson Co., 160 Cal. App. 2d 609, 615 [325 P.2d 213], was almost identical to the one condemned in Colbert. In Banes v. Dunger, 181 *63 Cal. App. 2d 276, 282 [5 Cal. Rptr. 278], the court gave an instruction to the effect that the jury was not to speculate as to any injuries claimed by the plaintiffs, and that if the evidence left the existence or cause of any alleged injuries a matter of conjecture or doubt, that then the plaintiffs had not sustained the burden of proof. The Perrett v. Southern Pac. Co., 73 Cal. App. 2d 30 [165 P.2d 751], case did not involve the use of the word "doubt." There an instruction was given that the defendant could be held liable only " 'upon proof which satisfies your mind that the plaintiff's injuries were proximately caused by some negligence upon its part.' " (P. 38; italics added.) In Popejoy v. Hannon, 37 Cal. 2d 159 [231 P.2d 484], the court on its own motion instructed that: " 'The defendants, however, are not required to prove by a preponderance of the evidence that they were free from negligence which proximately caused the lumber to fall. They are bound to produce only sufficient evidence to create in your minds such doubt as to why the lumber fell that you cannot say you are convinced by a preponderance of the evidence that the falling of the lumber was proximately caused by the negligence of the defendants.' " (Pp. 164-165.) The defendants there complained of the instruction, and while the appellate court had some misgivings as to the instruction (not because of the use of the word "doubt," but because it tended to place upon the defendants the requirement to present direct evidence either of their freedom from negligence or the absence of proximate cause), it held that the instruction was not prejudicial under circumstances wherein an instruction was given at the request of the defendants substantially in the form of BAJI No. 21. fn. 7 The court there said that there was "little difference" between the challenged instruction and the one requested by the [215 Cal. App. 2d 199] defendants, and that "The effect of the instruction complained of was to say that the Hannons [the defendants], in order to defeat Popejoy's [the plaintiff's] claim, had the duty to produce a preponderance of evidence to the contrary." fn. 8 (P. 165.) It should be here noted that the appellants themselves claim error on the part of the court in failing to give an instruction requested by them containing the following language: "It is the duty of the jury to decide for the plaintiff if the weight of the evidence preponderates, according to the reasonable probability of truth, in favor of the plaintiff's claims, even though the minds of the jurors are not free from doubt." (Italics added.) The court did not give this instruction but placed thereon the notation: "Given as Modified." The court was apparently of the opinion that in essence this instruction was covered by the subject instruction to the extent that the former was modified by the latter. We see little difference between the two instructions. Suffice it to say, the terminology "greater probabilities of truth," "probability of the truth" and the "greater probability" with reference to the meaning of "preponderance of evidence" in burden of proof instructions is in common use by the courts and has been approved. (See Popejoy v. Hannon, supra, 37 Cal. 2d 159; and see BAJI No. 21, rev. 1962.) fn. 9 The word "probability" by its very definition leaves some room for doubt. In Brown v. Beck, 63 Cal. App. 686 [220 P. 14], we find the following language: " 'Probability' means the state or character of being probable. Webster's and the Century dictionaries define 'probable' as follows: 'Having more evidence for than against; supported by evidence which inclines the mind to belief but leaves some room for doubt; likely.' This definition is accepted in numerous cases in which the word 'probable' is construed." (Pp. 697-698.) *64 Did the Court Commit Prejudicial Error in the Giving and Refusing to Give Instructions as to the Effect of the Employment Contract? At the time of the accident in question Shugg was one of four stockholders in the respondent corporation. He was neither an officer nor a director of the corporation. On February 19, 1957, Shugg entered into a contract with the respondent [215 Cal. App. 2d 200] entitled "Desk Space Contract with Tenant- Salesman." According to said contract Shugg agreed to pay 50 per cent of the profits from his real estate activities in exchange for the desk space, telephone, stenographic, and bookkeeping services located at 5000 Geary Boulevard, San Francisco. The said agreement further provided that Shugg was not to be deemed to be an employee of the respondent, and that the latter did not control or have any right of control over Shugg's acts. Attached to the contract was a separate agreement concerning the disposition of gross commissions, a detailed schedule setting out the division of various sales commissions, and a list of working conditions one of which was that all employees were required to show a Mrs. McAnaw fn. 10 that they carried adequate automobile liability insurance. Other conditions and stipulations made reference to "salesman" and to "broker." Testimony was adduced at the trial to the effect that the above contract was entered into with the intent of saving the necessity of keeping bookkeeping records and with the intent on the part of the respondent to treat its salesmen as independent contractors. Shugg testified, however, that it was not the intent to make the salesman independent contractors because the salesmen knew that they could not be such as they were not licensed as brokers. The evidence discloses that Shugg was licensed as a real estate salesman only, and that he never had been licensed as a broker. It appears that all transactions entered into by Shugg were in compliance with the California Business and Professions Code regulating real estate transactions; that all real estate deals made by Shugg were made in the name of "Davis Realty"; that deposit receipts and similar papers were signed " 'Davis Realty, by R. P. Shugg' "; and that all listings brought in by Shugg were signed as listings of Davis Realty which would remain the property of Davis Realty if Shugg resigned. There was testimony, also, that all advertising was in the name of Davis Realty; that Shugg, when conducting a transaction, represented to customers that he was acting for Davis Realty; that the salesmen were expected to rotate "floor days" during which they stayed in the office all day, took calls, and met people who came in off the street; and that Shugg was required, as a salesman, to satisfy Mrs. McAnaw that he had adequate automobile liability insurance. [215 Cal. App. 2d 201] The "Working Agreement" referred to above provided that all salesmen could be terminated on 30-day notice. In this regard, Shugg testified that a couple of salesmen were asked to transfer their licenses to other brokers; and Ross, respondent's president, testified that while the company had never fired anyone, a couple of salesmen were asked to terminate because of an infraction of policy. After defining for the jurors the meaning of "independent contractor" and "agent," and instructing them that if they found Shugg to be an independent contractor then the respondent would not be liable, but if they found him to be an agent, acting within the *65 scope of his authority at the time of the accident, the respondent would be liable, the court gave the following instruction with regard to the employment contract between Shugg and Davis Realty Company, to wit: "The contract which exists between the Davis Realty Company and Roland Shugg is prima facie evidence of the relationship between them. That is to say in the absence of any other evidence it is the controlling factor in determining whether or not Roland Shugg was at the time of the accident an independent contractor. However, where further evidence is introduced with respect to the actual working arrangement between the parties you may take this into consideration in making your decision as to the relationship between the parties. You may look at the actual working arrangement in the light of the rules previously read to you and recall that the decisive test of the relationship is who has the right to direct what shall be done, when and how it shall be done. Or to put the test in another form, who has the right to general and immediate control over the progress and method of the work involved." (Italics added.) The appellants contend that prejudicial error was committed by the trial court in the giving of this instruction. The objection is directed to the use of the words "prima facie evidence" and "controlling factor. ..." It is argued by the appellants that this instruction purported to attribute to the contract some conclusive or presumptive effect. The appellants assert that the jury could find by the other evidence produced that the rule relationship between Shugg and Davis Realty was that of principal and agent and that in so doing the jury was at liberty to ignore the provisions of the contract which purport to negate such relationship. The appellants argue further that while the court did instruct the jury that it "may" consider such other evidence, a correct instruction [215 Cal. App. 2d 202] would have stated that it "must" consider such evidence. The proper instruction, say the appellants, was that embodied in their proposed instruction number 65, which the court refused to give. fn. 11 The appellants claim that such refusal was prejudicial error. [2] The instruction given was a correct statement of the law insofar as it declared that the relation of the parties to a written contract of employment is prima facie that which is expressed by the terms of their writing. (Luckie v. Diamond Coal Co., 41 Cal. App. 468, 479 [183 P. 78]; Stewart & Nuss v. Industrial Acc. Com., 55 Cal. App. 2d 501 [130 P.2d 985].) [3] It is proper, moreover, in view of the established rule that parol evidence is admissible in an action by one not a party to an employment contract to show the true relationship between the parties (Broder v. Epstein, 101 Cal. App. 2d 197, 199 [225 P.2d 10]; Marx v. McKinney, 23 Cal. 2d 439, 442 [144 P.2d 353]; Luckie v. Diamond Coal Co., supra, p. 478; and see Code Civ. Proc., § 1856), for a trial court to admit extrinsic evidence to be weighed against the presumption afforded by such prima facie evidence. Such extrinsic evidence was so admitted in the present case. The questioned instruction, however, tells the jury that it "may" take such evidence into consideration. [4] While in the construction of statutes the word "may" is often interpreted to mean "must" or "shall," the word is primarily and ordinarily a permissive term and is so understood by laymen. The word "may" here imported to the jury that it might, or might not, at its option, consider such evidence. (See White v. Disher, 67 Cal. 402, 404 [7 P. 826].) [5] A jury is duty bound to consider and weigh all of the evidence received by the court under appropriate instructions. (Borenkraut v. Whitten, 56 Cal. 2d 538, 546 [15 Cal. Rptr. 635, 364 P.2d *66 467]; Ensign v. Southern Pac. Co., 193 Cal. 311, 323 [223 P. 953].) The instruction [215 Cal. App. 2d 203] proposed by the appellants, on the other hand, appears to state the rule of Broder and Luckie correctly and should have been given by the court, fn. 12 assuming, of course, that it was proper for the court to instruct on the effect of the employment contract. [6a] We are of the opinion, however, that it was error for the court to have given any instructions on the effect of the employment contract because Shugg was an agent of the respondent as a matter of law. A proper instruction, therefore, would have been one so advising the jury. In Grand v. Griesinger, 160 Cal. App. 2d 397 [325 P.2d 475], it was held that a real estate salesman "is strictly the agent of the broker." (P. 406; italics added.) The appellate court was there called upon, in a salesman license revocation case, to interpret the Real Estate Act (Bus. & Prof. Code, §§ 10000-11709) in its application to the relationship between a real estate broker and a real estate salesman. In discussing the applicable statutes the reviewing court pointed out that "[t]he differences in language are small, but the divergence in import is large." (P. 405.) After citing sections 10131 fn. 13 and 10132, fn. 14 defining "real estate broker" and "real estate salesman," respectively, the court observed as follows: "A broker performs the specified services 'for another or others,' meaning the public, while a salesman must be 'employed by a licensed real estate broker.' Both act for compensation, but the salesman cannot 'be employed by or accept compensation from any person other than the broker under whom he is at the time licensed.' " (P. 405; italics added; citing § 10137.) The [215 Cal. App. 2d 204] court went on to point out that a salesman can only get a license on the recommendation of the broker who is to be his employer (§ 10151); that when a salesman's application is granted his license goes into possession of his broker-employer and there remains until cancelled or the salesman leaves the employ of the broker (§ 10160); and that the broker must " 'exercise reasonable supervision over the activities of his salesmen' " or hazard the suspension or revocation of his own license (§ 10177, subd. (h); p. 405]. The conclusion reached by Grand, after a review of the foregoing statutes and other related provisions, is that: "The entire statutory scheme requires the broker actively to conduct his brokerage business and to supervise the activities of his salesmen." (P. 406.) The respondent maintains that whether a real estate salesman is an employee or agent on the one hand, or an independent contractor on the other, is a question of fact dependent upon the particular circumstances of each case. In support of this proposition it cites the following cases: California Emp. Stab. Com. v. Norins Realty Co. (1946) 29 Cal. 2d 419 [175 P.2d 217]; California Emp. Stab. Com. v. Morris (1946) 28 Cal. 2d 812 [172 P.2d 497]; and Royal Indem. Co. v. Industrial Acc. Com. (1930) 104 Cal. App. 290 [285 P. 912]. In Morris the question before the Supreme Court was whether a real estate salesman was to be deemed "in employment" within the meaning of the Unemployment Insurance Act. The court held that "[t]he Real Estate Act ... does not establish as a matter of law the status of every salesman as being 'in employment' within the meaning of the Unemployment Insurance Act." (P. 817.) The rationale of Morris is that "[t]he Real Estate Act of this state does not expressly give the employer the right to control the manner and means of accomplishing the result desired, nor do its provisions conclusively negative all of the other factors to be considered in determining whether one *67 is an independent contractor. Accordingly, the occupation of real estate salesman, insofar as the Unemployment Insurance Act is concerned, is one that may be classified as that of an employee, or an independent contractor, depending upon the facts of the particular case." (P. 818; italics added.) Norins Realty Co. also involved the applicability of the Unemployment Insurance Act to real estate salesmen. It follows the holding in Morris. The Royal Indem. Co. case was concerned with workmen's compensation benefits. Like Morris, it held that whether the relationship of a real estate salesman to a broker is that of [215 Cal. App. 2d 205] an employee or independent contractor is a question depending upon the facts of the particular case. The holding there turned upon the lack of any evidence showing control over the means, manner or mode of the work exercised by the salesman. We are persuaded that the distinction between Grand, on the one hand, and Morris, Norins Realty Co. and Royal Indem. Co., on the other, lies in the difference between an "employee" and an "agent." The basis of the holding in Morris and Norins Realty Co., with reference to the Unemployment Insurance Act, and Royal Indem. Co., with reference to the Workmen's Compensation Act, is that, insofar as these acts are concerned, the common law definition of master and servant is the measure of the relationship between the parties, and that the statutory definition of salesman in the Real Estate Act does not make a real estate salesman an "employee" within the meaning of these acts as a matter of law. [7] An "employee" is one who is subject to the absolute control and direction of his employer in regard to any act, labor or work to be done in the course and scope of his employment. (Crooks v. Glens Falls Indem. Co., 124 Cal. App. 2d 113, 121 [268 P.2d 203].) The term "employee" has been held to be synonymous with the word "servant." (Press Pub. Co. v. Industrial Acc. Com., 190 Cal. 114, 122 [210 P. 820]; Western Indem. Co. v. Pillsbury, 172 Cal. 807, 810 [159 P. 721].) Section 3000 of our Labor Code (formerly Civ. Code, § 2009) defines a servant as follows: "A servant is one who is employed to render personal service to his employer, other than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the employer, who is called his master." An "agent" is defined by section 2295 of the Civil Code as follows: "An agent is one who represents another, called the principal, in dealings with third persons." While one may be both a servant and an agent (Ingle v. Bay Cities Transit Co., 72 Cal. App. 2d 283, 286 [164 P.2d 508]), the terms are not wholly synonymous. (People v. Treadwell, 69 Cal. 226, 236 [10 P. 502].) Although both relate to voluntary action under employment and express the idea of service, the service performed by a servant may be inferior in degree to work done by an agent for his principal. [8] Accordingly, while both a servant and an agent are workers for another under an express or implied employment, an agent works not only for, but in the place of, his [215 Cal. App. 2d 206] principal. (People v. Treadwell, supra, p. 236.) It is apparent from a reading of section 3000 of the Labor Code that the relationship of master and servant contemplates that the servant be entirely under the control and direction of the employer; it presupposes also the right to direct the method and mode of doing the service. (See Fay v. German General Benevolent Soc., 163 Cal. 118, 121 [124 P. 844]; Chinnis v. Pomona Pump Co., 36 Cal. App. 2d 633, 637 [98 P.2d 560].) [9] The distinguishing features of an agency, on the other hand, are its representative character and its derivative authority. (Store of Happiness v. Carmona & Allen, Inc., 152 Cal. App. *68 2d 266, 269 [312 P.2d 1104].) [10] As stated in Wallace v. Sinclair, 114 Cal. App. 2d 220 [250 P.2d 154]: "Agency is the relation that results from the act of one person, called the principal, who authorizes another, called the agent, to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. The heart of agency is expressed in the ancient maxim: 'Qui facit per alium facit per se.' " (P. 229; italics partly added.) It should be noted, moreover, that Morris, Norins Realty Co. and Royal Indem. Co. were decided prior to the addition by the Legislature in 1955 of subdivision (h) to section 10177, providing an additional ground for the suspension or revocation of a real estate broker's license, i.e., that such broker's license may be suspended or revoked if he fails "to exercise reasonable supervision over the activities of his salesmen." The presence of this provision in the Real Estate Law, read in conjunction with the other provisions applicable to real estate salesmen, was deemed by the reviewing court in Grand to be indicative of a legislative intent to create by statute, as between a real estate broker and the salesman licensed under such broker, respectively, the relationship of principal and agent. [11] We are satisfied, accordingly, that while it may be a question of fact whether in each case a real estate salesman is an employee within the common law definition of master and servant, the Legislature has, by virtue of statutory enactment, made such a salesman an agent of the broker as a matter of law. [12] A consideration of the several statutory provisions applicable to a real estate salesman impels the conclusion that such person can act only for, on behalf of, and in place of the broker under whom he is licensed, and that his acts are limited to those which he does and performs [215 Cal. App. 2d 207] as an agent for such broker. (Galbavy v. Chevelin Realty Corp., 58 Cal. App. 2d Supp. 903, 906 [136 P.2d 134].) [13] We conclude, therefore, that a salesman, insofar as his relationship with the broker who employs him is concerned, cannot be classed as an independent contractor. Accordingly, any contract which purports to change that relationship from that of agent to independent contractor is invalid as being contrary to the provisions of the Real Estate Law. (See Civ. Code, §§ 1608, 1667.) [6b] It was reversible error for the court, therefore, to instruct the jury that the contract of employment between Shugg and the respondent was "prima facie" evidence of their relationship in view of the terms of the contract providing that the relationship was that of independent contractor. In the absence of such error it is reasonably probable that a result more favorable to the appellants might have been reached. (See People v. Watson, 46 Cal. 2d 818, 835-836 [299 P.2d 243].) While the error in this latter respect was induced by both the respondent and the appellants, it was not "invited error" on the part of appellants. The case was tried on the theory that the question whether Shugg was an independent contractor was one of fact for the jury and instructions were submitted by both sides not only on the effect of the subject employment contract, but on the meaning and definition of the relationship of independent contractor. [14] It is well settled law that where a litigant invites error by offering instructions on a certain issue, he is in no legal position to complain that it was error to give instructions offered by the adversary, or given by the court on the same issue. (Fuentes v. Panella, 120 Cal. App. 2d 175, 182 [260 P.2d 853]; Wells v. Lloyd, 21 *69 Cal. 2d 452 [132 P.2d 471].) [15] In the instant case the doctrine of invited error would preclude the appellants from complaining that the court instructed on the issue of whether or not Shugg was an independent contractor and of the effect of the employment contract with respect to the relationship between the respondent and Shugg. The doctrine does not, however, estop the appellants from urging on appeal that an instruction given on that issue was in fact erroneous. As we have pointed out above, even if it had been proper for the court to instruct on the effect of the employment contract with respect to the relationship in question, the instruction given on the subject was prejudicially erroneous. The doctrine of invited error precludes a party from an objection on appeal to an instruction substantially the same [215 Cal. App. 2d 208] as the one requested by him, or invited by an instruction requested by him, or to the part of an instruction containing the same vice as the one submitted by him. (Jentick v. Pacific Gas & Elec. Co., 18 Cal. 2d 117, 122 [114 P.2d 343]; Smith v. Kile, 147 Cal. App. 2d 314, 317 [304 P.2d 1034]; Jansen v. Southern Pac. Co., 112 Cal. App. 2d 833, 845 [247 P.2d 581]; Yolo