Michael Savage v. City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 13, 2014 Session

MICHAEL SAVAGE v. CITY OF MEMPHIS

Direct Appeal from the Chancery Court for Shelby County

No. Ch-13-1491-2 Arnold B. Goldin, Chancellor

No. W2014-01067-COA-R3-CV - Filed February 9, 2015

In this appeal, we are asked to determine whether an Assistant City Attorney of the City of

Memphis was an agent properly authorized to settle a dispute with a former employee. The

former employee sued the City to enforce a settlement agreement he purportedly reached

with the Assistant City Attorney for an amount in excess of $500.00. His complaint alleged

that although he was never informed that the agreement was contingent on the Mayor’s

approval, the Mayor subsequently rejected the agreement, and the City, based on the Mayor’s

rejection, refused to honor it. The Memphis City Charter provides that the City Attorney has

independent authority to settle claims against the City for amounts less than $500.00, but

settlements for amounts exceeding $500.00 must be entered “by and with the approval of the

Mayor.” After a period of discovery, the City filed a motion for summary judgment

contending that the former employee’s evidence was insufficient to establish that the

Assistant City Attorney acted with authority to bind the City to the settlement agreement.

The former employee opposed the City’s motion and filed his own motion for summary

judgment, in which he argued that evidence established the Mayor either actually or

apparently authorized the Assistant City Attorney to enter the settlement agreement. The trial

court granted the former employee’s motion for summary judgment after finding that the

Assistant City Attorney acted with apparent authority to enter the settlement agreement. On

appeal, we find that the record does not contain evidence sufficient to establish that the

Assistant City Attorney acted with either actual or implied authority to bind the City. In light

of our findings, we reverse the trial court and hold that summary judgment should be granted

in favor of the City.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

and Remanded

B RANDON O. G IBSON, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,

P.J., W.S., and K ENNY A RMSTRONG, J., joined.

Philip E. Oliphant, Assistant City Attorney, Memphis, Tennessee, for the appellant, City of

Memphis.

Darrell James O’Neal, Memphis, Tennessee, for the appellee, Michael Savage.

OPINION

I. B ACKGROUND AND P ROCEDURAL H ISTORY

The facts in this case are largely undisputed. Michael Savage (“Mr. Savage”) is a

former employee of the City of Memphis, Public Works Division. Following the termination

of his employment, Mr. Savage initiated legal proceedings against the City of Memphis (the

“City”) claiming that he was disciplined more harshly than a female supervisor. The City’s

Civil Service Commission (“Commission”) upheld the termination, and Mr. Savage filed a

Petition for Writ of Certiorari in chancery court. The chancery court found substantial and

material evidence to support the Commission’s decision but remanded the matter to the

Commission for specific findings on Mr. Savage’s equal protection claims.

On or about July 12, 2012, prior to the hearing on remand, Assistant City Attorney

Barbaralette Davis (“Ms. Davis”), acting with the approval of City Attorney Herman Morris

(“Morris” or “City Attorney Morris”), contacted Mr. Savage to discuss submitting the dispute

to mediation. Mr. Savage agreed to participate in mediation, and the parties agreed that

retired Judge Bernie Weinman would serve as the mediator in the case. On July 18, Ms.

Davis emailed Judge Weinman and stated, “I would like to know what are your requirements

regarding having available someone with the authority to settle so that I can arrange to have

someone on hand, if necessary.” Judge Weinman responded the following day with an email

to Ms. Davis and Mr. Savage’s attorney, which stated, “Please have someone with authority

to settle at the mediation. It is essential that you have someone available with authority to

reach an agreement in the case.”

The parties met with Judge Weinman to mediate the dispute on August 2, 2012. Ms.

Davis represented the City in the mediation as an Assistant City Attorney. In addition to Ms.

Davis, two other City employees participated in the mediation – Phillip Davis, the Solid

Waste Operations Administrator for the Division of Public Works, participated in person, and

Dwan Gilliom, the Director of the Division of Public Works (“Director Gilliom”),

participated by telephone. The mediation was successful, and the parties reached an

agreement to settle the matter for $72,000. On August 23, Ms. Davis sent a written draft of

the settlement agreement to Mr. Savage’s counsel. Ms. Davis asked that Mr. Savage sign and

return the agreement and advised that, in the meantime, she would “get the ball rolling on

getting the check request routed.” Mr. Savage agreed to the settlement agreement’s terms

-2-

and signed it. The settlement agreement did not have a space designated for the mayor’s

signature, nor did it contain any language to indicate that the enforceability of the agreement

was subject to the mayor’s approval. Nevertheless, the agreement was later submitted to City

Mayor AC Wharton (the “Mayor” or “Mayor Wharton”) for approval. Mayor Wharton

testified that he knew nothing about the case until the proposed agreement was submitted to

him, and that he rejected the settlement after reviewing it.

