[No. 34729-6-II. Division Two. May 22, 2007.]
[1] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviews a summary judgment by engaging in the same inquiry as the trial court under CR 56(c), viewing the facts of the case and the reasonable inferences that may be drawn from the facts in a light most favorable to the nonmoving party. [2] Negligence Proximate Cause Question of Law or Fact Decision as a Matter of Law. In an action for negligence, the issues of negligence and proximate cause generally are not susceptible to summary judgment. [3] Judgment Summary Judgment Burden on Nonmoving Party Averment of Specific Facts Rebuttal of Affidavit. In a summary judgment proceeding, the nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain. If the moving party submits adequate affidavits showing the absence of any disputed issue of material fact, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of an issue of material fact. [4] Judgment Summary Judgment Determination Single Conclusion From Evidence. A motion for summary judgment should be granted only if reasonable persons could reach but one conclusion from the admissible facts in evidence. [5] Bail and Recognizance Bail Bonds Agent Dual Agent Use of Surety's Money for Another's Obligation Validity Superior Court Authorization To Operate. A bail bond agent that acts on behalf of more than one surety does not have actual or apparent authority to substitute money belonging to one surety for another surety's obligation merely because the superior court has authorized the bail bond agent to operate. [6] Principal and Agent Authority Apparent Authority Determination In General. Whether an agent has apparent authority to bind the principal to a contract depends on the circumstances of the individual case. [7] Principal and Agent Authority Apparent Authority Question of Law or Fact. Whether an agent has apparent authority to bind the principal to a contract is a question of fact. [8] Principal and Agent Authority Apparent Authority Determination Burden of Proof. The burden of establishing that an agent has apparent authority to bind the principal to a contract is on the party seeking to enforce the contract. [9] Principal and Agent Authority Apparent Authority Objective Manifestation In General. Whether a person has actual or apparent authority as an agent depends on the objective manifestations of the principal to a third party. [10] Principal and Agent Authority Apparent Authority Objective Manifestation Elements. The existence of an agent's apparent authority requires that the principal's objective manifestations (1) cause a third person to actually believe that the agent has authority to act for the principal and (2) are such that the person's belief is objectively reasonable. [11] Principal and Agent Authority Apparent Authority Inference Agent's Acts. Apparent authority to bind a principal may not be inferred from the acts of the agent. [12] Principal and Agent Authority Apparent Authority Inference Principal's Acts. An agent's apparent authority to bind the principal to a contract may not be inferred from the acts of the principal if the principal has no knowledge of the agent's acts. [13] Principal and Agent Bail and Recognizance Bail Bonds Agent Apparent Authority Objective Manifestation Bail Bond and Power of Attorney. A bail bond surety's manifestation of the scope of a bail bond agent's apparent authority to act on behalf of the surety typically is contained in the bail bond and related power of attorney. [14] Judgment Summary Judgment Burden on Moving Party Failure To Address Material Factual Issue Effect. Summary judgment should not be granted in favor of a movant if the movant fails to address an issue of fact that is material to the movant's claim or defense. Nature of Action: A bail bond surety sought damages from a county for the superior court clerk's distribution of the surety's bail bond money for another surety's bail bond obligations and subsequent return of the forfeited bail money to the sureties' dual agent, rather than to the surety. The clerk acted solely on the dual agent's representations. The surety had directed that its money be used only for its own obligations, and each of its bail bonds contained a corresponding power of attorney certificate so limiting the agent's authority. The superior court entered a summary judgment in favor of the county. In an unpublished opinion noted at 122 Wn. App. 1077 (2004), the Court of Appeals reversed the judgment and remanded the case for trial on whether, in light of the limiting power of attorney accompanying each bond, the court clerk properly relied on the dual agent's representations to apply and disburse the surety's funds for the other surety's obligations. Superior Court: On remand, the Superior Court for Pierce County, No. 02-2-04147-2, Chris Wickham, J., on March 17, 2006, entered a summary judgment in favor of the county, finding that the court clerk did not violate the standard of care for court clerks in Washington. Court