Water & Power Co. v. Hudson, 182 Cal. 48, 51 [186 P. 772]; George v. City of Los Angeles, 51 Cal. App. 2d 311, 319-320 [124 P.2d 872].) In the present case the instruction submitted by the appellants on the effect of the employment was substantially different from that submitted by the respondent; it did not contain the same vice. [16] The doctrine of invited error does not apply where the instruction objected to on appeal contains elements or additions substantially different from that contained in the instruction submitted by appellant, particularly where such instruction is prejudicial to him and is not the law. (Baker v. Borello, 131 Cal. 615, 616-617 [63 P. 914]; Dowd v. Atlas Taxicab etc. Co., 69 Cal. App. 9, 14 [230 P. 958].) Did the Court Commit Error in Refusing Instructions Defining the Right of Control and the Factors to be Considered? Substantial evidence regarding the control of the respondent over Shugg was submitted by both parties on the issue of whether Shugg was an agent or independent contractor, and instructions on the subject of control were given to the jury. The appellants contend that the jury was not informed as to the difference between the right of control and the actual exercise of control. In view of our conclusion that a real estate salesman is an agent of the broker, under whose license he operates as a matter of law, the question of control need not be discussed as instructions on that issue were not necessary in the present case. The important question is whether, at the time of the accident in question, Shugg, as such agent, was acting within the course and scope of his employment. Were the Instructions and Rulings as to the Scope of Employment Erroneous? The facts leading up to the accident appear to be undisputed. Shugg testified: that on the morning of the accident he was at the office of Davis Realty; that he left the office for the purpose of going to 38th Avenue and Clement Street to try to obtain a listing on a house at that corner on behalf of Davis Realty; that his sole intention upon leaving the office was to look at that property; that Davis Realty is located at [215 Cal. App. 2d 209] 14th Avenue and Geary Boulevard; that he drove north one block to Clement Street and then drove west on Clement; that as he started out on Clement Street he noticed it was around *70 noon, so he decided to stop by at his home for lunch and then continue out to look at the property after lunch; that he was driving west on Clement Street, somewhere between 14th and 26th Avenues when he made this decision; that he lived on 32nd Avenue, two blocks north of Clement Street; fn. 15 that the entire trip from Davis Realty to 38th Avenue and Clement Street would have involved a distance of about 21 blocks; that the respondent did not instruct its salesmen as to when or where they should eat lunch; that it was the usual practice to stop at a convenient location for lunch and then continue on with the business of Davis Realty; that he ate lunch at home if he happened to be in the area; that after he reached the decision to eat lunch at home he continued along Clement Street. fn. 16 [17] It is elementary that the liability of the principal or employer is predicated upon the fact of employment. [18] Accordingly, the principal or employer is not liable for the acts of his agent or employee while the latter is pursuing his own ends, even though the injury complained of could not have been committed without the facilities afforded to the agent or employee by his relation to his principal or employer. (Kish v. California State Automobile Assn., 190 Cal. 246, 248 [212 P. 27].) [19] Therefore, whether or not the principal or employer is responsible for the act of the agent or employee at the time of the injury depends upon whether the agent or employee was engaged at that time in the transaction of the business of his principal or employer, or whether he was engaged in an act which was done for his own personal convenience or accommodation and related to an end or purpose exclusively and individually his own. (Kish v. California State Automobile Assn., supra, pp. 248-249.) [20] Accordingly, it is the general rule that an employee on his way to lunch, even though he is driving an automobile which is the property of the master, is not engaged in furthering any end of the employer, and that therefore under such circumstances, the servant is not acting within [215 Cal. App. 2d 210] the scope of his employment. (Carnes v. Pacific Gas & Elec. Co., 21 Cal. App. 2d 568, 572 [69 P.2d 998, 70 P.2d 717]; Peccolo v. City of Los Angeles, 8 Cal. 2d 532, 535- 536 [66 P.2d 651]; Adams v. Tuxedo Land Co., 92 Cal. App. 266, 269-270 [267 P. 926]; Helm v. Bagley, 113 Cal. App. 602, 605 [298 P. 826]; Martinelli v. Stabnau, 11 Cal. App. 2d 38, 40 [58 P.2d 956].) [21] The so-called "lunch hour rule," enunciated by the foregoing cases, is, however, subject to an exception termed the "dual or combined purpose rule." The latter rule was stated thusly in Ryan v. Farrell, 208 Cal. 200 [280 P. 945]: "[W]here the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured; but the master will be held responsible, unless it clearly appears that the servant could not have been directly or indirectly serving his master." (P. 204.) This rule was followed and applied in Cain v. Marquez, 31 Cal. App. 2d 430, 441 [88 P.2d 200]; Loper v. Morrison, 23 Cal. 2d 600, 606 [145 P.2d 1]; and Fuller v. Chambers, 169 Cal. App. 2d 602, 608 [337 P.2d 848]. In Ryan, an automobile salesman made a trip from San Diego to Pacific Beach to interview a prospective purchaser and was making the return trip when he injured the plaintiff. It was there held that an employee who has gone upon an errand on behalf of his master does not cease to be acting in the course of his employment at the moment he starts upon the return trip after having performed the errand. The Cain case held that *71 there were facts sufficient to warrant the case going to the jury on the issue as to whether the employee was acting within the scope of his employment where the employee went home in his own car to get tools to be used in his employer's work, then went to dinner, and on his way back to work became involved in an accident. Loper, on its facts, is similar to the case at bench. There a milk route employee, Morrison, left his employer's place of business in his own (Morrison's) car for the purpose of collecting a delinquent account owed his employer by a Mrs. Hanson, a customer on his route. Morrison was accompanied by a fellow employee, Dolan, whom he had offered a ride home. Upon finding that Mrs. Hanson was not at home Morrison decided to call again later. While waiting for Mrs. Hanson to return, Morrison went with Dolan to a tavern near Dolan's home for sandwiches and beer, and then took Dolan home. While returning from [215 Cal. App. 2d 211] Dolan's home on his way to the Hanson home Morrison was involved in an accident. Dolan lived about 2 miles outside the area covered by the milk route and the accident occurred before Morrison reached the boundaries of his route. The court there held that it could not determine as a matter of law that the employee was outside the scope of his employment, the test being whether there had been a deviation so material or substantial as to constitute a complete departure, and that this determination was a question of fact. The Supreme Court went on to state that "[t]he employer's liability was not necessarily terminated by reason of the fact that Morrison combined a private purpose of his own with the business of his employer." (P. 606; citing the above rule announced in Ryan.) In Fuller an employee was driving a company car from San Francisco to Fresno on business. Instead of going by the most direct route, i.e., via Gilroy and Pacheco Pass, he detoured by way of Camp Roberts in Monterey County to pick up friends. The accident occurred after leaving Camp Roberts about 16 miles out of Lemoore (Kings County) along Route 41 toward Fresno. Applying the legal principle expressed in Ryan, the court held that there was sufficient evidence to support a finding that the employee was acting within the course and scope of his employment. The "dual or combined purpose rule" was recognized also in Richards v. Metropolitan Life Ins. Co., 19 Cal. 2d 236 [120 P.2d 650]. There an insurance agent in the employ of Metropolitan Life Insurance Company used his own car in soliciting insurance, in delivering policies, in collecting premiums and in trips to the company's office. He paid all expenses of maintaining and operating said car. He was required by the company to attend daily meetings at its office in the morning. On the morning of the accident the employee was on his way from his home to the office of the company to attend a meeting of the agents and to deliver premiums collected on the day previous. Because his duties encompassed both office and field work in a territory allocated to him by the company, and because he had to attend daily meetings at the company's office and was required to deliver premiums at such office either before or after doing such field work, the Supreme Court held that there was substantial evidence before the trial court on the issue as to whether the agent was acting within the course of his employment at the time of the accident to warrant the denial of a motion for nonsuit. [22] In the instant case it cannot be said that at the time [215 Cal. App. 2d 212] of the accident Shugg was engaged in an act which was done for his own personal convenience or accommodation and related to an end or purpose exclusively and individually his own. *72 The testimony shows that, initially, his sole intent was to attend to the business of his principal at 38th Avenue and Clement Street. En route, he decided to combine his business with that of Davis Realty. This is the extent of his deviation. Moreover, we do not even have a departure from the original route of travel as was the case in Cain, Loper and Fuller. The court below would, therefore, have been justified in giving an instruction based upon the legal principle declared in Ryan. Such an instruction was proposed by the appellants, fn. 17 but was not given. fn. 18 [23] Instead, after giving instructions defining generally the terms "principal" and "agent," the scope of an agent's authority, the meaning of "course and scope of employment" (including appellants' proposed instruction set out in footnote 18), and an instruction based upon the "return from an errand" principle (also declared in Ryan), the court below gave the following instruction: "An employee driving his own car to a meal may or may not be acting in the course and scope of his employment even though he is traveling with the intention of resuming his duties after eating. If the primary purpose of the trip is for the meal, then he is not in the course and scope of his employment. If the primary purpose is for the business of his employer, then he is within the course and scope of his employment." This instruction is clearly erroneous, and materially [215 Cal. App. 2d 213] at variance with the principle announced in Ryan. The rule in Ryan is not reduced to a determination of which business (i.e., his own or that of the master) is primary or dominant, or even as to which business the servant was actually engaged in at the time of the accident, but to whether, at such time, the servant is combining his own business with that of his master or attending to both at substantially the same time. [24] The essential inquiry, in each instance, is whether there has been a deviation so material or substantial as to constitute a complete departure from the agent's strict course of duty, and this determination is usually a question of fact. (Loper v. Morrison, supra, 23 Cal. 2d 600, 606-607; Fuller v. Chambers, supra, 169 Cal. App. 2d 602, 608-609; Westberg v. Willde, 14 Cal. 2d 360, 372-373 [94 P.2d 590].) [25] The applicable rule has been stated thusly: "One does not cease to be acting within the course of the master's employment because his most direct and immediate pursuit of the master's business is subject to necessary, usual or incidental personal acts, nor even by slight and immaterial delays or deflections from the most direct route for a personal or private purpose, the pursuit of the master's business continuing to be the controlling purpose. Such acts, not amounting to a turning aside completely from the master's business so as to be inconsistent with its pursuit, are often only what might be reasonably expected, to which, therefore, the master's assent may be fairly assumed; or they are in many instances the mingling with the pursuit of the master's business some purpose of the servant's own." (Shearman & Redfield on Negligence (6th ed) § 147a; cited with approval in Kruse v. White Brothers, 81 Cal. App. 86, 92-93 [253 P. 178]; Westberg v. Willde, supra, pp. 372-373; Fuller v. Chambers, supra, p. 608.) The respondent asserts that even if the above instruction is erroneous, it is the result of invited error on the part of the appellants. Although the said instruction bears the notation that it was requested by the respondent, the respondent maintains that this instruction was not submitted by it, but was one prepared by the court, pursuant to the stipulation and agreement of the parties. The respondent has filed a motion herein seeking to augment the record to show that the said instruction was given by stipulation and agreement of the parties. The motion is supported by an affidavit of counsel for the *73 respondent to the effect that the subject instruction was a modification of an instruction submitted by it fn. 19 after a conference [215 Cal. App. 2d 214] in the chambers of the trial judge, during which both sides agreed and stipulated that the instruction in the form in which it was ultimately given would correctly state the law and be acceptable to both sides. The said affidavit states further that the said modified instruction was prepared by the clerk of the court at the direction of the judge. This latter assertion is supported by an affidavit executed by the said clerk and by the court reporter for the said trial judge. Counsel for appellants, in turn, has filed a counteraffidavit to the effect that it is true that the court did modify the respondent's said proposed instruction, after appellants objected to it, and that the trial court did direct either the clerk or the court reporter to type the proposed instruction as modified. Appellants' counsel denies, however, that he agreed or stipulated to the instruction as modified, and denies that he stipulated or agreed that it was a correct statement of the law. [26] We thus have a sharp conflict in the affidavits. In such a case we should resolve the conflicts against the party who challenges the action taken by the court below. Since all intendments are in favor of such action, we must give considerable weight to the designation by the court as appears in the reporter's transcript to the effect that the instruction in question was given at the request of the respondent. (See Cameron v. Cameron, 110 Cal. App. 2d 258, 261 [242 P.2d 408]; DeWit v. Glazier, 149 Cal. App. 2d 75, 81-82 [307 P.2d 1031].) The proposed instruction was an erroneous statement of the law. The instruction given, even if considered as a modification of the one proposed, did not cure the error. It appears, therefore, that the error was invited by the respondent, rather than by the appellants. Moreover, it would avail nothing to augment the record to reflect the notation requested by the respondent because this cause will have to be retried, in any event, in view of the other prejudicial error in the record. [27] The appellants also assign as error the sustaining of an objection to the following question directed to Shugg: "And would you say it was only an incidental purpose when you decided to change your route to stop by your house and get something to eat?" The objection was sustained on the ground that it was for the jury to determine Shugg's primary purpose. The question was clearly objectionable because it called for the witness' conclusion. The extent and substantiality [215 Cal. App. 2d 215] of Shugg's deviation, if any, was a question of fact for the jury. The respondent's motion to augment the record is denied. The judgment is reversed. Bray, P. J., and Sullivan, J., concurred. FN 1. Hereinafter referred to as appellants. FN 2. Hereinafter referred to as respondent. FN 3. In discussing such instructions and rulings we shall hereinafter refer to such facts in the record as shall be pertinent thereto. *74 FN 4. Other instructions were given by the court on the subject of burden of proof, as follows: (a) "In Civil actions, and this is a Civil action, the party who asserts the affirmative of an issue must carry the burden of proving it. This means that if no evidence were given on either side of such issue, your findings as to it would have to be against that party. In determining whether the burden of proof has been sustained you will consider all of the evidence bearing upon the issue, regardless of which party introduced it." (b) "In civil cases a preponderance of evidence is all that is required, and the burden rests upon one who asserts the affirmative of an issue to prove his allegations by a preponderance of evidence." (c) "By a preponderance of evidence is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden of proof rests." (d) "Preponderance of evidence means not the greater number of witnesses, but the greater weight, probability, quality and convincing effect of the evidence, and proof offered by the party holding the affirmative as compared with the opposing evidence." (e) "Whenever, in these instructions, I state that the burden of proof rests upon a certain party to prove a certain allegation made by him, the meaning of such an instruction is this: That unless the truth of that allegation is proved by a preponderance of the evidence, you shall find that allegation to be not true." FN 5. The questioned instruction followed the other instructions on burden of proof which we have set out in footnote 4. FN 6. Greenleaf v. Pacific Tel. & Tel. Co., 43 Cal. App. 691 [185 P. 872]; Colbert v. Borland, 147 Cal. App. 2d 704 [306 P.2d 53]; Meschini v. Guy F. Atkinson Co., 160 Cal. App. 2d 609 [325 P.2d 213]; Banes v. Dunger, 181 Cal. App. 2d 276 [5 Cal. Rptr. 278]; Perrett v. Southern Pac. Co, 73 Cal. App. 2d 30 [165 P.2d 751]. FN 7. The said instruction read as follows: " 'When the evidence is contradictory, the decision must be made according to the preponderance of evidence, by which is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability of truth lies therein. Should the conflicting evidence be evenly balanced in your minds, so that you are unable to say that the evidence on either side of the issue preponderates, then your finding must be against the party carrying the burden of proof, namely, the one who asserts the affirmative of the issue.' " (Pp. 165-166.) FN 8. That is, to establish the defense of contributory negligence. *75 FN 9. This terminology appears in the instructions given by the court in the present case. See footnote 4, instructions (c) and (d). FN 10. Mrs. McAnaw was an employee-secretary of respondent corporation. FN 11. The proposed instruction was as follows: "The designation of a party in a contract as an independent contractor is not conclusive. Although a contract is drawn with the purpose of creating the appearance of an independent contractor relationship, nevertheless the conduct of the parties to the contract may show that the true relationship between the parties was that of principal and agent. In considering the contract between Mr. Shugg and defendant, Davis Realty Company, you must consider not only the terms of the contract, but also the circumstances under which it was made and the conduct of the parties under the contract. If the true relationship between the parties was that of principal and agent, then Davis Realty Company could not avoid responsibility for the conduct of Mr. Shugg merely by providing in the contract that he was not an employee of the company." FN 12. It appears to us, however, that the word "should" is preferable to the word "must" because the latter may be interpreted as signifying compulsion rather than the more appropriate idea of bounden duty. FN 13. All section references herein relate to the Business and Professions Code unless otherwise noted. FN 14. At the time pertinent to the instant case section 10132 read as follows: "A real estate salesman within the meaning of this part is a natural person who, for a compensation or in expectation of a compensation, is employed by a licensed real estate broker to sell, or offer for sale, or to list, or to buy, or to offer to buy, or to negotiate the purchase or sale or exchange of real estate, or to solicit the prospective purchasers of real estate, or to solicit borrowers or lenders for or negotiate a loan on real estate, or to lease, or to negotiate the sale, purchase or exchange of leases, or offer to lease, rent or place for rent, any real estate, or improvements thereon." (This section read substantially the same when discussed by Grand v. Griesinger, 160 Cal. App. 2d 397, 405 [325 P.2d 475]. It should be noted that in 1961 this section was amended to provide that a salesman can do any of the acts which a real estate broker may do.) FN 15. The contemplated detour for lunch thus involved a distance of two blocks from a direct route to his destination at 38th Avenue and Clement Street. FN 16. The accident took place at 26th Avenue and Clement Street and prior to reaching his home or his ultimate destination. FN 17. "The liability of a principal for the conduct of its agent is not necessarily terminated by the fact that the agent is combining a private purpose of his own with the business of *76 his principal. Where the agent is combining his own business with that of his principal, or is attending to both at substantially the same time, the principal is held responsible for the agent's conduct unless it clearly appears that the agent could not have been serving his principal directly or indirectly." FN 18. The proposed instruction bears the judge's notation "Given as Modified," however, it was not given by the court. By this notation, the court apparently meant to indicate that the substance of this instruction was included in other instructions given. The following instruction submitted by the appellants was given: "When an agent is in truth acting on his principal's behalf and within the scope of his authority, if while so engaged, he also and incidentally attends to some matter strictly personal to himself, his doing so does not break the agency relation so as to release the principal from responsibility for the agent's conduct. On the other hand, when an agent departs from the business or service that has been assigned to him expressly or impliedly by his principal, and pursues some activity or object not for his principal and not reasonably embraced within his employment, but for the agent's own pleasure or purpose, the principal is not responsible for anything done or not done, in such activity." FN 19. The proposed instruction No. 10 read as follows: "An employee driving his own car to a meal is not acting in the course and scope of his employment even though he is traveling with the intention of resuming his duties after eating."

