Stuteville v. Downing

• Decision Date: 27 June 1979
• Docket Number: No. 1-179A3,1-179A3
• Citation: 391 N.E.2d 629,181 Ind.App. 197
• Parties: Pamela A. STUTEVILLE, Appellant (Plaintiff Below), v. David DOWNING, and F. C. Tucker Company, Inc., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 629

391 N.E.2d 629

181 Ind.App. 197

Pamela A. STUTEVILLE, Appellant (Plaintiff Below), v. David DOWNING, and F. C. Tucker Company, Inc., Appellee (Defendant Below).

No. 1-179A3.

Court of Appeals of Indiana, First District.

June 27, 1979.

Timothy J. Kennedy, Sutherlin, Kennedy, Miller, Coons & Muller, Indianapolis, for appellant.

Howard J. DeTrude, Jr., J. Randall Aikman, Gerald L. Lawlis, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellee.

ROBERTSON, Judge.

Plaintiff-appellant Pamela A. Stuteville (Stuteville) appeals a grant of summary judgment in favor of defendant-appellee F. C. Tucker Company, Inc. (Tucker).

The record reveals that Stuteville met socially a real estate agent, David Downing, in the spring or early summer of 1974. Downing was an employee of Tucker and was an acquaintance of Stuteville's boyfriend. Although the sequence and nature of events immediately after their social meeting is unclear, Downing negotiated with Stuteville for the sale of a condominium which was consummated in August of 1974. At the time of purchase, Downing indicated to Stuteville that if she became unsatisfied with the condominium within one year that he would buy it from her.

As Downing and his wife lived in the same complex, Stuteville continued to regularly visit socially with them. About ten months after the sale, however, Stuteville became interested in moving to South Carolina to accept employment as a nurse in a newly constructed hospital. She asked Downing what her options were with respect to the sale of the condominium and eventually Downing offered to purchase the same for $600 and to assume the existing mortgage thereon. As this was agreeable to Stuteville, she surrendered the premises to Downing and pursued employment in South Carolina. To make a long story short, Downing never paid the $600 nor assumed the outstanding mortgage and the condominium was eventually sold on foreclosure. This is an appeal from the ensuing lawsuit brought against Tucker and Downing, the latter not being a party to this appeal.

Ind. Rules of Procedure, Trial Rule 56(C) states that summary judgment is appropriate only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue." Brandon v. State, (1976) 264 Ind. 177, 180, 340 N.E.2d 756, 758. See also Goethals v. DeVos, (1977) Ind.App., 366 N.E.2d 673. "However, despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation." Hayes v. Second National Bank of Richmond, (1978) Ind.App., 375 N.E.2d 647, 650 (citations omitted). See also Letson v. Lowmaster, (1976) Ind.App., 341 N.E.2d 785. In other words, a factual issue is "material" if it bears on the ultimate resolution of relevant issues, while a factual issue is "genuine" if it is not capable of being conclusively foreclosed by reference to undisputed facts. As stated in Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975), Cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54:

The language of Rule 56(C) sets forth a bifurcated standard which the party opposing summary judgment must meet to defeat the motion. He must establish the existence of an issue of fact which is both 'genuine' and 'material'. A material issue is one which affects the outcome of the litigation. To be considered 'genuine' for Rule 56 purposes a material issue must be established by 'sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial.' First National Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

Id., at 464.

The only preserved allegation of error is that a genuine issue of material fact exists as to whether Tucker was bound by Downing's actions on the basis of apparent authority. In Burger Man, Inc. v. Jordan Paper Products, Inc., (1976) Ind.App., 352 N.E.2d 821, we declared:

The apparent authority of an agent is that authority which a third person Reasonably believes the agent to possess Because of some manifestation from his principal. Soft Water Utilities, Inc. v. LeFevre, (1974) Ind.App., 308 N.E.2d 395; Storm v. Marsischke, (1973) Ind.App., 304 N.E.2d 840. These manifestations which the principal is required to make to the third person need not be in the form of direct communications, but rather the placing of the agent in a position to perform acts or make representations Which appear reasonable to a third person is a sufficient manifestation to endow the agent with apparent authority.

Id., at 832 (emphasis added).

Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, Arising from and in accordance with the other's manifestations to such third persons.

Restatement 2d Agency, § 8 (1958) (emphasis added).

At least insofar as relevant herein, therefore, a principal is bound by acts of his agent within his apparent authority so long as the third person's belief that the agent is so acting is reasonable, I. e., within the ambit of the apparent authority bestowed upon the agent by his principal. This concept recognizes that a principal is not an insurer; rather, before the burden of a loss may properly be placed upon the shoulders of the principal, the third party must be able to articulate a reasonable basis for the belief that the principal would be bound by the acts of the agent. As a corollary to this rule, a principal is not responsible to a third person who dealt with the agent in his Personal rather than his representative capacity. See, e. g., Miller et al. v. Fletcher Savings and Trust Company et al., (1922) 78 Ind.App. 183, 133 N.E. 174.

It is imperative to note initially that it is undisputed that Downing was acting as Tucker's...