Dickinson v. City of Huntsville

• Decision Date: 21 November 2001
• Citation: 822 So.2d 411
• Parties: James Shannon DICKINSON and Water Pollution Control, Inc. v. CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

822 So.2d 411

James Shannon DICKINSON and Water Pollution Control, Inc. v. CITY OF HUNTSVILLE.

1001271.

Supreme Court of Alabama.

November 21, 2001.

Fulton S. Hamilton of Hamilton & Gardner, Huntsville, for appellants.

L. Tennent Lee III of Wilmer, Lee, Rowe, Cates, Fohrell & Kelley, P.A., Huntsville, for appellee.

SEE, Justice.

In May 2000, James Shannon Dickinson, an employee of the City of Huntsville, and Water Pollution Control, Inc., a company of which Dickinson is an officer and in which he is a shareholder, sued Metro Investigations, Inc., Jay Kennedy, an employee of Metro Investigations, and Loretta Spencer, mayor of the City of Huntsville, alleging that Spencer had improperly hired Kennedy and Metro Investigations to investigate his outside business activities and seeking compensatory and punitive damages.¹ Dickinson claimed that Spencer's failure to properly supervise and review the actions of Kennedy and Metro Investigations "caused [him] to suffer personal humiliation, public embarrassment, [and] financial expense."

Dickinson amended his complaint to allege, among other things, fraud, fraudulent misrepresentation, negligence, and wantonness. Spencer moved the trial court to substitute the City of Huntsville in her place, claiming that "based on the doctrine of governmental function[,] ... suits brought against governmental officials in their official capacity ... are, in fact, suits against the governmental agency themselves." The trial court granted Spencer's motion and substituted the City of Huntsville for Spencer.

The City moved for a summary judgment, arguing (1) that Dickinson's claims were barred by the statute of limitations; (2) that Dickinson's fraud claim failed to state a claim upon which relief could be granted; (3) that the testimony given at Dickinson's personnel hearing was privileged and could not be used as a basis for any claim; (4) that Dickinson's claims actually allege malicious prosecution and malicious-prosecution claims may not lie against a municipality; (5) that there is no recognized claim against a municipality for the negligent hiring or supervision of an independent contractor; and (6) that Dickinson cannot recover punitive damages against the City. The trial court granted the City's motion for a summary judgment, finding that Metro Investigations and Kennedy were independent contractors and that, therefore, the City could not be held liable based on a theory of respondeat superior. Dickinson appeals from the trial court's partial summary judgment in favor of the City made final by a certification pursuant to Rule 54(b), Ala. R. Civ. P. Dickinson raises the following issues: (1) whether the trial court erred in substituting the City of Huntsville for Mayor Spencer; (2) whether Metro Investigations was an independent contractor hired by the City of Huntsville; (3) whether a city's surveillance of a city employee was a nondelegable duty; and (4) whether the trial court erred in entering a summary judgment on the issue of damages.

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact," Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was "entitled to a judgment as a matter of law." Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

Dickinson argues that the trial court erred in substituting the City for the named defendant, Mayor Spencer. He argues that he sued the mayor in her official capacity because, he says, she, as the chief executive officer of the City, is statutorily charged with the supervision and control of the City and its employees. Dickinson relies on Smitherman v. Marshall County Commission, 746 So.2d 1001 (Ala.1999), for his argument that Spencer, in her official capacity as the mayor, is a distinct legal entity from the City. In Smitherman, Jamie Smitherman, by and through her mother, sued, among others, Marshall County, the Marshall County Commission, and the county engineer, individually and in their official capacities, alleging that they had acted negligently and wantonly in designing and maintaining a county road in Marshall County. Smitherman claimed that their negligence or wantonness had caused a motor-vehicle accident in which she suffered injuries. The trial court entered a summary judgment for all defendants except the County. The trial court, relying on Calvert v. Cullman County Commission, 669 So.2d 119 (Ala.1995), held that "`suing the county commissioners, in their official capacities, the county engineer, in his official capacity, and the Marshall County Commission is only another way of pleading a claim against the entity, Marshall County.'" 746 So.2d at 1004. This Court reversed the trial court's summary judgment as to the claims against the Marshall County Commission, the commissioners, and the county engineer, holding that there is a legal distinction between a county and its employees acting in their official capacities. 746 So.2d at 1005. This Court also overruled Calvert to the extent that it implied otherwise. Id.

Dickinson urges this Court to adopt the Smitherman rationale and hold that there is a legal distinction between a City and its mayor. Dickinson cites no caselaw to support this argument, and this Court's independent research can find no support for this argument. Smitherman is distinguishable from the present case because of the nature of the parties involved. In Smitherman, this Court quoted Justice Maddox's special writing in Calvert and stated that a county commission "`is the governing body of the county, and not the county itself.'" Smitherman, 746 So.2d at 1005. This Court likened a county commission to a city council, because both are governing bodies. Id. The office of mayor, however, is not a governing body in the way a county commission is. The mayor, as Dickinson notes, is the chief executive officer of the City. See § 11-43D-14, Ala. Code 1975. That is to say, she is, in her official capacity, within the line and scope of her office, the agent of the City, through whom the City acts. Thus, to sue the mayor in her official capacity is simply another way of suing the City. Therefore, the trial court did not err in substituting the City for Mayor Spencer, the original defendant.

Dickinson argues that the trial court erred in granting the City's motion for a summary judgment because, he says, Metro Investigations and Kennedy were agents of the City. The City, however, argues that Metro Investigations and Kennedy were not agents of the City, but were instead independent contractors, and we agree. "`The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent.'" Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) (quoting Gist v. Vulcan Oil Co., 640 So.2d 940, 942 (Ala.1994)). In determining whether a person is an independent contractor, we use the "right-of-control" test, and we consider four factors: (1) direct evidence of the right or exercise of control; (2) the method of payment used; (3) whether the alleged principal had the right to terminate employment; and (4) the right to control another's time. Hooker Constr., Inc. v. Walker, [Ms. 2000479, Sept. 21, 2001] ___ So.2d ___, ___ (Ala. Civ.App.2001) (citing Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983)). The party asserting the existence of an agency relationship has the burden of presenting sufficient evidence to prove the existence of that relationship. See Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala. 1994)). Agency may not be presumed. Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala. 1988)). The plaintiff must present substantial evidence of an agency relationship. Id.

Dickinson failed to present any evidence of an agency relationship. In his response to the City's motion for a summary judgment, Dickinson presented no evidence of agency. To this Court, Dickinson argues that "[n]o evidence was before the trial court from which the trial court could make a factual or legal determination on the employment relations between the City of Huntsville and Metro Investigations, Inc." (Dickinson's brief, at 11.)

Agency cannot be presumed, and Dickinson bears the burden of proving that an agency relationship existed. See Hooker Construction, ___ So.2d at ___. Because Dickinson failed to present substantial evidence indicating the existence of an agency relationship, we cannot say that the trial court erred in finding that Metro Investigations was an independent contractor of the City.

Dickinson argues that the employment of a private investigative agency, Metro Investigations, to conduct surveillance on a city employee was improper, because by doing so it sought to discharge a nondelegable duty. Therefore, Dickinson argues, the City is liable for the negligence of the independent contractor, Metro Investigations. Section 11-47-190, ...