*77 IV.

Independent

C ontractor A greement *78 L Eqqe=e#t is, entel'ed lnto on ~ ~ Jibown ~t ~ 1he A,. ~d µ~ Thh Atr~4" _~ ~A:1~ : · id~dfi~«bow. !;uttjett to·tbo ~ Ji;d co~ti~~f~ _~en(·Li

c:®li8ctm- ta~ c11~ .of~)J.111tec.~wtth tJut ~ .atid Qllt.ot 4, -~ ~llilf .. .. l'tal·. estllte;-A,mi~ta&ho enpgem:ie~J~~1Qpm,vi4ef!m·~'*o{arw ata1u·18i!f1t-··· · to ~1Jt4rtS.'of ~ ~~t c~~, ~ -~ -~ 11nd subJeci::to iht condl~oqs -~ (~~lJ) · · · · - · · ·rovld~ J\~~ll .. . ,' Z ~11"'1. Tertm of tigaJtttl~Jrt _ dult· :aie « :~O l- .~~g .In~ ~ll A, A~ ~11$ :,~ ,eut ~ - tm lnd~dent ~Jl~r ~ ~aus-.n empltiy~-µ~ i~ :~C. no ~~b,Uity u,_ withhQJd 9r -p,ty. any· :ID®me or o\h~ · \iXd · o.a.· 1'$~,·•. cc,~~od

~ . ~ pi9wfe aily ~ :!t:t'er tethem~ .ot otb~~r.t~ ~tp ·~~ .~t ~,-~~eo~t<ir~bi.SW,Jldt~ ·

~lltfon,hip <f~lt~f~Y.· ~~ d~~~n '.tbllf •ppe,r,i c,n A~t'~ ~ ~ n. A1cnJ will be 6-ct··u, d~ his w Ju,r own tiustuess bours. l!id ttl cbbo~ ~ ~r =~~=·:/~~t~~~:=~~~=·r:~J~~ .her-own~' tli~ ·mµk~tinj ~qu~ -~ -,~~ metl)'Q~ .Ho~ci', ./\pf~ .·to mate: l;Jrokff.age; ~d wida the·. BY.-1'~ ~d ~ .. ot Edu~ ,o:tea~ . ·tr&® or p~loflill

~fwhfc:b Agent or t:tet~~ Jfa DKimh~ .. Wllftoui ·ot ihllflb m:g1Uli%11tion lb$lng the ~~lty t.ommltmcntJ.Aleul -a~: . ,uu~@S

to coanply ~lb all· Jaw,_ Md au. ~ w~ {l) and Guldellnes ~ appl)' ~ rho ~bilidoli ot~UcJitd ~ ·r:-,paui-,_lnd f~q and tc, 1ho ~ af ttlapliomi cett. to ~ Aseni's !ltriica or ~ -~h:lj &Una- or J>rl'Z'f)eed~ buym;

h11.01 *79 • I , ib ad!i~ 1A and oompff w(~. tJte Pdvact Pt)liey tiiit· ~~- Wnliami

(2):

p\\b~~m~ _~1o11m~.f\ltlln,,·www~~~~.., .. an_d'.W,itll ,*,,:,1erm~.or~ -~ Keller Willi• p~6e!I &am t1;11tt to: ~n:1¢ tor the~~ Wlliia1ii5 ~~ eud Ctlmplt w1·~ ~u~ "\Villi~'· pt~ollnes 11rul ~~ .

to.-~•~~

(3)

·"h· · r '. (i) to the; ;....J~~o and · . ot ®i:iwl:l tlllnlts ~ ~ 'tl,at · 0~ . , ' ' ~'1l""'"~ n. ' . ' ' p . ' -~ ' ' . " \,lfm ~ )" fV• .. ,• ' ' ' . . ' tbc· KolJ~, Willlmffi14emlilb,or logo, (b) ta the ~Jay and - of tho ~t)' ~lay ' rdld (lll) 1(fthe uso of m~ arid Wi,lUiws .oamea tndcmub and logo on th"~ .• L...,dm · tluU .-...-, Intetiiet ....;;..;.;.'1. _ett..t~e1to-sucb-wd>;;i.;... · · ,ed . --.~ . . ~ H+lt , 0~ - . . !!'WI', c. r;~ the enti:te ttm~ that Aa~t ~ w1tii tii~ ~t

~. ~ ~ · to list all ttai estntelutiriWi thatA~ttt·obtidtu and. to hlnd11l- alt iooI estste ~UoMlii whleb. Agmt ~sages in tbe •e

t)fK..8UJ:!ll WII.l'..lAMS JlBAi,TY. '*1d~ Btiitement « autJelauf® thai ),). Agent~ - n~t to d~ an~g by 11Ct¼C112t the goodwlU ~ -wllh ~et W,ilUema' n!Ufte-, ml$bt'~e ,blfeznia:b or rcputetlon or C$We 'the i,ub11i: io lose eonfldottce In lhe.Kellet WtllJIIIN o~cm, .

a.. . Autml will havtJ· no .authority, to incur ob.Iig.¢o.D$ _. on Ll~'a t,ehalf -~ ~ -(1).not r:a· ~mr~Y cont11~ a~!ia~ l¢ase.o~p~t¢ ~ che.~of~ (2)MHo lll11.<3>:~ .*° . DP,eft:<li<~ -~, :~ uco~for~~· ·~1it~ .Mffll>.of~1~ endof.#·lbr C:t>tlecti4_41)r_d~t .ln-ABe11~1 p~ aC(!()Wll any ~eek. mOJtay. Ql'dar orot.fulr. neuotiabli> ~mt•e payat,le:«; Lloenw.

3,;: ,ca~, •• iiaffiiii &'Q(l l.'ql1ir,se-AIJot:,ilfon . A., f4tso long a.s·AQc:ut•s ~IU(o'Q W-i~·d¢.~~ ~ ~, ; · · JIil ~ -fi'oi;tl ,Aserit ^[1] a:~ .• ~ ¥itJ~·~v,~~ wilt~ ~.for fled lllsbutaed through th#

~ Market C~tet in .111::C(J•~

with Keller wntumr~ Polldil$ ind- Gulclel~C:.. . :14~ wtii sbati:, ~ - ~mmi'MTons-· JJ, fu, Which eamoct·. on tta1. estlfe ~olU' - wt~: thee«)~ Agent JtpJt$®lsa-Matbt Cen1.et ~ent as t,uy~:o,• ~ : in ~ . _potltiea ~t µ~~ o,~·-~ty to It~ llll~tting and_ ~~ ~~ ;~laies c,f thl -~ter. µ~,,.~t ~ eo~oll spll~g and.cap~lrlg wU~es ate defiotibed in . 1 ~o ll\ia A~e~t. Agept -·~l~aes that U~~ ~ sole dJ~oti Sc\1et;(ule to changflh~ PQJJ~es •. Aaei:1t'1~m~.,~.wlll ha payable onJy &om olbJie<l ttmw1cttotts. aild Ag~ '41qnot draw or born!w •Mhut @Y cc,mpensation pynt.cn:t.

c. Li~ will:~ lht,ftillowing~onstS Clli A~et1.t·s beli,J!: _____ _ *80 ... , .. ~tPll1hll ttie- coat or his nr -~ ·own (t) . red o. A8Mt wrti ~ solely ~1t1 lh!blllty tstAte ll~ ·fellS Bltd ~~(>nal ~ (2).~~ ~~ elfciri; pnd o~n cards, .yaM. ~ . l':'~P ~,: ~ - ~ -~

(3) ~~ .. (-4) b~ ~=· ent Md Mafott.nanr~ attd (1) ~ ~' -~~ an~ o~et. ~- ~'- (S) ~~ eosts;_~lub, tfues. tuid oiher ~ litrildMt tll : ~ : ~nQ,m of f\Wh,~ MerriCt1 as an ,~•tmt. (6)· Jsi~ .~te . by Xt:Ui':r. WUUahu ~r I U~ ~n. . !~~$ad •'· . mid~? · _..__L ,,h• .for.· ,'tUti,I ·,.._.:, _J.,.._, ;:;,;;,. and'~ "-•:-'-U -~ •ti)··tha Kd.l- .1t.w-,C(ll1\ w=~ ~ . _.. J'f·~llll~tlllt;l~ ,,._._ WC f..a, .~ . . . ~ - . ~riclpado~( ~11). (t()'OU , .other 'bimeflts of'.ussoQ~O;l,~ tJidJ~ ~ ·(co~y~ pity ·uy ·or tl:ieie exp lmSN tor; your:,e'itld d(ldj~

tiun;; ili• -~proprlaie .dderlp&i,; from Ln . tn 3-,C.J .that if Ageui do~ 11~ ptty ~ hrtietptitio11.Fae$ bf full wheu E, Agent -~ du~ QCM.1i-et may ~ -ci any unpiid itmount from Agmt's eomm.wfoll:!. p. .Wlll ~" 1:Ugibl~ ~ pattlei~m tha.'fWler W'dlililn.t Profit-~haru:lgprogrm ~t u, tho .. •e extent ~ 911; .the· iwne term$ 11.11 other Keller wm.l~ : ~.~~ Atent ~ .a Keller WilUDmS m~ ¢anwtpiult ·~ un~ds ~flbtl,l~ Wo~.lt ·~tit~ .hi -~\1,$1 mniun with 1lie Keller die Profit Sbiomg progra.'it.'and. lhal_ ptutJc.lffid!nt SIil~ .·~ WilliDmS~?fW a_mltlirnurrt ptriod t»r~ 'tlith'~f,its~t Vffl~