Mr. Savage commenced the current lawsuit on October 2, 2013 by filing a “Petition

to Enforce Settlement” in Shelby County Chancery Court. Mr. Savage argued that the City

was bound by the settlement agreement because Ms. Davis had authority to settle the matter

and its terms were agreed on and memorialized in writing. In his supporting memorandum

of law, Mr. Savage contended that Mayor Wharton delegated authority to settle lawsuits to

the City Attorney pursuant to Section 194 of the Memphis City Charter, which states:

Authority to settle lawsuits.

The City Attorney of the City of Memphis shall have authority to

compromise and settle all civil litigation to which the City of Memphis may be

a party wherever the amount of such compromise or settlement does not

exceed $500.00 and said City Attorney, by and with the approval of the Mayor

of the City of Memphis, shall have authority to compromise and settle any and

all claims or civil litigation to which the City of Memphis may be a party

where the amount of such compromise or settlement exceeds $500.00.

Mr. Savage argued that Ms. Davis’s actions before, during, and after the mediation made

it clear that she had authority to settle the matter on behalf of the City.

The City answered, admitting that Ms. Davis reached a proposed agreement with Mr.

Savage during the mediation, but denying that the agreement was ever ratified or executed

by the City. The City argued that it was not bound to the settlement agreement because Ms.

Davis had no actual or apparent authority to enter it without the Mayor’s approval.

After a period of discovery, the City and Mr. Savage each filed motions for summary

judgment. On April 8, 2013, the trial court held a hearing on the parties’ competing motions

for summary judgment. At the outset of the hearing, the trial court asked the parties whether

any material facts were in dispute. Both parties stipulated that they were in agreement

regarding the material facts of the case and that their only dispute was over the legal

implications of those facts. On May 6, 2014, the trial court entered an order granting Mr.

Savage’s motion for summary judgment and denying the City’s motion upon finding that Ms.

Davis had apparent authority to bind the City to the settlement agreement, given the

circumstances of the case. The trial court found that “the appearance of apparent authority

-3-

is traceable to the Mayor” because Ms. Davis initiated mediation with the approval of City

Attorney Morris, “and it is Morris who is the Mayor’s agent for the negotiation and execution

of agreements in settlement of litigation.” The court also noted that Director Gilliom, who

was appointed by Mayor Wharton and reported directly to him, participated in the mediation

by telephone. While the trial court acknowledged that “it may be true that the Mayor did not

directly know about this case until after mediation,” it found that because his agent, City

Attorney Morris, approved of Ms. Davis’s pursuit of the mediation, and his appointee,

Director Gilliom, participated in the mediation, “the Mayor’s claimed lack of knowledge, by

itself, cannot serve as a defense.” The court concluded that “a reasonably prudent person,

under all of the circumstances, would naturally expect that the Mayor acquiesced in the

appearance of authority that was manifested at the mediation.” The trial court found that Mr.

Savage had a reasonable and good faith belief that “persons with sufficient authority

participated in the mediation.” The trial court also found that Mr. Savage relied on that belief

to his detriment because he expended time and resources by participating in the mediation

and by engaging in litigation to enforce the settlement agreement.

The City timely filed a Notice of Appeal to this Court on May 20, 2013. The only

questions the City presents on appeal are whether the trial court erred in granting Mr.

Savage’s motion for summary judgment on the basis of apparent authority and whether the

trial court erred in denying the City’s motion for summary judgment.

II. S TANDARD OF R EVIEW

This appeal is from a grant of summary judgment. The trial court’s resolution of a

motion for summary judgment presents a question of law, which we review de novo on

appeal, according no deference to the trial court’s decision. Wells ex rel. Baker v. State, 435

S.W.3d 734, 749 (Tenn. Ct. App. 2013). Summary judgment is appropriate in virtually any

civil case that can be resolved on the basis of legal issues alone. Estate of Brown, 402

S.W.3d 193, 197 (Tenn. 2013). However, summary judgment should not be granted in cases

where the material facts are disputed or when more than one conclusion or inference can be

reasonably drawn from the facts. King v. Betts, 354 S.W.3d 691, 711 (Tenn. 2011). In order

to be granted summary judgment, the moving party must demonstrate that there are no

genuine issues of material fact and that it is entitled to a judgment as a matter of law. Tenn.

