The trail court refused to grant a directed verdict based on self-defense in smith’s murder trial. The panel, with one judge concurring affirmed. The majority held that evidence smith came armed to the marijuana sale was sufficient to create a jury questions as to whether Smith created the difficulty leading to the shooting. The concurrence argued that evidence smith came armed to the marijuana sale made self-defense unavailable as a matter of law as he created the difficulty leading to the shooting.
Fronenberg refinanced their home and invested with Smith. After Smith failed to pay on their notes, they sued smith, his wife and the successor mortgage holder for fraud and other cases of action. The trail court granted summary judgment to the defendants. The panel, 2-1, reversed in part, vacated in part and remanded. The majority held that smith had no apparent authority to bind the original mortgage company as that company did nothing to indicate he had authority and had no knowledge Smith was holding himself out as their agent. The majority held there was sufficient evidence to create a jury question on the actual agency of Smith as he admitted in his answer that he was an employee of the company thus establishing the scintilla of evidence needed to proceed with discovery. The majority held that because the mortgage and the investments were related, there was a genuine issue of fact as to whether Smith’s wife acted in the scope of her employment with the company and revered summary judgment on this issue. The majority finally vacated summary judgment on negligent hiring and consumer protection as the trial court failed to provide any analysis of these claims thus making appellate review impossible. The dissent argued that while the majority correctly held there was no apparent authority, it wrongly stated that inaction could create agency in the first place. The dissent argued that there was no evidence of actual authority as pleadings are not evidence at the summary judgment stage. The dissent finally argued that Smith’s wife acted outside the scope of her employment as the investment transaction was entirely separate form the mortgage transaction.