dissenting.
I dissent. Indiana Construction Corporation acknowledges Indiana courts have en-grafted additional requirements onto the doctrine of estoppel when applying it to governmental act. One such requirement is that "the agent acting on behalf of the government must be acting within the scope of his authority, Samplawski v. City of Portage (1987), Ind.App., 512 N.E.2d 456, 459." Appellee's Brief at 9. ICC then asserts that Mr. Murray was acting within the scope of his authority when he sent the April 29, 1987 letter. In fact, the agent in this particular situation is the Mayor, not Mr. Murray. In the April 29, 1987 letter, Murray was reporting on the Mayor's statement, not his own: "The Mayor has stated that...." Record at 184. Thus the issue is whether ICC established the May- or's actual authority to act on behalf of the Board as a matter of law. In my opinion, it did not.
The record reveals the Board was created by an ordinance of the legislative arm of Muncie, the Muncie City Council, and provides "[the board of directors shall have the sole power and authority to direct the administration of the fund account and shall act as the majority of its members shall decide." Record at 200. In seeking summary judgment ICC failed to address the issue of the Mayor's authority. For this reason the grant of summary judgment is erroneous. In addition, the judgment is erroneous because the reasonableness of ICC's reliance on the Mayor's representation, if authorized, would be a question of fact.
Alternatively, ICC argues the trial court's judgment should be affirmed because the Board's failure to pursue timely payment from ICC waived any rights the Board may have had to impose liability on ICC for wrongful payment. This argument is also unavailing because ICC failed to negate the existence of genuine issues of fact material to this equitable defense.
I vote to reverse the grant of summary judgment and remand the cause to the trial court for further proceedings.