·4, LlWt~Tiailftllittk.ti~o . For - ·rotia u A~~t ~ .ei~on-.With. tho-~~ ~ ~~tln~ i ~t .has p~on lt>d•f...m h¥i 'ot hei.yntd sie,u, );wimea ~ me the KF.UJ:ll WILLIAMS REAL TY ~Jljd suh,!~.th.~~ WUJl&iris' ~~ ~ letUibeail·ud: othet b~fd~ -ot"tf\o,iltWOzk tn1d toxt. tt~ · wiq -~ tqr· Agent fJ>. hav.e :A H~w. mtth!) WwW.ltw.eQffl. ~~ \rut. - ~"1qn ~ Kallar. WIQ~ -~ ~P~ \Yith. any paU~ i Utt with~ ~ pro~!I ~i ~ti Willltl!U'

impo~ Agenl tnl)Y no.t ~ . tbit ~It~ . WUllant.S riAni~ ti,rloat, cu,- or ht: ~;4µ11~ ~e, - «. . web51~ wttb w!Hcb Atenru ~ . or~ - with: 'lli' ~ .:~ P~ JOSY. ~ ·any mtcrii~t ii,d\r~lli~t ~ ·A,~f pl~ :When, Aa~t's .~~ Omt.er tennbml~ his or il)itt petl'4iUton. to,: iue 1he: :KBLLER wn.t'iAM$ REALTY ·name fUld logo Wilt. l.l?ll'O~di~.O?*UY: . ~ - aitd; Ascnt il2\tst faunedllli~y:·~y · ull' b~ · r. that

-~~ wwt•• ~a~ : AJent :with 1he..Xellor W'dllami; ~~if and ~mt ~ply~ gutddin .. :and ptO(;ed,,u·crre~g Wfflite. ~b~~c,;,t o~ ~~\'1M<, lf~,Wlt,h l(jl,ltt . WlUlatrta'

~t ~ : ut£4 .~ Vlliilllion.afthi, Km,.t:.e1t:·\VIU,tAMS RRAl.Tf.~ Ol'' ~or,• ~tlalj. In• tiom.tu:itaiu.~ .AP1i.t wilrimmedlafll'l)I ~ ~tlon c;f1he dnnwn -~ ·til ICiiller. WiUwna withoi.it COilip~,a.tinn.

. s. E&O Uabillty ltmttau~ Ind~.1%udft~tfc111 io obi!ln and PA)' for a.to lnsuratl~ ·cov~ errors and omlmon, A. Agent~ l)l\Wldtis. Alffll wlU inQJ!liml to the proresslottlll emfees • ~ ~A1i!II ffl.Otjate ~f urrango for Lfoei,see IIQd ·Keller WUllania to 1,,.,. n11.1ne~r u n.dditl~n:n! hmureds ltt A-geu1 1 , &tO

*81 . I f . ... tb immtr1o Jl?tivtde.l'.J~ sud Ktllt1 Wtlllm,11ot lm fu lmilnJ.ttto pofl~ and.lb~ 30 &ry,l~· w,tlcin,fibe -p:oU~·s CllJlclllletlon ~Jittn-itntW.;].

·"UabUitt* ·in~ :.u UilbUity; Qlatw. ri>t pwp~ . er s~om tc.~ ·.s~p~

B.

.-ihit &Pfflf.~ ~, mt:u?$ • · s:~t oror in (:O,mecdoii dmnages, lo~ oos1s·m~ with -a P#;ttfctitat iilotdent-or rituadan.

. c. · If and 'U) dle txtetit·As~ faiij icr~ Llc~ imcl K~Ue.r Wi~ apt1ut· risk#-~:ouinlY co~ bfUO ~ A.gent.~ to h1denuu~ aru1 holdL\~ -lll:ld all lJafx1ii)i d,lat tJi;em~ or 1'ellet :Williams ~ KelJerWilU~ ·hanfil~ fr6m··~ -~ of btcacih of any law, reguhn!on or t>r ~ on aocotin.t of.A!J#nt ^[1] s bitentlOIJill di~ that appUea to Agenttr 1tcti'C)tt$ or tu:tivifies· a11 a-ti~ stmda:rd of C<niduQt real estate ~I:$ ~

t>, Fot -&b not cuatomiuity·oo.vered by E&Q. ~S\lfatl'~_arld tot .t.t-.bUity 11:blnJ li'Qro ·A~ent•t nea).le.eut (Uhln~ona»· ~prd or~ -of tQl)I I.aw~ •ation or .atall.da(d of '*' a llllCUSld ~on~ ~~ qplies ~ -1-e=t•a actio~ or KCUvhias JUI· esuce sales ~ . aa~ K!Jlle:r Willlaitt$ }Wmlw fro~ iwl. agidnat Al¢11~ ~ ~ -lndm~ Md {M)ld Lf~ that ·,. ' · ta e of ru,y'LtabUit).' ~ equali.the pmeatiifi'ofco~oM paya~ to A ent-on

· 8 ... ~!-~ ~oi~_~t -~~- o~-~~:.~ -~\'.~~e-~~ -~!!!lf .~ ~ .... ·· ·· 6, ~dtv~ Cts\tbUta llti.d Collil!len(taJ nifi,r-.'1iOm,,' -.~ .an'd)rofitt,i. that A~ Ind .asr.ccr: tiuirJiit.~ ·tU:el,u~ .. •plze, A. .. ~ - :tho relatfonsliJp•1 -~ori at J)'ei:$0iililJi . ~d~~ hlf'~t¢atl,~ :U~ pro~• · drnf~M ~ - ~ -~ -, ~ : !s po~es IQ®l'atca-Wlth· the ~. ~ (~11~.v~J)'~ .... Agb.tt~s ~ , c::6~~~ yalliabt~.~

.of':Atjciit .that .,re et&tt4# to ~oflu ~ It wiJl-Jiti~:d\llbit·tbe ~, ~fN1~·11.;~~~ -wlth 1h!l:Mmt ·Cemcr or .at sny.Iatert#ri;'

. io o~ ~ -:.~Jo,it,A~t·s n-.ti ~~~~~•~,et to dop Agmt frtlm taldng ~ -(If ~t hit As~nt~ ~ WhCJJ.lib.or her ~hitl~mhlp :with the Market~

etuu: and ~r -Madcct Center ·aaenta have llpOSlt l3~ ~t. ·1hit· Li~ ~- wstantirt ~ · •4 .aem. m1~.ia1 ~ti~~~ lll~ :t.o ~,1~p.@ ~t -~ l$am; ~t fi,r Agdn•il Pa.tit, whloh.u t1(lt.co~ by~ · S~bri- ti,B; tho~ ·~d pn:,fl1•

-~ ~!"- bought or so1d ttal f.SUU! ~ _the. ~t Cetlter and 6f"Cliltl y,hg of~~ iw &S$0ci~ with the .Matl(et ·eet,tt:t comtitutc wl~le . busbii.m ,i,.uets of tJ~ or other ~ ~ ~ ·MUUcd to p~cµt a., ~r:didenu,.t:~6u. 1hrit be.or tlho

,Agent p~ wi1I ~t.,:dutul$ ~ tfm·e ·of Ageh1's. MJOdatton wi\h ~ ~t ~nw- at · at -Y lltt,t.·~ dlYiitae. san. ~o or ~~1&10- io any~" exct111l .U~ othDr ngems ~cl~ the · Mat'.ltot ~ o~ wiili L~·, pe~ito~ b_tltb!: m~ _with

at tlse Keller WUU.UU ntpnlziarion tlia Jd.l!!i1tides ar Jm)fites or aiiy: p~tm wh<> ho bought Of ~ld -ieal estate thl®gh tlu.1; Matbt : Cetltor or of Mf Ii~ thal..U~ bu _ ~ltd . to; ·ihe Markee ~tet. Fujtlier~ Auiitt prom!~~: uot io citn.t¥,l ~Y ltiob ~uslp-~ifr-er qeut tlr to use· any· sueb pro61~ exupt in ~~nwith~,~~f~~M~~. ht1•4 1NQRJ!l4tlMrcbtt(RAQMAMBMHNl

*82 - , !

., . . 1.- tu;m w ·"re~nd _on ~th Ui.t ¥at~ Ceµ~~ _ A. Aae:nt'$ ~Qn -1:9~~ f'o,f-1\Il inde1mlw. period,. Eiib~Ag~ _«:)t' U~ ~gent·; usoetstion WiUi the Market ee.i~ .t auy.thnej. _lilay ~te wlth rpr without ·cit Use or prior :ootice,

n. t~11

:;,ny

of ~toi'a ~ittl _oil.'With thaMadcet ~ Wffl 1)1)~~ of tli~ continuing- tfshts .rlt; obll&adam or either A£tnt ot·LI~ u:nder ·thl!i_ Agreem'tnf. pai11mtlti:rty-tha w~