R. Civ. P. 56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008).

Rule 56 of the Tennessee Rules of Civil Procedure permits any party to move for

summary judgment regardless of whether that party is the plaintiff or defendant. CAO

Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010). Accordingly, courts may from time

to time be confronted with cross-motions for summary judgment. Id. In such cases, a court

must rule independently on each motion and determine, with regard to each motion, whether

-4-

disputes of material fact with regard to that motion exist and, if not, whether the party filing

the motion met the requirements of Rule 56. Id. at 83. The denial of one party’s motion for

summary judgment does not necessarily imply that the other party’s motion should be

granted. Id. When considering competing cross-motions for summary judgment, the court

must take care to resolve all factual disputes and any competing rational inferences in the

light most favorable to the party opposing each motion. Id.

Here, both the City and Mr. Savage filed motions for summary judgment. The trial

court granted Mr. Savage’s motion and denied the City’s. On appeal, the City contends that

the trial court erred both by granting Mr. Savage’s motion and by denying its motion. Even

if the trial court erred by granting Mr. Savage’s summary judgment motion, it does not

necessarily follow that the City was entitled to summary judgment. See id. at 87 (holding that

although the parties agreed regarding the material facts, “the existence of genuine disputes

involving the inferences to be drawn from the material facts should have prevented the trial

court from granting summary judgment to either party”). Accordingly, we must first

determine whether the trial court erred by granting Mr. Savage’s motion for summary

judgment. If we determine that the trial court so erred, we must then determine whether the

City demonstrated that it was independently entitled to summary judgment.

III. A NALYSIS

This case requires us to apply the rules and laws governing agency. Agency is a

fiduciary relationship that arises when one person (a “principal”) manifests assent to another

person (an “agent”) that the agent shall act on the principal’s behalf and subject to the

principal’s control, and the agent manifests or otherwise consents to do so. Morrison v.

Allen, 338 S.W.3d 417, 450 (Tenn. 2011) (Koch, J., concurring in part and dissenting in part)

(citing Restatement (Third) of Agency § 1.01 (2006)). One of the fundamental principles of

agency law is that a principal is neither bound by a contract made by a person who is not his

agent, nor by a contract made by an agent who acted beyond the scope of the agent’s

authority, absent a valid ratification by the principal. Webber v. State Farm Mut. Auto. Ins.

Co., 49 S.W.3d 265, 269-270 (Tenn. 2001). In this case, both parties characterize Mayor

Wharton as the principal and Ms. Davis as his agent.1 Accordingly, the parties do not dispute

that Ms. Davis was acting as an agent of Mayor Wharton – and by extension, the City – when

she entered the settlement agreement. Rather, the parties only dispute whether, in doing so,

1

While it may be more accurately stated that the City is the principal, Mayor Wharton is the City’s

agent, and Ms. Davis is Mayor Wharton’s subagent, the distinction is not necessary. Where an agent

appoints a subagent to perform functions on behalf of the agent’s principal, the relationship between the

agent and the subagent is governed by the same rules of agency that govern a principal-agent relationship.

Restatement (Third) of Agency § 1.04 (2006).

-5-

Ms. Davis acted beyond the scope of her authority such that the City is not bound by her

action.

There are two bases under which the common law attributes the legal consequences

of an agent’s actions to the principal: actual authority and apparent authority. Milliken Grp.

Inc. v. Hays Nissan, Inc., 86 S.W.3d 564, 567 (Tenn. Ct. App. 2001). An agent’s actual

authority “consists of the powers which a principal directly confers upon an agent or causes

or permits him to believe himself to possess.” Id. (citing 2A C.J.S. Agency § 147 (1972)).

It flows from the manifestations of the principal to the agent. Id. Actual authority can

therefore be further categorized as either express or implied. Id. Even where the principal

has not given the agent actual authority to take a certain course of action, the agent may still

bind the principal if he had apparent authority. Id. at 569. Apparent authority is essentially

agency by estoppel, in that its creation and existence depends on some conduct by the

principal that will preclude him from denying liability for the acts of the agent. Boren ex rel.

Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008). It is power held by the agent “to affect

a principal’s legal relations with third parties when a third party reasonably believes the

[agent] has authority to act on behalf of the principal and that belief is traceable to the

principal’s manifestations.” Barbee v. Kindred Healthcare Operating, Inc., No. W2007-

00517-COA-R3-CV, 2008 WL 4615858, at *6 (Tenn. Ct. App. Oct. 20, 2008) (citing

Restatement (Third) of Agency § 2.03 (2006)).

The primary issue in this case is whether Ms. Davis had implied or apparent authority

to bind the City to the settlement agreement with Mr. Savage without Mayor Wharton’s

express approval. Having established the requisite standards for establishing implied and

apparent authority, we now examine the trial court’s rulings on the parties’ competing

motions for summary judgment.

A. Grant of Savage’s Motion for Summary Judgment

Following a period of discovery, Mr. Savage filed a motion for summary judgment

arguing that he was entitled to judgment as a matter of law because the undisputed facts

established that Ms. Davis had both implied and apparent authority to enter into the

settlement agreement and that the settlement agreement was enforceable under the laws of

contract. The trial court found that Ms. Davis had apparent authority to enter the settlement

agreement and granted summary judgment in favor of Mr. Savage based on that fact. Before

we address the propriety of the trial court’s ruling, we briefly consider the showing of proof

required of Mr. Savage on his motion for summary judgment. If this case had proceeded to

trial, Mr. Savage would have had the burden of persuading the court that Ms. Davis had the

authority to bind the City to the terms of the settlement agreement and that she did so by her

actions. See Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn. 2009) (“The

-6-

burden of proof rests with the party asserting the agency relationship.”); Randolph v.

Randolph, 937 S.W.2d 815, 821 (Tenn. 1996) (“[T]he burden of proving the existence of a

valid contract is upon the person relying on the contract.”). Where the party moving for

summary judgment has the burden of persuasion at trial, he must produce evidence for each

unadmitted element of his claim, and the evidence must be such that, if uncontradicted, no

reasonable jury could find against the movant. See R OBERT B ANKS, J R. & JUNE F. E NTMAN,

T ENNESSEE C IVIL P ROCEDURE § 9-4(m) (3d ed. 2009). Accordingly, for the trial court’s grant

of summary judgment to be proper, the record must reflect that Mr. Savage presented

uncontradicted evidence sufficient to satisfy each unadmitted element of apparent authority.

In Tennessee, a party seeking to establish apparent authority must prove three

elements: (1) the principal knew or negligently acquiesced in the agent’s exercise of

authority; (2) the third person had knowledge of the facts and a good faith belief that the

apparent agent possessed such authority; and (3) the third person relied on this apparent

authority to his or her detriment. Boren ex rel. Boren, 251 S.W.3d at 432-33 (quoting White

v. Methodist Hosp. S., 844 S.W.2d 642, 646 (Tenn. Ct. App. 1992)). Notably, apparent

authority is established through acts of the principal rather than those of the agent. Id. at 433.

As the Tennessee Supreme Court has explained:

The apparent power of an agent is to be determined by the acts of the principal

and not by the acts of the agent; a principal is responsible for the acts of an

agent within his apparent authority only where the principal himself by his acts

or conduct has clothed the agent with the appearance of authority, and not

where the agent’s own conduct has created the apparent authority. The

liability of the principal is determined in any particular case, however, not

merely by what was the apparent authority of the agent, but by what authority

the third person, exercising reasonable care and prudence, was justified in

believing that the principal had by his acts under the circumstances conferred

upon his agent.

Id. (citations omitted). Accordingly, where the principal, by his own acts or conduct, has

clothed the agent with the appearance of authority to act on his behalf, he is estopped from

denying liability for the acts of the agent acting within that authority. Milliken Grp., Inc., 86

S.W.3d at 569.

The City contends that Mr. Savage failed to present sufficient undisputed evidence

to establish, as a matter of law, that Ms. Davis had apparent authority to enter the settlement

agreement. The trial court found that the uncontradicted evidence clearly showed that Ms.

