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

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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

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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

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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).

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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

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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

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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.

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 (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

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 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

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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

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