in Secll~ (i, c. ~ Agei:!lts ~ati'oa ·wi~- ibe-. ~ -~ f~ my ~ -

~fuj

~ will wel~ -,ati~ allow Agent to cab·atl sioli>"lirntJBS and buy« agency COtnraetB ~ Agent ~'It$ ~IW-,,lt fbrobtlµxu.,.1( AlCUt.tl\aretl·ll$tings.~r ag~cy ttmhcts 'Wlth oaiet eaeu~.bt ~ M~k#Ccn~, flilt'~ or~ r@Wb with Ute·~ -~w.

~~~will btlt AsentwiU~lv~ bis t>r her Mt ~:«,ftM reJW!d com.om.don wheiu wa·oruu, pi'opelt1

closes.

a.w,dad.on · wfill. die Mmet C1?t11er ~~~s, u~ MU .p. Mu - ~r$ ·on ~o~ . ~etlons' fn-a,e~~ w;tfotb~ ci>nunlmon tontfnue·w pa~-Agtlltts co~ona spfJ~~ln~w.Uel~ Umt awUed on tl!~ d~ of A~ ;:s 1e~t16n. .

. ow U~ _~y Pinfolpatlon f~- or. olbet liml:lunts: _ :E. If' A • lit, the ~IIS Agent"s ~t:tiati<»i. with tb~ ~ Cei\~ 1~ or if u,: amoun~ beeclm.e due altar ~on. ·.~ aittbodi.ei Ueen,ee 'to ~~ct ibe ilnt®b.t-due. ffum any CO~OUI ()f otlitir amounts. due- Agent u.btU Agtrnt ^[1] 1 a=olll'ii whh Uc~ lia!! beim .fully prdd,

8. ~f#O!itltft,1• · A. Agiml ~tints r~Uct~ .~~ . (t) Ascat·;i~ 4'1111 ilccnRd u • ~ : -~ b~ktr pr sai~~n (a "It~ ht ibo.stato.tn wblth th~ ~ -~iU~ ii~~~ J\tu!nt la '&1ate ~o~i Ji¼il 1?$Wis_~~Qnlll iri lkal ~ : l;illnUdy.a~JCJ~a ~~

. (l) A)lCti_t Is iWt t:1ow, Wid bas n9t bc.m VTidun ~ la.st five ~ a ~J . in Any tawmt al{eging ll.~iesshmal rnbc:onduel or . vJol~ti~n of~ d~®e _ 1tade ·piotl:ctloB llw.n~r is •tcuritntly ,ubJ~'tn mt·iQVdtlkatiori b)--,. pni~cd~er ·«inunlssion or eomptllablet t>Vendght bodr. teat ~ {3). Agent: :~p~ly Yc~js ~ - warmnt.t · that Agent ls he lO ~ ot CO~lment to t:ny With th, M.a:ket ~ 11t1d 1bat Agent ls not bound by a p~ other rul ~ ~PMY• ogency. ~attcm, ~ J)OtSOn 0t. ~on -that pmhlbtts or ,pte.vents Alt@t ~ ~chuliig wJtb. lho. Xe.I~ WUltama ~d'oiJ.

(4) ~ ~ptc:30n~vo. of· LI~= M IuUct WUliaiM bu -~ w.t . 11 Uvµig~llin-' re,iddetttfaI· rw ~e busi1teitt. wh~ll¢r: 'W11rir;h,j part.time Agut din~ 1Nbf!PSND§N'CCQN18ACmBAPBISMIJ(r ,., . *83 or !u$t¥o. -1\g<iut ~~: that-the predo~l m~ -t.i~ ~ - W:Ont# In.me Kell~·Willl&ns·wpmatton fs:througldh.e ~eof _~ ~ :Md that.mis,~~ ~ ltl_C(Jffl4 m B.ficm may~ .b. purely ~1emenw .,

. ' B, UCc!DJlte ~ to Aaene that ti~ Qt'..LJ~~f~ ~p.i •• d . '.l a:~~~..i ........ - _ .. estafebiok fu the sWt, bi whfoJ1 th u..:..r.ct ,......,._._is 1o--- .. ~ . m-. . . . . . i,_,v.uu11, ~ ~ w,Y .u~

- g~ MJmllu~w fnjvMbllil A. _ rf MY )'.in:wJdoIJ: of.:thf a A~ment fa f'ouitd to M v.atd t>r un~le by any

,I

-court er arbltiati<.>n pllie11 the findtris. will ~va no. ~ffwt r,in- any ath~ l)'ItMsion of 001 Agr«ment. fllld t1ll titherprov!dom( will tctnl\ht In Ml r~ End efftct. thm.~U~

)l . Tbb, ~~ lnmudwa Schedule l a.~ MY l'ollci'.el and .Onld~ WUHam; i~ C<ll:1Stt~ tb~ en~ 11~ -:Wid ~ b~ . ~ -~ -and .. ~ l1nY .tlrlol' ~= or ~It

. ~ -~ . i.Q -~et aubJ~ matwt 9( dus Agreemettt. No chanp, illnen'dtiien! c,r: w«ivei. 6.f @Y ~on of lltlti A~t will Ile blnclliis unf est hi wntfrrs_ and signed liy both Ageilt and Licensee.

· ~~· ::;- .

. ., ( . . .·' . . . . . ' ' . ' · B ,· . . . . . . . . . . . . ,7!P"' . . . .

i -

~f·.

I ! t

*84 · .1

I

INDEPENDENT CONTRA.C-l'OR·AGREEMENT ScllElJULE: l

: !

· i

KELLER w:u:.tt,J,1S :ru?ALTY Lake T~visMnrlttt CcJ11er {hcrclrt.itfter refen'ed.16 !i ^[11] Kciltt:Wlllwta'j ofibri tb~ foltowing commlssion sttu~tuct: ·

i I I ~0% to: ~fer Wmiltit1s _o!~t ~,QOO.OQO ~u~tl¢n (up 10 ! . . .1Q% C'.()mnitsslollS: to A&~nl!i I

I

Sla.~OQ comp~y qoll$'$ paid); 10.0% to_tnmissid,~ to Aie,tt iuterS~OQO,QOO)m:>duction wiver.sat,-·(as dewrmined by date Agent Joined l(eJlerWilUams}- l,lJltil AJJ~t'SMXt 1· : l I • Th~ igcm.'s Jo.hti_n_g gii;,ntl!Js deietmined u~mffita, and :by _thtt,mo@I Afi.erit tiisnt ml~ Keller WUU!Ul1$ receives Agent'$ l'R.l!C .9ril.e;mlan~s Uccr1se. OFFICE E10>ENSES; som.ri: busJnes-s expe• (i~~ ~onthly CO.PY c::~lll',g~, prlWie,l)ffice rent, voi~l, -~ctiou f~; ¢<c,), wU1 be:· 1t·c 2~~ ~ynf each ~obtli •. If the: b~I ts not pnld ~l _thili ~t,, blUed'.to Agerit-hy'l(:ellcr Wi ~-~ oil a monthly basts, AU Amounts owed t~ Kellt:r Wrtllam1· arc: 4u~ in fuU by

_a ~µ.oQ -~~-~- Wi~I bf~ to the .~toinn, 'There will ~w ~ a $5,00 per day feo addedt 11fter me 1.~ ·c:1(1he womb until the blll,.JS pBJd irt tWl_. tf~e bUl-beoomeJ ' 'i ~°et~:·::a~Ji~k~:;:s~~~

-:~~W~dq!:;t'

·~~~~~:::~~~~~J~~tf~iP:e .

' i

. !

itrtd CO~)' cant privileges wilt bt, tumed oft'. fri>m wluoh 10. set= ~n~s, voii:'emlltl ore no eamn'd!SIQt'li -·u d~rlbed ~,ie)., lhey wni bc-b.Ultd i1 $25.00. Onc.e ~ 41genr has rear:he,hhelr.cap~l~000.000 in prod1111liott i ; 1;

t~otl.oh fee for each ttansnctlO# that Qleiffl,~ fbr. the rem~ct ot1h11t ~(~mry '/Mltr Alsc>. Qlp p~y{"ft· i. ogcnui are ~nsible for any Qftheir.Bu~r"s Ag~~s and.Astlawnl'iJkllb,: · · ' tn_4il,e~n~· ~m.~ party for nrtj ~ --~nntmites.A..itenf sJnd~~"ni . c-o.n:craoto.r stana With Kelter W!Ulf.m~ !' i. Aj~ritffl.ltlwrized<:eller- Williams.tu dedliel fiurn mits~dlng ~onunlulons, ~l 11.1rtounu o\ffi:l lit the .time oft1,~ tc~tnation of thil agreement. Agcnl a\$0 authori:i,t Keller Wilff ams 10 d•t au amount$ ~ by agent •fter·sud\ ~ate, when tho~ amoun11 are m~um:d un behalf of Agent by Kel~ Wntlams (ie. Al30R cllirJies, 1In~~en~dt71i). MY comsnis~tol.\ lnOOlnb ~111 le-seized by:JCcllct WIUIIU'.ni to sautif)r tn~rues owtd Keller WhUams·\\-ill be t\llly da~mtn~Qd nnd Jj:uUled ln Asent'$ b\d~di:111 Contt'ifetor ffle,. Copies otlhls

' ' i dac:ument&tfon $hall bp sup~Ued up<!11 ~tWl. ·

I

--'--------4-~ . ~ .<:ro-7

.....;,...i.~r.,:.-4,1'

()iw). '! ··-,j

r;A':' \~I-....

!

'i I

*85 V.

K

eller Williams P olicies and G uidelines *86 KELLERWILLIAMSQ Revision 4/1 /15 Exhibit ~ Witness -: -~-=--ehm.i.---+-t----.-

--r - - I lo Date Kelly Fisher, CSA

Copyright ~o 15 Kaller WIiiiams Roalty, fnc. All rights reservod. KellarWil!lams Roalt),, Inc. Pollcl68 e. Guldollnes Manual, ReY. 4/1/16 *87 Pages Market Center Must Update Tho foUowtng pages must ba updated by each Markel Centor. To update aM pages bul the Ethics, Mnrkot Centers ontor the appropriate values In the lndlcaled nolds. The Code of Ethics should be printed by !ho Market Center and Inserted Into the Policies and Guidelines Manual where !ndlcnlod. Commission Spllts ........................................................................................................... 4-24 Admlnlstmtlva Foe for Capped Associate..... .. . . . . . . . .. .. . .. .. .. . ........................... 4-24 Markel Center Hours ...................................................................................................... 4-28 Personal Real Estala {Buying, Selling and Leaslng) ...................................................... .4-29 Unpaid BR!s ....................................................................... _ ................... , ....................... .4~33 Insurance ............................................. - ......................................................................... -4-41 Personal Roal Estate: Buying, SaUlng and Leasing ...................................................... .4-42 National Code of Elhlcs/Slandards of Practlce ................... ................. ........ ......... . G-1 Commission Polley of a Market Center ....................................................... .................. H-1 Mlscellaneous Pollcies & Fees of a Markel Center ......................................................... .1-1 Agency Polley of a Markel Center ................................................................ _ .................. J-1 Pollcles for Teams and Groups of a Markel Center .......... ,- ............................................ K-1

*88 Welcome to Keller Williams

We are proud you have joined our llrm and we aro excited to bo your partner In bu!ldlnG your

career Keller W lllams Roolly Inc. Ga c mpnny led by successful peoplo, for successful people which offers many opportunllios for career growth and development Quite simply, the Koller W !Rams goal s to holp you build tho slrongesl real ostato business In your marko We want lo assocloto lnlerdependonlly with tho axcepllonal real estato sales people In our Industry. Whal makes Keller Wllllnmo un quo is our ocue; on who Is our ust mer nnd partner-you. This focal point sets the tone for everything wo do, from how decisions a o made, to our compensallon opportunlllae. Fvorything aboul Keifer Williams s un que becnuso lhe company s bu II around what our assoclalos believe is beat for the r cnreers. We believe results come through people and that opportun ties abound when careers are bu It on this phUosophlcal foundation We bellevo that ii lha oompany develops lhe ndlv dual, thon the lndlvldual dovaJops tha company. We nro more than a real estate company. WrJ are a culture and a baliot syslern in action. We are REALTORS®who through the dally operation ot our own successful company, dlscovered a better way of runn ng a raal estate company. We uncovered a helter way of life for ourselves and our asooclatcs, Our dollars are Invested right beside yours-and wa are dedicated, 1ust as you are, to providing thll best service to all buyers and seUers. I encourage you to "talk the talk, walk tho walk, and Hve the life" of the Keller Williams way or dolng business. Wo are commttted to support. and help 10 assure, the professional ~nd

*89 -.-----·------·-· Section 1

How to Use Your Manual Effectively

1nls manual has baon spec!r"1enlly designed for yoot ln order lo work "Interdependently" together wo must make sure everyone understands our poficles and guldennes..

1. 1 Definition of Interdependent "On the malurity continuum, dependence Is the paradigm of you-you lake care of mo; you come through for me: you dldn1 come through for me; I blame you for lhe results. lndepondence Is the paradigm ol l--1 can do it; I am responsible; I am self-rollant; I can choose. Interdependence is lho paradigm of ws--wa can do It; we can cooperate; we can combine our talenls and abUIUes and create something greater together." ^[1]

1.2 About This Manual

Your manual Is divided Into the followlng sections:

• KeHer WIiiiams Story and Phnosophy

Keller WHllams began as one dream and Its success led to another. This section shares lhe beginning of the company and its phUosophles. By studying this section you wlil become familiar with our history and philosophy and be able to share It and apply It to your own businoss.

• Kenef WIUlams Belief System In Actlon Keller Wtlltams Is the result of an lnsp(red vision. The company !ncorporatos an lncomparabl0 set ot beUefs found tn no other real estata oompany. With tho bollof system shared In this section, Keller WIHlams shows it has eatabllshed Its own vision and dlrectfon for the future.

• Kellar WIiiiama PoHcles and Guldallnaa Keller WUllams Is l&d by associates, for our assoclatesl Evory policy and gUldcllno in this manual has been created and reviewed by our Assoclalo Loadership Counctls (Local, Gfty, Regional, and lntemalional) and helps to insure professionalism and fairness In our company. Its number one goal is to empower us to develop matkot dominating businesses. Our ALC wtll rr:,gularly review these pollcles and encourage you to learn thorn and share them proudly with other associates, buyers and selers. These policles and guldellnes guarantee all of us an lnterdependont organization of tremendous crcaUvily, high standards and elh!cs.

• Keller WIiiams Risk Management System 1 The 7 Habits or Hlghft Elfm;t/Vfl PeoplfJ by StephBll R. Covey KallerWJlliama Realty Inc.~ Pollcloa & Guldelnea Manual, Rev. 4/U15

*90 Minimizing your exposure to camplalnts and potential lawsults through risk managa monl la tho l<olter Wllllams wo.y. This section outlines our simple U1ree-step program which wlll aid you In affectively managing potential risks encountered In your real estate business.

• Kellar WHllorns Overview of Costs to Associates This section discusses your possible business oxponses. Most businesses fall, not because they don't maka enough money, but because thay spend too muchl Please always remembar this and Invest carefully when &pending money on your business expenses.

• Keller Williams Rolorral Procedures • Ketler WIiiiams Recognition Program • Addonda Koller WRllama Realty, Inc. - Pollcloi; & Guldollnea Manual, Rev. 4/1115

*91 Section 2 The Keller Williams Story and Philosophy

Kelle WUHams Is lhe result of an Inspired v slon. Our talented learn of assoclales who created Kaller Willlams were charged with a menu mental goal: "Create the Industry's finest nterdependent real estate company."

2.1 The Keller Williams Story: A Convergence of Ideals Today more than any other llrne In real estate hlslory agent and broker goals seem to be diametrically opposed. Real estate agents require their cotnrnlsslon programs lo be exceodlngfy high, yet brokers a e becoming more and moro awnre that th s presents a truo profllabillly squoeze Two people can't save tile same doaar Solving a Riddle

2.1.1 Gary Koller and Joe Williams established Kollar WUllams In 1983 as a lradlllonal real estate company. The firm had grown to ovar 30 ossoclates by 1986. Due to the pressures from 100 percent conceple, they found themselves facad with the above rnentloned commlsslon-profltablllty paradox. Their lnlerdapcmdent approach was a creative and toarn-orlented response lo this riddle.

2.1.2 No Compromise Approach Gary and Joe lnvited !hair associates to n mealing where they outlined the commission· proflfablllty .squeeze paradoM; however, both broker and associate determined that neither was wllUng to compromise their earning potential. The resulllng unanimous solutlon combined tho best of all worlds with a progressive approach. Rather than compromise associate and broker goals the team Incorporated the two. The result-the ofllce grew to over 1 00 associates In less than flvo months. Faw would argue that the Inventive Kell8f Wllllams programs they designed aro some of the biggest advnnees Industry-wide fn broker-associate relationships and Income oppotlunltles.

2.1.3 Combining the Incompatible The deBlre to engineer a truly wln·wln company with no limils on aasoclate career and income opportunities led the reasons ror the change. The Keller Whllams T earn discovered a way to champion the highest J]osslble comml&Slon structure within a fuM suppart environment with expansive profit potentials r or I.he broker and as&oclate. By doing so they created a method for combining the Incompatible-achieving both associate and broker career end Income goals. They then went one step further by advocating the concept that a commission program would be Just one fonn of compensation associates would have-not tho only one.

KollorWUffams Really, Inc, Policies & Guldeflnes Manuat, Rev. -4/1/15 *92 2.1.4 Unexpected Demand The Keller WIOinms System bacame l umph Kellor W lllams associates asked Iha firm to expand lhalr opportun ties by oflerlng the system to brokers {n other cities. In fact, the first affllla1e broker was brought In by a assoc ate. The San Antonio Market Center was so rldo In Progress" a.ward for bolng tho successful its first yoar they reco vod the r C mmber s area's fastest growing n-ew business. The reeulllng demand ror \he KeRer Willfams System was mexpeclod and as a result Keller WIiiiams did not emerge overnight. The enliro company is the result of a massive commllment It was a commitment rrom a highly successful group of real estate assoclales and brokers. And it was a commitment of lime-tho time to develop Iha best, to reject any shortcoming and lo rethink, rado and continuously parlecl a system poltcy or program until it was right fot Keller WM11Brns and Its associates. After this extensive benchmarking and lrandtng development e>cparlance, Keller Wlll!arns oreatod a new ovol of real oslata company. Your company!

2.2 The Keller Williams Philosophy If the company succeaslully dovelops Its associates, then Us associates will nuccessfully develop the company.

