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Douglas v. Monroe2/26/2001
iance on the attorney's statements or conduct. An attorney has in effect consented to the establishment of an attorney-client relationship if there is "proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it." Hacker, 570 N.E.2d at 956 (quoting Kurtenback v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977)).
"The cases actually applying this rule to find attorney liability are few, and liability has been found only when the attorney undertook, gratuitously or otherwise, to complete an affirmative act for the party who later brought suit." Id. We stressed in Hacker that the appellant would not be able to obtain an instruction on her reliance theory upon retrial unless she could "demonstrate either that she had a prior, continuous attorney-client relationship with [the attorney] or that [the attorney] agreed to act in her behalf in the transaction." Id. at 957. Here, Monroe undertook no affirmative act; there was no prior, continuous attorney-client relationship; and Monroe did not agree to act on Carol's behalf in any transaction. Rather, Carol's brother had a brief conversation with an attorney passing through a bank lobby one day, and during that conversation the attorney responded that the relevant statute of limitation was two years. Under the circumstances, Monroe did not know Carol would rely on this isolated statement, and any reliance Carol placed on the statement was not reasonable. Thus, we find Carol's detrimental reliance theory unavailing.
Finally, we address Carol's assertions of agency. To establish an actual agency relationship, three elements must be shown: (1) a manifestation of consent by the principal to the agent; (2) an acceptance of the authority by the agent; and (3) control exerted by the principal over the agent. Johnson v. Blankenship, 679 N.E.2d 505, 507 (Ind. Ct. App. 1997), aff'd 688 N.E.2d 1250 (Ind. 1997). Apparent agency is also initiated by a manifestation of the principal. Swanson v. Wabash College, 504 N.E.2d 327, 331 (Ind. Ct. App. 1987).
However, the necessary manifestation is one made by the principal to a third party who in turn is instilled with a reasonable belief that another individual is an agent of the principal. It is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party. Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship. Id. at 332 (citations omitted).
"Generally, the question of whether an agency relationship exists is a question of fact." Id. (emphasis added). However, if the evidence is undisputed, there are times when summary judgment is appropriate in agency cases. See, e.g., Drake v. Maid-Rite Co., 681 N.E.2d 734 (Ind. Ct. App. 1997); Jarvis Drilling, Inc. v. Midwest Oil Producing Co., 626 N.E.2d 821 (Ind. Ct. App. 1993), trans. denied; Swanson, 504 N.E.2d 327.
Here, there is evidence, albeit conflicting, regarding the first two prongs of the agency test. Resolving this evidence in favor of Carol as we must, see Bamberger, 665 N.E.2d at 936, we presume that there was a manifestation of consent by Carol to Lionel and that he accepted the authority. As for the third prong, Lionel's affidavit provides the only potential support for the notion that Carol had control over Lionel. Lionel's affidavit, submitted after Monroe filed her motion for summary judgment, states, " t all times that I sought Deidre Monroe's advice, I was doing so under the direction and control of my sister Carol, who had asked for my help."
"Trial
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