Davis’s apparent authority was traceable to the Mayor because (1) Ms. Davis pursued

mediation with the approval of the City Attorney Morris, who testified that he is Mayor

-7-

Wharton’s agent for negotiation and execution of settlement agreements; and (2) two of

Mayor Wharton’s appointees in the City’s Division of Public Works participated to some

degree in the mediation. However, neither the approval of Mayor Wharton’s agent nor the

fact that two of Mayor Wharton’s appointees were present at the mediation establishes that

Mayor Wharton himself took any action to clothe Ms. Davis with the appearance of authority

to act on his behalf. Even though City Attorney Morris testified that he is the Mayor’s agent

for negotiation and execution of settlement agreements, his independent authority to do so

is expressly limited by the Memphis City Charter to amounts equal to or less than $500.00.

There is no evidence in the record that establishes that Mayor Wharton took any action to

give the appearance that the City Attorney or Ms. Davis was authorized to enter settlement

agreements in excess of that amount. The fact that two of Mayor Wharton’s appointees

participated in the mediation does not, by itself, establish that he took any such action, as

there is no evidence in the record to indicate that either of the two appointees had any

authority to approve the settlement amount. After reviewing the record, we disagree with the

trial court’s conclusion that the foregoing undisputed facts establish as a matter of law that

Ms. Davis’s apparent authority was traceable to Mayor Wharton’s actions or conduct. In

light of that finding, discussion of Mr. Savage’s good faith and detrimental reliance is

pretermitted, and we conclude that the trial court erred in granting summary judgment to Mr.

Savage.

B. Denial of the City’s Motion for Summary Judgment

Having determined that the trial court erred in granting summary judgment to Mr.

Savage based on apparent authority, we turn to the City’s argument that the trial court erred

in denying its motion for summary judgment. Before we address the propriety of the trial

court’s ruling, we briefly consider the proof the City was required to show in support of its

motion. As previously stated, Mr. Savage, not the City, would have had the burden of

persuasion at trial in this case. Accordingly, with regard to the City’s motion for summary

judgment, the trial court was required to apply the summary judgment standard set forth in

Tennessee Code Annotated section 20-16-101.2 That statute provides:

In motions for summary judgment in any civil action in Tennessee, the

moving party who does not bear the burden of proof at trial shall prevail on its

motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element of

the nonmoving party’s claim; or

2

Mr. Savage’s “Petition to Enforce Settlement” was filed on October 2, 2013 as a case separate from

the underlying appeal from Civil Service Commission. Section 20-16-101 is applicable to all cases filed on

or after July 1, 2011.

-8-

(2) Demonstrates to the court that the nonmoving party’s evidence is

insufficient to establish an essential element of the nonmoving party’s claim.

Tenn. Code Ann. § 20-16-101 (Supp. 2014). Section 20-16-101 is intended to re-establish

the “put up or shut up” standard of burden shifting in summary judgment cases that existed

in Tennessee prior to Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). Walker

v. Bradley Cnty. Gov’t, 447 S.W.3d 877, 880 n.3 (Tenn. Ct. App. 2014).

The City contends that it is entitled to judgment as a matter of law because the

undisputed facts established that Ms. Davis did not have actual or apparent authority to enter

into the settlement agreement. As discussed in the foregoing section, Mr. Savage failed to

produce evidence of any action or conduct by Mayor Wharton to clothe Ms. Davis with the

appearance of authority. Accordingly, a grant of summary judgment in favor of the City is

appropriate unless there is a genuine question of material fact regarding Ms. Davis’s actual

authority – either express or implied – to enter the settlement agreement. Though the issue

is not raised by the parties, we note as a preliminary matter that it is undisputed that Mayor

Wharton did not give Ms. Davis express authority to enter into the settlement agreement

because the parties do not dispute that the Mayor was unaware of the agreement until it was

submitted to him for approval. Thus, the only remaining avenue for Mr. Savage to assert that

Ms. Davis had authority to enter the settlement agreement without Mayor Wharton’s

approval is through implied authority.