2.2.1 An End to Compromise Between Broker and Associate What makes this task so stgnlllcant s tho reallzal!on that compromise Is lnherent in so many real estate companies, For lnslance, high commlsslon plans usually mean no support, no education and no team environtnent. Superior support, oducatlon and loam envlronmanl usually load to low commlselon plans. Neither compromise creates a wln-wln company. KeOor WnllatTis Is lnlerdepondenlly designed to put all of these compromises to rest. Kelter WIYlams tncorporatos an Incomparable set of concepts found In no othor real estate (;ompany.

2.2.2 A Clear Mission Kellar Wllllams has developed a clear sense ol ils own vision and dtractlon for the future. Keller Wlfflama Is a training and consulting company that also provides the franchise systems, products and services which lead to productivity and pro11tnblllty. Ketler WUllama thinks llke a top producer, acts Uke a lralner/consullant and focuses an Its acllvltles on productMly and profitability.

Kellar Wllllan1s Realty, lnc:. -Pollclea & Guldellnes Manual, Rev. 4/1/15 *93 IV. lnstJrullonal and Promotional Media Advertising V. Relocation and Relorral VI, Ancllary Business Opportunllles VII. Recognition Vlll.Communlcauon IX. Marketing and Customer Programs X. Compensation and tncome Opportunities

Through this process, Keller Williams turrni the products and sorvfcos recommendation and quallly control prooass ovor to Its nssoclnleR and affiliate brokers. The process provides markolpla.co feedback and Iha dlroctlon needed to dGvelop effective business loola when they're needed, It's part of the culture, Always has been-always wlll ba.

2.2.9 World-Class Image Keifer Williams Really is one of tho most recognized brands in tho real estat8 Industry because of the education, training and technology offerad to our asaoclntea. Howovcr, wllon It comes to local branding, the company strongly belleves that It Is the associates' brands that matter most. Building and malntalnlng a powerful, locally relevant brand Is tho most Important strategy for an associate. Even U1e National Assnclatlon of REAL TORS® has released research that proves that consumers do business with the real estate prolosslanal that they like and lrusl-not companies or big, haavlly-ndvorllsed brands. An offloo, a Region and even KWAI, always take a back 5eat to the associa\e's brand

2.2.10 Tailor-Made Education Keber Wlftlams Realty fs a tralnlng ru,d coaching company that also happens to be in the buslness of real estal8, Through its !faining division, Kelter WIiiiams Unlvarslty; onllne portal, KW Connect, and Its coaching division, MAPS Coaching, KeNer WQllams associates have access to high quality education during every stage of their career. A brand new assoolata lo an experienced mega a.ssoclato can find Iha right training and coaching opportunities to propel the career to tho next level.

2.2.11 Local and Regional Contrary lo most, Keller W II atns views he real estate Industry as a local and regional buslness. For th s reason, It has taken unprecedented measures to design the nrm as u team of regional operat ons. In turri the goal of each Region Is to becomo n major regional power by bulld ng major real estate forces In local markets. This strategy endows our assor.lates with the strongest possible support system In the tndtlslry, Everyone wins.

Keller Williams Realty, Inc. Pol!cles & Guk:leKnos Ma.nun~ Rev -4/1115 *94 _________________________ Pl¥fl.l!fHIIII 2.2.12 A True System

In tho Markel Center, Kaller WIQlams has created U1e rndustry's strongest long term economic; model time tested and proven. Thts was achieved only altor thorough resamch and practical experience. For many years lhere WijfQ only tw11 major real estato offlce economic models traditional and 1 oo porcord-desk fee. After lnvastloatlng both systems carefully Keller WIiiiams associates chosa to take the bast from both. Toa result was a better win-win ec:onomlc modol which fs a hybrid of Iha two. Our associates receive all of the support advantages of ''traditional" while gaining more compensation advantages than Just a ftdesk fee" concept. For tho broker It provides the lowes1 financial tlsk operating system possible within a full-support company. The KellM WIiiiams economic and operating system delivers where othors fall short.

2.2.13 Get Involved • Attend [)rlcntatron and completely read this manual. • Take part each week In the many oducatlonal, support and leadership opportunllles

available to you. • GET OUT INTO THE MARKETPLACE, BUILD YOUR OWN MARKET DOMINATING BUSINESS MEMORABLY AND HAVE HJNI Remember: Support your fellow associates and team and they will support youl Kaller WIUloms Realty, Inc. - Po11clos & Guidelines Manual, Rev. 4/l/15 *95 ___________________________ _..lh§Mii-

4.9.1.11 Complaints/Disputes Involving Other Associates

• Associates who have camplalnts/dlsputas against othafs should ltnmedlalely dtrect thom to their TL in writing. • These should never ba discussed with other associates or cllonts. 4.9.1.12 Conduct • Alcohol Consumption Policy. We believe that ii Is unwls0 to consume alcohol when working. Therefore, it ls a guide! ne of our company that no member of tha organ1zatton uso ak:ohoUc boverages during business hours. No member ol our llrm should come to their office and/or Markel Canter during business hours, or ofr hours, wlth alcohol on their breath, or to any extent under Iha Influence of alcohol. We con$ldor this to be a strlcl guideUne.

" Conduct at the Market Center. Everyone Is to be well-behaved and professlona at tho Market Center at all Umee. This le an office where professional businoss Is being conducted and you should expect a business-Ilk.a altituda to be taken. We want everyooo lo have respeot for onch other In their daily pe,oonal dealings. Thera should be no vulgar language, cursing or yelling.

• Cocperallon with Other Brokers. Please be very cooporatlve with other REALTORS$ for thoy hold the key to a great doal of nforma!lon. With their help, you can become very successful. Wo cooperate and live by tho oplrlt of cooperation with all other REALTORS® and brokers. We do not, by any moans, want to be arrogant and feel llko wo can do the Job by ouraBlves. We solicit lhe cooperatton ol other REALTORS® at all times for the banoflt of our clients. ll ls our policy to share information with other companies ond follow a prnctlc:e of lotal cooperation. This., of course, does not mean the giving of confldontlal 1nrur111atlon, or any matters ol that naturo, bul does nvolve lnformallon concerning properties that ara avallable to aU REALTORS® who are Interested In doaHng with our company In an open, above board manner.

4.9.1.13 Contracts 4.9.1.13. 1 Presentation to the Seller

Each contract should be presented lo the seller In person, wllh a comp!eto Seller's Slatoment and a quanflcatfon sheet on tho buyer { f you ca,n obtaln one).

• Contract presentations are to ba made n a professional manhflr and are to be dlstt.1ssed with tho owner reallzlng that many Items other than money go into a contract offer, For e)(ample, dale ol possession could be a determining factor. These are lhrngs thlll are discussed !n your training program and must bo considered at each contract presentation.

• The seller shoutd be given every opportunity to accept or reject a contract ofter . Kaller Wllllams Realty, l11c. Pollcle11 & GuldeUnes Man Ill Rev. 4/1/15 . 4-25 *96 . r • r 4.9.1.14 Dress Polley

II is lmporlant that everyone who associates With and ropresents Keller Wllllams Really do so In a proloBBlonal manner. Associates should conduct lhomsalvas properly in pubHc, keep ther, oar clean, drlvo courteously and maintain a wall-groomed appearance. Appearanco a tho single mo&t Important lmpressfon factor you have. II is important to bo well-groomed from a waU-kapl hatrslyle down to one's hoes. We are professionals; your manner and oppaarnnco should rot act this at elf times. This dress coda should Include coming nto a Market Conlor on an associate's day ort

4.9.1.15 Errors and Omissions (E&O) The E&O premium s determined by the E&O prov def. Markel Centers may have the option to 1. Deduct Market Canter asi.;oclate E&O tee from each side {llstlng or sales} through the

Disbursement Author zaUon n t o WlnMORE System. 2. BIii oach associate a Market Center aasoc ale &O fee monlhfy through the AccountEdgo Accounting Program. 4,9.1.16 Equipment/Software 4.9.1.16,1 Copy Machine

• Copy Machine wilt lnctudo a Code mochanlsm • A cost per copy will be paid by the assoclato.

4.9.1.16.2 Fax Machine • Incoming Fax • Outgoing Fax - cost por pago

4.9.1.16.3 Olher Equipment/Software Other equlpmont/sottwa.ro whfch lhe ALC may approve to purchase and which may be avo.llable In the Market Cantor. • Digital camera • Color copier • Associate software • Headsets for prospecll~ • Special computers

4.9.1.17 Escrow Deposits • Time Is of the essence when deposillng earnest money/escrow checks. • Escrow checks should never be held for any reason onca an offer has become a

contract. Keifer WDl!ams Ronity, Inc. - Policies & Guldelnes Manual, Rev. 4/1115 *97 • Al! escrow deposits should be lmmedlately turned over to the title company, or other entity named lo contract, for daposit or daposltod to tho Markel Cantor escrow account lmmadlately

4.9.1.18 Keeplng In Contact with Your Market Center l<eeplng In contact. wllh your Mact<et Center Is one of the most Important responslbnt\les you have. We suggest you contact your Mark~t Center at least every lour or five hours. Always check in whon you enter tho Center, chet.i< oul when you leave, slate whore you ara going to be, who vou Dro going to bo w1th ^[1] and whon you will be fn contact again. It you are off, check In with the Market Center at laast once, Iha only exceptlon belng if you are out-of-town. If you are going oul-of-town, pkinao make !ho Markel Center aware of that fact and designate who wlll be covering your business In your absence. A phone number where you could be reached n the event of an emergency requiring your attention should be. loll with tho TL.

4.9.1.19 Legal Fee Polley 0 Legal Fees wlll be split batwaen lhe company and Iha assoclalo according lo the way the commission splll was or would have bean on tha transact on. 4.9.1,2D Listings 4.9.1.20.1 Open/Exclusive Right to Sell

When we havo opao listings and/or oxclusiv.o r ght to sell, wo should always have notice In writing from tho owner lhat we will definitely receive a commission If we procure a sale on lhal property. If we are not the procur ng cause of the sale, then it Is not. necessary for us to have It In writ ng. Before we show any property or gJve any Information, we should have In writing lhal we WIii deflnltely bo pald a commission by the owner.

4.9.1,20.2 Contact with Sellers You should contact Iha seller of each of your listings at Jeasl on<:e a week. This wlll keop the sailors abl'oael of all tho markot activlly and any activ ty on their houses, One out of oach four cohtacls should be In personl This must be one or our strongest areas~ never leave our senars stranded I our reputation s bum on this guldellnol

4.9.1.20.3 Listing/Sales Flies There ls a roal necessity for complo!o rocorda lo bo kapt and rocordod so that records of transactions being parliclpatad ln by the company and the company's associates will be avaHable. All records that have to do with Hstlngs, appralsals, leasas, lhe hops of obtaining listings, contracts that have gone through as wall as offers or contracts lhal have laffen through are lo be kepi In o ma. Coples of all letters, contract& and agreements pertalh!ng to real estate, regardless of whelher they are written by our associates O!' others, shnn be pl11eed In tho flla. This la the only protection you and the company have In !he event of a !ewault. Full knowledge of every case ls Important. There Is no eXCUBB for the vfolatloh ol this guideline by anv aaaoclate. Keller WIiiams Realty, Inc. Pollcle& & GuldeHnes Manuel Rev 4/1 f15

4-27 *98 ___________________________ 1-ri!iiMII- 4.9,1.20,4 Changes on Llstlngs

It Is U1e associate'& responslblllty to make note of all chan[18S on his/her Psllngs ln tho Market Center llslfng Hllng s~tom and rn the Multipfe UsUng Service (MLS). It the change Is ot a material nature, tho Ustlng associate shoUld havo wrlllen authorfzaUon from tho seller and put II In the property file for pennanent record. Any flnes Imposed by the MLS for Incorrect or mlsslng tnfonnntlon are the rasponslbll!ty or the associate.

4.9.1.20.5 Listing Fomis It Is the responslbilty of the fisting assoclata to obtain app oval from hls/hor TL baroro submllllng a listJng to the MLS, It la our potlcy for you to provide the T with the following Information to obtain approval: • Completed liatlng form and worksheet • Completed llallng system form • lnltlaled saner s statement This file should bo ln the Markel Center Ille cabinet and ln the Market Cante. Listing Display Book OI' Computer, before lhe llsllng s put on the listing board and lhe sign and lock box go up. We understand this WIii always take coordlnatlon, but without followlng this procedure, problems always occur.

4.9.1.21 Market Center Hours G Generally, our Market Centera nro opon from lo.,--,,,--,--...,,,,.. Monday lhrough Friday and---~ to ____ Salurday and Sunday. Theso hours may vary wllh local practices.

4.9.1.22 Market Center Tidiness Our Markel Centers ate to be kept noat nnd clean nl all limes. Each associate Is to make sure tho work areas are clean whenavar leaving the Market Canter. This Includes all areas, or areas -which everyone has common use of the Market Center. We hopo everyone will lake this attitude and keop otJr Markol Centers clean. You should be able to bring anyone Into the Markot Cenlor at any time and ba conffdon\ you wm be proud of tho way It looks.

4.9.1.23 Negotiating Commissions e In extreme cases where the seller cannot complete a transaction without Iha give and take of all tho parties, you may nood to negotiate a commission. AH comml&slon nogotiatlons should lnvolva you and your TL, If posslblo. Try not lo ever make a snap decision on any commission negotlalfon request: time buys a position of strength In each nogotlatlon. The decl$lon ls ultlmately yours.

4.9.1.24 Personal Real Estate (Buying, Selllng, and Leasing) Purchasing or seNlng real estate (your personal residence or investment properties) la one of the greatest advantages you have as a real estate profoaalonal, and It ls our goal to preserve this advantaoe. i. The aBSocinle Is not requ red to pay the Market Center a real estate commission on

Ille portion of the transaction that lnvotves the associate as an owner. Kenor WIiiiams Really, Inc PollolOG & Guldellnos Manual, Rev. 4/1 15 4-28 *99 a. This ptovlsion applies 10 thoso properties that are considered porsonal resldanca& and Is limited to two s!defi per year, one as a Buyer and oua as a Seller. b. Each Markol Genier will determine how to treat personal transactions beyond two sldos per yoar and those propert es classified as something other than personal residencau. Each Market Cantor wlll also determ ne tequlrod cliterla to qualify for this "gill"

NOTE: The associate Is required to pay royalty on ALL lransa.otlons unlll the assoc ale fulf lls the KWRI royalty cap.

2. The associate Is requlrod to pay the Matket Center a real estate commlss!oh on the side of the transaction that Involves another associate. 3. It Is Market Center policy lo charge the associate a minimal lransacUon fee of __ _. (Check with the Marko! Contor TL.} 4. The associate must pay the E&O lrlsurance if the E&O carrier does Insure associate porsonal transacUons. 5. Tho Malka! Center must havo a copy ol tha contract on lhe date It becomes etreclivo, as the Market Center Is legally llable. 6. All oxponsas Involved In tho marketing of an assoclate's real estate shall be al the a~ociate's expense. e 7. Certain rederal, state or provincial laws and rostrictlons 111ay apply to Investment properties and/or personal residences.