Though the trial court did not address implied authority in its final order, we proceed

to discuss it in the interest of judicial economy, as the parties addressed it in their respective

motions, filings, and briefs on appeal. See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303,

314 (Tenn. 2014) (noting that judicial economy supports appellate courts’ consideration of

matters not discussed in a trial court’s order where doing so will not significantly hamper

review of the trial court’s decision). Implied authority is often used to mean actual authority

either to do what is necessary to accomplish the agent’s express responsibilities, or to act in

a manner that the agent reasonably believes the principal wishes the agent to act, in light of

the principal’s objectives and manifestations. Barbee v. Kindred Healthcare Operating, Inc.,

No. W2007-00517-COA-R3-CV, 2008 WL 4615858, at *6 (Tenn. Ct. App. Oct. 20, 2008)

(citing Restatement (Third) of Agency § 2.01 cmt. b (2006)). It has been described as actual

authority circumstantially proved, evidenced by conduct, or inferred from a course of dealing

between the principal and the agent. Bells Banking Co. v. Jackson Ctr., Inc., 938 S.W.2d

421, 424 (Tenn. Ct. App. 1996). The Restatement explains implied authority as the authority

to do what is necessary, usual, and proper to accomplish or perform an agent’s

express responsibilities or . . . to act in a manner in which an agent believes the

principal wishes the agent to act based on the agent’s reasonable interpretation

-9-

of the principal’s manifestation in light of the principal’s objectives and other

facts known to the agent.

Restatement (Third) of Agency § 2.01 cmt. b (2006).

Mr. Savage contends that the City is not entitled to judgment as a matter law because

it can be reasonably inferred from the evidence in the record that Mayor Wharton impliedly

authorized Ms. Davis to enter the settlement agreement through his course of dealing with

the City Attorney’s Office. After careful review, we find that the record fails to reveal any

conduct or course of dealing between Mayor Wharton and the City Attorney’s Office from

which it can reasonably be inferred that the Mayor impliedly authorized Ms. Davis to enter

settlement agreements exceeding $500.00 without his approval. Savage relies on evidence

that Ms. Davis thought she had authority to bind the City to the settlement agreement. He

points out that Ms. Davis received Judge Weinman’s instruction to provide someone with

settlement authority at the mediation, that she emailed Savage a draft of the settlement

agreement advising him that she would “get the ball rolling on the check,” and that the

agreement itself did not include a line for the Mayor’s signature. While this evidence may

lead a reasonable person to infer that Ms. Davis believed she had authority to enter the

settlement agreement, an agent’s subjective belief alone is not sufficient to establish implied

authority where it is not based on a reasonable interpretation of the principal’s manifestation

in light of his objectives and other facts known to the agent. Given the undisputed facts of

this case, any such belief by Ms. Davis was not reasonable. The Memphis City Charter

clearly states that the City Attorney may only settle matters exceeding $500.00 “by and with

the approval of the Mayor.” Mayor Wharton testified that, in some cases, the City Attorney

seeks advance authority to settle matters in excess of $500.00. Additionally, City Attorney

Morris testified that the Mayor approves settlements reached by the City Attorney’s office

“in most instances.” However, there is no evidence in the record of any past settlement

agreement exceeding $500.00 that was not presented to the Mayor for approval either before

or after mediation. Savage emphasizes that Mayor Wharton had approved nearly every

settlement agreement he was presented. However, given the infinitely broad spectrum of

matters that could conceivably be resolved by the City through such agreements, no

reasonable person could infer that by approving any number of settlement agreements, the

Mayor impliedly waived all objections in future matters. While we decline to hold that no

circumstance exists under which the Mayor could impliedly grant authority to the City

Attorney to enter settlements exceeding $500.00 through his course of dealing with the City

Attorney’s Office, such circumstances certainly do not exist in this case given the undisputed

facts in the record before us. We find that the record does not reveal any conduct or course

of dealing between Mayor Wharton and the City Attorney’s Office that would evidence the

Mayor’s intent that Ms. Davis have such authority as that at issue here. In conclusion,

because the evidence in the record is insufficient to establish that Ms. Davis acted with actual

-10-

or apparent authority in executing the settlement agreement, we find that the City is entitled

to judgment as a matter of law in this case.

IV. C ONCLUSION

After thoroughly reviewing the record and considering the arguments of the parties,

we find that the trial court erred in granting summary judgment to Mr. Savage based on

apparent authority, as there is no evidence in the record to indicate that Ms. Davis’s actions

were traceable to any act or conduct by the Mayor. Moreover, we find that the City is

entitled to judgment as a matter of law because the evidence in the record is insufficient to

establish that Ms. Davis had authority to enter the agreement. We reverse the trial court’s

order, vacate the summary judgment granted to Mr. Savage, and remand the case to the trial

court and direct the trial court to enter summary judgment on behalf of the City. The costs

of this appeal are taxed to Michael Savage for which execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

-11-