G a. Each associate should obtain a copy of his or her local Market Center poflcy to determine If there Is a minimum company dolklr oontrlbuUori which must be maintarned bafore personal properties can qualiry without paying the company a portion of the commission.

4.9, 1,25 Phone Polley • All phone calls should be returned aa soon as po.sslble • All long distance calls are the responslblllty of and ere to be paid for by the

Associates plac•ng or authorizing the call • Polloles for any Call Coordinator System or any Phone Opportunity Tbne System should be developed In conjuncllon wlth lhe Local ALC 4.9.1.26 Priorities e It Is the consensus of Iha ALC that prlorltfss tor Keller WIUlams Roalty should always be: 1. Selling real estate 2. Highest posslb'8 commission splU. 3. Broker profit and a world class environment and organization. 4. Profit sharing to assoefates and the creation of a vesting typo income, not related to

personal sales product on. S. A producti\lity specific anvironmenl KalfarWllllo.ms Realty, Inc. Policies & Guldellt11t11 Manual, Rov. 4/1/15 *100 • f Addendum A

Keller

Williams Realty Profit Share

Accounting Policies and Guidelines

The following ara the guldolinos used in ravlowlng Kellar Wllllarns Market Center ;icc01.mtlog tepcrls:

A.1 Accounts Receivable All associates are> to pay lhelr Markel Center b~I by lhe end at each month rosulllt1g In a $0 (or credit) balanco. A $0 (or credit) AR balance occurs only when all AR has boen paid In full. Tho MC may not forco a $0 AR balance through accounting ru:ljustmsnts. The MC wHI oslabllsh pollcles on lato offk:o bHls and late Fees which could result In the returning of a roal estate ltcense. The MC will send demand letters vla cartlflod mall, "return receipt requested•, to all associates with Invoices 90 days or more past due, If stal unpaid, the MC wlU wrile off invoices as Bad Debt Expense. Accounts Rece&vablo between Market Centers are not allowed, These entries are In tho form of loans dcoumentecl with a slgned note (fncludlng terms for lnlerest) OR paid In full by the end of lho month.

A.2 Auto Expense

Should not excood $100 per month.

A.3 Cash Operating Bank Account signatures should lnoludo the TL and Operating Prtnclpal only. It Is highly recommended 1hat the MCA not be on lhe signature c."lrd because of a nnt .. ntf .. l r.nl\111,..t r,f lnt,.riu:I nr IIAhllitv

*101 VI.

L

isting Agreement *102 ~, TF.x:As ASSOCIATION OF REALTORS® RESIDENTIAL REAL ESTATE LISTING AGREEMENT EXCLUSIVE RIGHT TO SELL l/Sl!O,THISrORUBY P11111il0NSWtt0All6 N0f"~O,n!E'TIMS~110HOF ftl:AI.TONe a N:11' .MmlOfl2E). --lalolMoUTilll,O,lftt.11! 1• 1. PARTIES: The parties to this agreement (this Listing) am: Seiter. Ber.,., ,u,-4:lA M .• 71Hf fu,<_

~~xf:!§~g:

. a~, ~;r=- 1~~~~41~, ~ r~st' .-='1 bt- Clly,State, Zip: !ll~Jtt ~ ~J;ii± Phone: _______________ Fax: _____________ _ E-Mail:-------------------------------

Seller appoints Broker es .Seftel's sola and exclusive real estate agent and graots to Btoker the exclusive right to sell the Property.

2. PROPERTY: ·Property" means the land, improvemenls, and accessories described below, except for any described 't \;> exclU91ons. ,~-:la ji4g,,=,bb:: •- AddJUon, ~-t' ~A <i:S: ~~\&, ~ ~ A. ~e County, Texas known ~~~~=---~~-~-'.:""'::-' ......-n....,f=;s In 11!),. -~-~~--e,,,'-l-~;;!1---~~.:..L~J;;J;Ja;;;,~IC.c.:a.::t:U?~.:i._.:...c;.i~p~ ·address/zip code}. or as d88Cfl>ed on a m.)

B. lmproyemeQl&: The h0USC1, garage and all other flx1urea and lmJ;)rovements attached to !he above-described real Pfoperly, Including wHhout Umitation, the following permanently Installed and bulll-tn llams, ff any: all equipment and appliances, valenc9s, screens, .shutters. awnings, 'Nall-to-wall carpeting, P!irron;. celling fans. attic fans, mall boxes, televlslon antennas and satellfte dish system and equlpmen'1 mounts and brackets for televisions and Gpsakers, heatlna and alr-<:0ncitionlng units, security and ffre detecUon equipment, Wiring. plumbing and llghtlng fixtures, chandeliers, water softener ays1em, kitchen equipment, garage door openen;, cleaning equipment, shrubbery, landscaping, outdoor cooking equipment, and aJI other propeny owned by Seller and attached to tha ~escribed reBl pn:,perty.

c. Accessot1es: The following described related accessories, If any: Window air c0rw;t!Uonl119 unfta, stove, drep!ace !Creens, cut1alns and rods, blinds, window shades, draperies and rode, door keys, mailbox keys, above11round poo~ swbnmlng pool equipment and maintenance accessories, artificial fireplace loge, and conlrofs for: (0 satellite dish systems, (ii) garage doors, (iii) entry gates, and (Iv) olher improvements and accm,SQries.

~ -

Puge, otto

Exhibit > Witness -=y;:::::a.:;-y~/- t1_t" _ __,JN!lle1MAe11.1.ud

1- ~- l le DEF 604 Date Kelly Fisher, CSR

*103 •-•t•.., --4 ~--. _.._._ . ...,.., • to#Y\•t •• _., elU\,'IJM\111 IU Cr1J Ottltlf OOIYIPfl'IAllon Brokltr 11\aY nx:elve under thlll U8lli,g. f.l) Qmgr Em AQd/Qc Bmhl/l:lfbft Emf'lflll: _________________ _ E Pmtftdklrt P,dod: the day atw lhls llsdllO ends and conllnUl'lg 1or_/_Q ....... __ _ (1) •Pfotocllon patlod'" means lhG1 Um. 11111mng dl!l's "Sllr 11111in •nr ttal!Sfer of any IH i.lmplll m1eras1 In thl> PIUl)llty whe1tm by oral o, wrillan eurttmlfl( oropllon.

{2) Not latllr than iO clay11 aher this Usllng ands, Bl'Cltlf may 1end Sell¥ written nouc. spodlylng 11M l'lll'llfl ti! pllflOIIS -..hOGII allent!on W111S t:alltd to the Propel!)' Qllfng lhl, U.ling. II Seller agtHli IO 11111 1h9 Propatty rJurlflo 1h11 p«llec:tlon J:Jf)flod lit> • pu10n narnod In Uw ncUc:e or ID a re!allv• cl a p11rson ruunad In 11Jc 11111lc., Seller ~ pay Bloker, Upon \hlJ closing ol the aaftt, the amount Broke( would ~ been tmllllcl to recelve ti thl& Lbtiflg Mre ail In efeet.

-z?7"~ ~,e- A,..lfe- Au<-h.-lX ;;7105 ~Us*11co11C11nw,g wMI b9 rellllnad by 9:1!1JAd D. &g\J§lgoa· ~ f.oloWlng ln,pn,ffl!lllnts a~aodes m,,lt be ~ar to de-:-!skVtt;·:.~~~tJA': uw~ .&1=£1£f!'i ~~ . I; ~S:112!!.l&ur Toll pn.,peny Q 11 ~ not aubjtct to mandllla,y merntlerihlp In • prvpl/l)' =ffl'

s. USTING PRICE: sen« ln11ncta Broker lo marbl 111• Propei,y at th• followin\l pnc,:, ________ _ {Ul1/no P11c1t). senor OQTIIIS lo "" 1h11 Prapmy !or u. U8dng Plfoe or any other p,1c,e acc,peabl, 10 Sellar. Seller \IIIH pay Ill ~c;af ckl!lng J:Qll:I charged lo aellets ol mldentlal n,11 mall! In 'f911U (r.aflar'11 lypic41 clOSln; cmi. '" 111011 eel fol1h In lt10 Tllsldenllal co.-r.ict ionns piomUlgehld ~ Ille Tuas RMI £,!Ate Cormnlcslon),

4, TERM:

tf-«,e· f a2?/5vidand& \ 'S",,,pf. I /).l)J>. A. Thia Ultlllg boglnlzan Ill 11:59 p.m. CII B If S.llvr 11n11is lnla a biodlng wrlttao i;:onlr:U:1 la 1,alj lh• ~ btfore Ille date lllt8 Udfng bHQln#-and 1he conlrac:t

la ~nlifla an 1he d.ltt lhb Ustino bepis., !hit UStlng wil 11ot ~no.. 11111d wtll bO vo111. 5. BROKER'S COMflENSAllOtf: A. When e;imec1 and poyablt, Sellft wll pay Brokor. ,a {1}_-1,.4.,,....,

___ %oflheaaJoapr!t11. a (2)_ 8. !;am: &olett't campon,llllon Is e111111d when an)' one of 11w lolloTMg otOJtw !Ming- !his Llillng:

(1) Selef selll, UChanOcs, oprior19, egn>ll5 to HO, llgl'IIDI lo l?llChall(llt, OI' agttllS Ill opUon Iha Prl:ipllrly' ^[10] 811YOM at any P'b oo llflY 11rmr. (2) Bn:ikar lnlivlduall)I or In ccop1111!1«1 with IUIGthtr btoktt procur.& a buyer 1111dy, wllRng, lmd lltllll lo bvy 11141 P!Vf)V!1y II tti. l.llltlng Prb or at '/llf'/ 0ll11r price IIOlllpllil!e la Seier, Qt {3) Selk!r bttlcm lhls Ustlng. C. flmlll: Onca eilffltd, Brokafs c.ompcnaallo!, IJ payab!O efllltt during lllb Uo!&!g ^[01] aller It onds at the eatllerof: ft) .die c:IMlnQ and ftmdn~ or any aala 01' exctiangi, ol llll or part of tne Property; (2) Sellar'a relulal to s.a lhe PfO!Jell)' after Slollef1 campanutlon hi, bee" ea,ned; t,J) StllDN bnlaeh Ill lhi11 llstJIO; er ('I II 1uch llme u olhel'WIM NI ltlr1n in this ll$tm9. Ewket'a COlllfltnAllon Ill !!21. 114yable If a cale ol Iha P,operty do4!S not clole or lune! a• a ,e,ult QI: \I) Sellal'11 fallurll, wlllt®l faut al Seier, t.o d1Pver 10 a buy&r I dllod Of a lillti poiq' as n,quiriad by !he C!Xllrad lo $ell; (I) Jou ol llWNlr!Hp d111 lo foroeloaUna « 011-.t leolll p,acee<tng; Ot {ill) Sellet'a 1111fura IO ,a,tn lt\a Pnlperty, a I n,5111t ltltt aai. DI the Proparty. ol a cu11ally loss, lo ft,~ (Ordillan by 1h11 i.lollng dll!AI set 101th in II CQ\11Qct 111T

o. Qlbln:Congns11100: (1) 8rpaqh by B!W:!I.[ Undm a Cot)lad: If Sder callldl oom&11t mcney, 11\G salaa pilce, or damages by suit, campromlse, selllenHint, or a(/\arwllo lrom II buyer who br~• • conlniC1 l0t 11,e 311Je ol lhla Proparty 11ntored mta dutlllg thlg Ullllng, S.U.r tNII r,:rf Broker, 1!1et dlldl.da'ICI •l!Dm!Y'11HS and colfeellon aponses.

PAQe2ol10

DEF 605

*104 Residential Listing c::oncGmlng 0 B. Setler lnswcts Broker not to file this Ustlng wllh one or more Multlple Listing Service {MLS) untn ____

days after the dal9 this Llsllng begins fer the following purpose(&): _______________ _ (NOTE. Do not check If prohibited by Multiple Listing Service(s).}

Cl C. Broker will not flle lhi& l.ls1ing wilh a Multiple Ustlng Service (Ml.SJ or any other llstlng service. ~: Seller acknowl~ and 1.1nders1ands that if thlG opdon Is checked: (1) Seller's Property will not be Included In 1he MLS database a.vallabla 10 real eslala agents and brokefS from other real estale offices .w,,o subscribe to and.pa,1icis,ate in the MLS, and their buyer cllenm may not ba aware that Seller's P1'0f*1i, $ offered for sale; (2) Sellefs Prcperty wflI not ba included In 1he MLS's download to various real estate lnlemet sfte, that are used by the pubMc to search far property llstings; and {3} real estate agents, brokers, and members of lhe pubtlc mil)' be unaware of the terms and conditions under which Seller Is maritetlng: the Property.

7. ACCESS TO THE PROPERTY: A. Autt}Qrlzjog MSQS§: AuthoriZing access lo the Property means giving pem,isslon to another panion to enter the Property, dlscloslng to the other person any &eeurily codes necessary lo enter the Property, and lending a lcey to the other person to enter the Property, dlrectly or through a keybox To facilltate 1h& showing and sale of lhe Property, Seller lnslrucls Broker to: (1) access the Property al reasonable limes; (2) authorizs other brokers, their associates, inspectors, appraisers, and contractors to access the Property al

reasonable times; and (3} duplicate keys 1o facllllale convenient and 4:!lrlclent showings or the Property. B. §ehegygpg Companies: Broker may engage the following companies to schedul& appointments and to authori28 others to access the Property: ________________________ _ A keybox Is a looked contalnet placed on the Property that holds a key to the Property. A keybox C. ~: makes ft more convenient for brokers, theit associates, Inspector&, appralsera, and contractors to ahow, Inspect, °" n:parr the Property. The keytlcax 11 opened by a speclal camblnatlon, kay, or programmed devk:e so that authorized persons may enter the Property. even In Seller's abRnoe. Using a keybox wlR probably tni;rease the number of sbow[ngs. but lnvolvff rbka (IOr example, unauthOrized enlrY, lhefl, property d;una.ge, or personal lnJury). Nelther the Assodatfon of REAL TORS® nor MLS requires 1he use at a keybox. (1) Broker ~ 0 Is not author1Zad to pface a keybox on ths Property. (2) If a tenant OCCtlples the Property at any time during this Listing. Seller will furnish Broker a written statement

(for example, TAR No. 1411). ilgned by an tenants, authodzlng the use of a keybox or Brolter ml'ly remove the keybox from the Propeny.

D. Uablllty and lndemaificatlon: When authorizing access to the Property, Broker, other brokers, their a880Qates, any keybox provider, or any schaduHnQ oompany anJ not responsible for personal injury or property loss to Seller or any other person. Sellef assumes al risk of any lo5s, damage, or injury. Except for'a..loss caused by Braker, SeUer wm Indemnify 1nd hold Broker harmless 1r.om any clalm for personal lnfury. property damage. or other loss.

8. COOPERAllON WITH OTHER BROKERS: Braker will allow other brokers to show the Property to prospec1iVe buyers. Broker win offer to pay the 0Ihsr broker a fee as described below If the other broker procurvs a buyer that purchases the Propeny.

fnltlaled far ld•n1HlcaUon by Br0ker/Assocl4te ~ and Seller --4, ~ Page -I ol 10 fTAR·1101) 01•01 ·14 1801'0 l'lllMII llUe Rcad.l'dlw, ~4aozt P'nldur.ldwllh~by~bo. ......, Jlplpqh<CPfD

DEF 606

*105 A. ML6, Participants r lhe other broker Is a partlcJpant In 1he MLS In which this Listing i! 1lled, Broker w1D offer to pay (1) If the other broket r&presants the buyer. ,J~ % or the sales price or$ ________ 4 ,L theotherbroker:

, al'ld (2) If tho other broker Is a subagent %of the sales price or$ _______ _ ____ B. Non-MLS fJr.okers. H the oth81' broker Is not a panlcipant ln the MLS In which this Listing Is filed, Brok&r will offer lo "'?en_ pay the other broker {1} it the 01her broker reprassn~ 1he buyer: , ~ % of the sales price or S ________ ; and (2) ii the other broker ls a subs.gent' ____ ,ii of the sales price or$ _______ _

~. ltffERMEDIARY: (Check A or B only.) ~ lnte[!!Jed!arv St;!WS, Broker may show the Property to ln1emsted prospective buyer& who Broker represents. If a

J)fospectlve buyer who Brol(er represents offers to buy the Ptoperty, Seller authorizes Broker tD act as an Intermediary and Broker wil notify Seller that Broker wlU $8rvloe the parties In accordanto with one 01 the loQowlng allematlves. (1) If a prospective bUyer who Broker represents is nrvlced by an 8S$0clate other than lhe associate &ervfcing

Seller under lhls Listing, Broker may notify Seller Iha! Broker Win: (e) appoint the associale 1hen servicing Saller to communicate wfth, carry out lnstn.Jdions of, and provide opinions and advice ck.Iring negotlatlons IO Seller and {b) appoint 1he esscclate thel'l servicing the prospective buyer lo the prOJ1pectlve buyer for lhe same PLlfPCIS&

(2) It a prosped'r1e buyer who Broker represents ls servlced by the same associate who Is servicing Seller, Broker may notify Seller lha1 Broker will. (a) appolnl another assoc:iate to communicate wilh, car,y out lnslrUclions of, and provide oplntons and advice during negC111atlons to the prospective buyer; and (b) appoint the associate servicing the Saner under ttis llsUng lo the Seller for the same purpose.

(3) Broker may notify Seller that Broker will make oo appointments as desctibad under this Paragraph 9A and, In such an event, the aasocJate servicing lhe parties wil act so ety as Broker's ln1elTTledlaty representallva, who may faclllt.ate lhe lransactlon but wfll nol render oploiona or advice during negoUatlon& to either par1y

D B. No l(lf&lrmadlao: SJitus Seller agrees that Brok11r will net show !he Property to ptospectlve buyers who Broker represents. Notk:e: If Broker acts as an Intermediary under Paragreph 9A. Brobr and Braker's asaocfotea: • may not disclose to the prospective buyer that saner will eccept a price IDISS than the aklng prioe unless otherwise Instructed In a separate writing by Seiter, • may not disclose to Seller that the prospective btlygr wm pay a price greater than thit price submitted In a written offer 1D Seller unless otherwise tnstructed In a sepanafa wrltlng by the ptospective buyer;

• may not disclose any conftdenllal lnformati® or any rnformatfon SeHer or the prospective buyer speoiffcally instruc.ls Broker ln wrtllng not 10 dlaclose unless otherwise lnslruoted In II separate writing by lhe respecdve party or requJred lo dtsclosa the Information by the Real Estate Ucensa Act or a court order or ff the information materially relates to 1he condlllon of the property;

• may nOl treat a party to the lransacUon dlshonntly: and • may not violate the Real Estate Ucense AcL

.tf-"" ..,_ ~ .... 6 of 10 "1 _,,,_ (TNM101)01--01-14 ......... ,....,_., llpl.oglx 1acm, Rllten MIii fbad. FIZMr, Mk:bigan.fll02ll 'frWGlcl.Aolr"""' l'!odleM!wllh ~met,/

DEF 607

*106 Recfr:lentlal Ll!illng concerning 10. CONFtl>ENTIAL INFORMATION: During this Uatlng er after it ends, Broker may not l<nowtngly dlsclo&e lnlormafion

oblalned fn confidence from Seller except as authorized by selfar er roquired by law. Broker may not di!!close to Sellar any conftdenllal tn(ormatlon regarding any other per$0n Broker represents or previously represented e)(Cept as required bylaw.

11. BROKER'S AUTHORITY: A. Broker wfH use reasonable efforts and act dlllgen1ly10 market the Property for sale, procure a buyer, ar,d negodate the sale of vie P,operty. B. Broker Is authoriu!d to display this Listing on lhe Internet without Dm!latfon unless one of lhe following is checked: 0 (1) Seller does not wanl 1hls Usdng to be dlsplayed on the ln1amal. 0 {2) St:tller d~ not want the addrBss of~ Property to be displayed on the lnlemeL that, If box 11B{1) Is seJoctcd. c:onaurners who conduct se;srches NoUce: Selh,r understand& and •cknowledgas far listings on lhe lntemet wl1f not see lnfolffl8tfon about this Listing In response 10 their search. J l1) Conventional C. Broker is authorized to marl<et the Property wt1n the following financing options:

O (5) Texas Veterans Land Program O (6) Owner Financing O (7) Other

{2) VA

(3) FHA

(4) Cash

D. rn addition lo other authority granted by this Ustlng, Broker may: (1) adVertise the Property by means and methods aa Broker detemdnn, including but not Hmlled to ~affng and pfadng advertisements with lntarlor and exterior photographic and audfo-vlsual Images or the Property and related Information In any media and Iha lnlBmel;

(2} place a ·For saJe• sign on lh& Property and ramova all olhEII' signs offering the Property for ~le or lea~; (3) fumiffl comparalive marketing and salH Information abo!Jt other properties to pmspecthle buyers; (4) dlssemilale lnfonna.tron about the Property to other brokers and to prospecttve buyers, Including appllcable

disclosures or notices that SeU•r Is required to make under law or a contract; {6) accept and deposit earnest money in trust In accordance with a contract '°' the safe of the Property: (5) obtain Information from any ~Idec of a noltt secured by a Hen on the Property; (7) disclose the sales price and terms of sale to other brokers, appraisers, or ether real es!ule professionals; (8) In re$Cnse to lr-iubies from prospective buyers and other brokers, dfsclo$e whether the Saller 1$ considering

more than one otter (Brokar WIii not dlsctose the lerms of any compellng offer unless s~omcany instructed by Seller);

(9) advertise. during or aner this Us11ng enda, that Broker ·sold'" the Property; and (101 ptace lntormation abou1 lhls Usling, the Property, and a transaction for the Property on an electronic

transacffon platform (1yplcally an Internet-baaed system where professionals related lo Iha ttansac!lon 8UCh as lf11e companies, lenders, and olhers may receive, view, and Input Information).

E. Broker Is nDI authorized to execute any document In Iha name or or on t»helf of Sellar concerning the Property. lnillaledklf"ldenlillcallonbyBroker/A$$oclata ~ and Seller~~ (TAR·1f01)01..0M4 Page6of 10 l"rcdllCIIII,..,, dcFafflO bJ zlpl..c,gk 111110 Fl/lean W. Allld. Fnnr~ qnzs Mt1W riot ooh ""Ill

DEF 608

*107 12. SELLER'S REPRESENTATIONS: Except u provided by Paregmph 1 S, Seier rupresen1s thal: A. Solfar has fee simple title to snd peaceabl6 possession of the Property and all l1s Improvements and fi,ctures, unles$ rented, and the legal capadly to convey th& Pfoperty; B. Seller Is not bound by a liattng agreement with al'\Other broker lor the sale, exchange, or lease of the Property that Is or wlO bit In effect dullng this US ting; C. any poot or spa and any required enclosures, rencaa, gates, and latches comply wllh all awffcable laws and ordfnancas: 0. no person or entity has any right to purcliase, lease ^[1] or ai:qu\ra the Property by an option, right ol refusal, or other agreement; e. S&Uet Is current and not delinquent on all loans and an other financial oblfgalfcms 1'91ated to tha Property, lncludlng but not Rmltad to mortgages, home equity loans, home Improvement loans, homeowner aasoclatlon fees, and laxes. except ~- _ ;

F. Seller Is not aware of any lfens_9r pthm encumbrances agal t the Prep rty, ex pt ________ _ ,1'ltf)l'C,.,f-, - G. lhe Pr<>perty Is not subject IO Iha J di n of any COUtt; H. all Jnlormallon relatlng to the Propeny Seller provides to Broker ls !rue and corrac.t to the best e>f Sollar's

knowledge; and I. lh9 name of any employer, relocation c;ompany, or olher entJty that provides benefits lo Seller when Balling the Property Is; -- 13. SELLER'SAODrTIONAL PROMlSES: Selleragrees to: A COOl)erate with Broker ta facllltale 1he showing, marketing, and sale of the Property: B. not rent or lease the Property durlng 1hfs Listing wlthovt Broker's prior written approval; C. not negotiate with any pn:i8f)ecttve buyer who may contact Seller dlnictly. but refer al prospective buyers to Broker; D. oot enter into a listing agreefl'lent wl1h another broker for the sale, exchange, lease, or management of the Property

to become etfect!VO during this Usllng <wlthout Broker's prior 'Written approval; E. maintain any pool and all required enclosures In c;t;Jmpllanee with all applicable laws and ordinances: F. provkle Broker wtth c:oples of any leases or rental agreements pertaining to lhe Property and advise Broker of

tenants moving in or out of Iha PropBrtyj G. complete S1Tf cffsclOtlUtes or notices required by law or a contract to sel lhe Property: and H. amend any app!loable notices and disclosures ff any material change OC<iUl'6 during this Listing.

14. LIMITATION OF UABIUTY; A. If the Property is or becomes v.acant during 1his U&1fng, Senor must nOllly Seller's casualfy blsurance company and request a "vacancy 0!11use· to coYer the Property. Broker Is not responr;lblG for the aacurlty of the Property nor ror inspecilng the Property on any perlodlc basis,

B. Broker Ia not responsible or liable In any manner for personal ln]vry 10 any person or ror lose or damage to any person's real or persona.I property resulting rrom any act or omission not ®U* by Broker's nagllgence., Including but not llmfted to lnJurJas ar damages caused by: (1) other brokers, their aasoclatd, Inspectors, appraisers, and contractors who are aulhotl.ied to access

th• Property; (2) other brokers or thefr 8&90Clalss who may have lnfarmaUon about the Property on their websites; (3) acts of third parties (for example, vandaHsm or theft); (4) freR!ng water pipes; (5) 1 dangerous condition on lhe Prgperty; (6) the Propertyta non•compllance 'With any Jaw or ordinance; or (7) seller, neallgently or otherwl$e.

,., khnllfl-n by--.. .¢1. onJ...., _J__if/__ r (l"AR-1101)01-01·1' .,. .... Page 7 of 10 Pltld,lctd vNI alj!FD/111S1 bf ~ill 410211 WWW,tjgl QQL1 cm, lll070 FIIIMn ~ Rold, Ftaw U-~

DEF 609

*108 Resldendal L1stiiY;J conceming ':k.:--zoS- C4 est A4-e b-6 n ¥ ::J l?--i-a.)_ C. Seller agrees to prolecl, defend, lndamnlfyt and hold Broker harmleas from eny damage, costs, attorney's feea, and expenses that ; (1) are caused by Seller, negllgently or other.vise; (2} arise from seller's raHure to disclose any material or relevant lnfonnatfon about the Property; or (3) are cau98d by Seiter giving lncorrecl Information to any peraon.

15. SPEQAL PROVISIONS: 16. DEFAULT: ff Seller breaches this Lls1fng, Seller is In default and wlU b& Ila.bk! lo Broker 101" the amoum of \he Broker'a

compensation speclffad In Paragraph 5A and any other oompensation Bmker Is eolll11:1d to recatve under this U$1ing. JI a sales price Is not determfnable !ti the event of an exchange or brt!!aeh of ttils Ustlng, lhe Listing Price wlll be tha sale! price for purposes of ccmputfng compensation. If Broker breaches ltlls Listing, Broker Is ln default and Seller may axeroise any remedy al law.

17. MEDIATION: The parties agrea to negotrata In gocd faith In an effort to resolve any dispute relaced to this listing that may arise between lhe parties. If the dispute cannot bG tesolved by negottallon, the dispute will be aubmltted to mediation. The pal"lles to the dispute will ch00$8 a mutually acceptable tnadlator and wlll share 1he cost of medfat10n equally.

18. AlTDRNEY'S FEES: H Seller or Broker Is a prevailing party In any legal proceeding brought es a reautt of a dispute under lhls lislfng or any transaction rataled to or 00ntemplated by this LlsUng, such party wlR be entitled to recover from the l'IOn-prevamng party al costs or such proceeding and reasonable attomey·s fee8.

19. ADDENDA ANO OTHER DOCUMENTS; Addenda that are part of this Usting and other documents that Seller may need to provfde are: !IL A. Information About BtOkarage Services; J.!J B. Seiter Disclosure Notice (§5.ooa, Texsa Property Code): 0 C. Addendum for Sefler's Dfaclosure of fnkmnatlon on Lead-Based Paint and Lead·Based Paint Hazards (reqUlrad if

Property was built belOl'8 "1978): D9 D Aesldentlal Real Property Affidavit (T-47 Alflda'Jit; related 10 existing sumy}; D fi MUD, Water District, or Statutory Tax District OisclOSUTe Notice (Chapter 49, Texas Water Code): 0 F. Request for Information from an Owners' Association; Cl G. Aequei.t for Mortgage lnfonnaUon; · Q H. Information about Mineral Clauses In Ccmlraat Forms; 0 I.

lnformallon about On-Site Sewer Facility; D J. lnfcrmaUon about Property Insurance for a &ayer or Seller; • ! L Condomlntum Addendum to Listing; 0 K. lnfomta1ion about Special Flood Hazard Areas:

M. Keybox Authorization by Tenant: N. Seller's Aumorlzation to Release and Adwrtlse Certaln lnrormatlon; and

0 0. ------------------------------- and Seller -4?!/.L Page 8~f 10 lnhialed for ldent111ca11Dn O'AR-1101) 01·0H4 by Brokett~odall!t~ ~lillb ~11, ~ 1ll070 Fillllen Mll8 Ho:l!I. Frue,, t.khlQM 4a0:2ill pw,z*'&mlJ.calll!

DEF 610

*109 Resident/a.I Llsling concamin9 d?ro ... '5:° CN4: 11-ve

20. AGREEMENT OF PARTIES:

A. Entire Agre§ment; This Llsllng Is the entire agreement of Che parties and may not be changed except by written agreement. B. Ass!gnablity: Neither patty may assign this llstlng ~llhout the Writlen consent of the oth81' party. C. Binding Effect: S&ller's obllgalion 10 pay Broker an earned compensation Is binding upon Seller and Sel}e(s heirs,

administrators, executors, suc.C8S1K>rs, and permitted assignees. D. Joint aoo Several: All Sellen, executing this Listing are Jointly and severally Hable for ihe pertonnance of all Its terms. E. Goyem;ng Law: Texas law governs Uls lnte,pmtatJon, vandlty, perioflnance, and enforcement of this Listing. In this LbUng lnvaltcl or unenforceabkt, lh&J remainder ot 1hla UsUng wlU not F. Severablll~: If a court finds any c:la1JSe

be affected and all other provlalons of this listing will remain valid and enforcaable. G. ~ NoUces between Iha parties roost be In wriUng and are effeellve when sent kl lh& recefvfng party's address, fax, or e-mail address specified In Paragraph 1. 21, AOOTflONAL NOTICES: A. Broker's «wnpensallon or the shartng of compensation between brokers ls not fixed. controlred, recommended, $Uggested, or maintained by the Association of REALTORS®, MLS, or any IJS11ng aervlce.. B. In accordance wfth fair housing Jaws and the Natlonal AssocJation of REALTORS8 Code of Ethics, Broker's services must be pl'01'ided and the Property mvst ba shown and made available to all persons wnhaut regard to rac&, color, religion, natJonal origin, sex, dlaabBlty. lamllial status, sexual orientation, or gendor Identity. Local crdlnencas may provide for aiddlUonaJ protlleted classes (1or example. creed. S1att.ts as a student, marital atatos, or age).

C. Broker advises Setler to contact any mortgage render or other nen holder to obtain Information regarding payoff amounts for any existing mortgagH or liens on lhe Prope!1y. D. Broker actvla&s Seller to review the Information Broker submits to an MtS or other Ustlng service. E. Broker advises Seller to remove or secure Jewelry, prescription drugs, other valuables. Hmarms and any

other weapons. F. Sfa1'11as or Ol'dlnances may regulate eartaln Hems on the Property (for example, sw(mrnlng pools and septic systems). Non-compliance wHh the statutes or ordinances may delay a transaction and may result In llnes, penalties, and llabntty to Seiter.

G. ft 1he Property was bulft before 1978 ^[1] Federal law requlles the Seller ta: (1) provide the buyer wHh the federally approved pamphlet on lead poisoning prevontlom (2) dfscloae the presence of any known lead-based patnt or lead-baMd paJnt hazards '" 1he Property; (3) deliver ,n recr:ards and rapol'b to the buyer related to such palnt or hazards; and (4) provide lhe buyer a period up to 10 days fD have lbe Property Inspected for such paJnt or hazards,

... ~ andSeBa,-4-7.iJ£.. (TAR-1101)01-01-14 1-od~r , __ by_od_ Page 9 of 10 IICffllAIIMIIMWII Raad, Fnl:Nl,M'd!l;an4IOU wmu!R,lsdtSJ'IIII l'mzt.ldlllllh&lpl"anr18~Zfl:l.0Qlll JOJ~&\WJd

DEF 611

*110 Ae,lden!lal Ustlng concerning H. Brobr cannot give legal advrc:a. READ THIS LISTING CAFU!PUU. Y. If you do not understand th• effect of this U&tlng, oonsult an attorney BEFORE signing. Sellttr's Slgnatura Q~ (T~1101}01-01-14 lniliaJedforldanllflcadonbyBrollai~seller Page1oof10 DEF 612 *111 VII.

P

olice Report *112 l,lillt;'-Erit.,u,tiimratm•J l d)()l u ... CJ.Lv D FAT '-1.. or;,..., D ~c«0<::1. tiv5 o ~AlUIO:.O u M1,e lXl SVPM.c, 1e1n o tt!'6&. .:o•H!

152181102

AUSTIN

I I I' 1 I I I I l I

~;i$l i...-. l.34 BURGRSS LANI!: AUSTIN, TX 78138 .. t;q,. St.119, ZIPI

t: w ... It > l:' .. "' ~I ~ f ] "' c - " I ::,,: n "' U' ... , :: ~ £ .. ,~4 ~, 5 ' ~ I, • ::: .nl. F!t,t, M1d!llr ^[1] ~ r,i..,_,, .,, 'i ~j " d ,,. ~ e c.. ~ .i;.... ;"J~'f :;i:;t ~"' oi

tnlr rOn-we, c,rr1m.u')! Ptt1on'01 tlW,Un1ticntusi line! "' '"' ~ ,H ':.!~ ::2 w N 56 l 5 !in N !Hi 97 91 : 1 1 .l TAYLOR, ?ENNY, HAIUUNGTON 2 l .9& , ____ ......_ __ _ ________________________ +--l--+--'--+----l

""u~.,,...w, N.oln.1.,,. 1------------

01:.q"°'ml11ti1t,1r!>M}~'IMtnt

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POLICE PEPARTMEN'l'

LIST OF PARTIES AND COUNSEL

TABLE OF CONTENTS

MRM..........................................................21

INDEX OF AUTHORITIES

NO. 03-17-00534-CV

BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

STATEMENT OF THE CASE

ISSUES PRESENTED

SUMMARY OF THE FACTS

SUMMARY OF THE ARGUMENT

ARGUMENT

MRM

“(A)….

PRAYER

COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE

COUNSEL FOR APPELLEE

CERTIFICATE OF COMPLIANCE

APPENDIX

IV.

Filed in The District Court

GRANTED.

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

2019] Short Title.

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

publication primarily used

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

2019] License Required.

This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

2019] General Liability of Broker.

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How to Use Your Manual Effectively

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4.9.1.11 Complaints/Disputes Involving Other Associates

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Accounting Policies and Guidelines

Should not excood $100 per month.

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DEF 606

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DEF 608

DEF 609

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20. AGREEMENT OF PARTIES:

DEF 611

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