of Appeals: Holding that disputed issues of material fact remain regarding whether the clerk's conduct was negligent in light of the express limiting powers of attorney on each bail bond and whether the clerk could rely solely on the agent's known dual representation in the absence of actions by the surety suggesting apparent authority to use the surety's money for another surety's obligations, the court reverses the judgment and remands the case for further proceedings. Brett A. Purtzer-, for appellant. Gerald A. Horne-, Prosecuting Attorney, and Douglas W. Vanscoy-, Deputy; and Robert M. McKenna-, Attorney General, and Glen A. Anderson-, Assistant, for respondents. Ά1 VAN DEREN, A.C.J. This is the second appeal in Ranger Insurance Company's suit against Pierce County (County) based on the Superior Court Clerk's (Clerk) distribution of Ranger's bail bond money for Granite State Insurance Company's bail bond obligations. In the first appeal, we remanded for trial on whether, in light of the limiting power of attorney accompanying each bond, the Clerk properly relied on the dual agent's own representations to apply and disburse Ranger's funds for Granite State's obligations. On remand, the trial court granted summary judgment to the County, finding that the Clerk did not violate the standard of care for court clerks in Washington. Ranger appeals, contending that disputes of material fact still exist about whether (1) the Clerk's conduct was negligent in light of the express limiting powers of attorney on each bond and (2) the Clerk could rely solely on the agent's known representation of multiple bonding companies in the absence of Ranger's actions suggesting apparent authority to use Ranger's money for another bonding company's obligations. Because the County's summary judgment motion did not address this issue of material fact, we reverse and remand again for trial. FACTS Ά2 Ranger's agent, Signature Bail Bonds, was an authorized bail bonds agent for both Ranger and Granite State. Ranger Ins. Co. v. Pierce County, noted at 122 Wn. App. 1077, 2004 Wash. App. LEXIS 1894, at *1. Signature wrote four appearance bonds in Pierce County to secure the appearance of two criminal defendants, David J. Rogers and Brandon E. Sims. Signature wrote one of the bonds ($15,000) on cause number 97-1-05295-7 from Ranger and the other three (a total of $20,000) from Granite State for cause number 97-1-05295-7 for Rogers, and cause number 00-1-01029-1 for Sims. Ά3 All four of the bonds were forfeited because Rogers and Sims failed to appear. Signature directed Ranger to send $35,000 to the Clerk's registry to cover Rogers' forfeited bonds, misrepresenting to Ranger that two of its own bonds had been forfeitedthe aforementioned $15,000 Ranger bond on cause number 97-1-05295-7 and a $20,000 Ranger bond on cause number 98-1-03952-5 that had not been forfeited. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *4. The actual status of the Ranger and Granite State bonds was as follows: Rogers 97-1-05295-7 $15,000 Ranger Ins. Forfeited 1997 Rogers 97-1-05295-7 $10,000 Granite St. Forfeited 1998 Rogers 98-1-03952-5 $20,000 Ranger Ins. Not Forfeited 2000 Sims 00-1-01029-1 $5,800 Granite Ins. Forfeited 2000 Sims 00-1-01029-1 $4,200 Granite Ins. Forfeited Ranger Ins., 2004 Wash. App. LEXIS 1894, at *2. Ά4 It is not refuted that Ranger submitted, along with the check, an invoice requesting that the Clerk's office allocate $20,000 to Rogers cause number 98-1-03952-5, which was not forfeited, and $15,000 to Rogers cause number 97-1-05295-7, which was later forfeited. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *4. Ά5 Not only did Ranger direct that the $35,000 be used only for its obligations, but each of Ranger's bail bonds have a corresponding power of attorney certificate, which state: This power void if altered or erased, void if used with other powers of this company or in combination with powers from any other surety company, void if used to furnish bail in excess of the stated face amount of this power, and can only be used once . . . and provided this Power-of-Attorney is filed with the bond and retained as a part of the court records. CP at 15 (emphasis added). Ά6 After the Clerk received Ranger's instructions, Signature's manager Ά7 When Rogers and Sims were arrested, Signature filed to exonerate the forfeited bail moneys, "falsely stat[ing] that it, not Ranger, had paid the forfeited bonds." Ranger Ins., 2004 Wash. App. LEXIS 1894, at *6. Based on Signature's misrepresentations, the trial court entered orders directing the Clerk to return the forfeited bail money to Signature. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *7. The Clerk disbursed the $35,000 to Signature. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *7 n.2. But Signature never returned the money to Ranger. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *7. Ά8 On January 16, 2002, Ranger sued Pierce County, alleging that the Clerk was negligent in two ways: (1) disbursing Ranger's $20,000 for bonds written by Granite State Ά9 Without reaching any remaining or potential issues that were not before us, including those relating to the Clerk's fiduciary responsibilities to persons required to pay money to its registry, we reversed for trial on the limited issues before us, concluding that (1) questions of material fact remained about whether, in light of the power of attorney accompanying each bond, Signature had apparent authority to receive money due Ranger that had been applied to Granite State's obligations and (2) the Clerk did not have quasi-judicial immunity in handling Ranger's bail money because processing the money was a ministerial act. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *8, *17-18, *22. Ά10 We held that Signature did not have actual authority to direct the Clerk to use Ranger's money for Granite State's obligations and that "the only real issue presented is whether Signature had apparent authority for its actions." Ranger Ins., 2004 Wash. App. LEXIS 1894, at *13. Thus, because "[r]easonable minds could differ as to whether Signature had actual or apparent authority to freely allocate Ranger bail moneys, and all of the facts necessary to determine this issue have not been presented," we remanded for a trial on Signature's apparent authority and rejected the trial court's reliance on Signature's own representations of authority. Ά11 We pointed out that Ranger's objective manifestations of Signature's authority were "contained in the bail bonds and the related powers of attorney filed with the court." Ranger Ins., 2004 Wash. App. LEXIS 1894, at *14. These documents informed the Clerk that Signature could act as Ranger's agent for Rogers' cases 97-1-05295-7 and 98-1-03952-5 and that Signature could not use its powers in combination with any other surety companies' powers. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *14. Ά12 The Clerk's reliance on a subjective belief that Signature could direct Ranger's funds contrary to Ranger's written directions posed questions of material fact about whether (1) that belief was reasonable and (2) a clerk of ordinary prudence would make further inquiry about Signature's ability to direct Ranger's funds in light of the filed powers of attorney, the posted bail bond, and entry of "cash bail" on a preexisting bond that has not been forfeited. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *15. Ά13 On remand, without addressing the issue of apparent authority or any other legal or factual issues, the County moved for summary judgment based on a declaration from Joel McAllister, a manager of Finance and Information Services for the King County Department of Judicial Administration. Ά14 The trial court granted summary judgment to the County because "Ranger [had not] been able to come up with some evidence in opposition to that." Report of Proceedings at 20. Ά15 Ranger appeals. ANALYSIS Ά16 Ranger's sole contention in this appeal is that the trial court erred in granting the County's summary judgment motion because the Clerk failed to follow Ranger's directives in a bail bond and its accompanying power of attorney. Ranger asserts that McAllister's declaration does not resolve the issues of material fact because a court clerk is required to follow such directives. We agree that the essential issue of material fact we identified in the first appeal still must be resolved. Ά18 We "consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party." Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). "The issues of negligence and proximate cause are generally not susceptible to summary judgment." Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). A nonmoving party, however, "may not rely on speculation, argumentative assertions that unresolved factual issues remain." Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Ά19 After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts that sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue of material fact. Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986). Where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment should be granted. LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027 (1989). Ά20 Here, the County submitted McAllister's declaration attempting to explain "the proper procedures for court clerks in receiving bail moneys." Ranger Ins., 2004 Wash. App. LEXIS 1894, at *17. According to McAllister's declaration: (1) it was not an error for the Clerk to make an entry stating that Ranger's bail bond money for cause number 98-1-03952-5 was "cash bail" because the phrase "cash bail" is a default transaction code to use "whenever funds are tendered in a criminal case in which the clerk has not yet received an order specifying what to do with such funds"; CP at 74, (2) "the [C]lerk clearly handled the receipt of the $20,000 which is involved here properly and in a manner fully consistent with the standard of care in clerk's offices in this state"; CP at 76, and (3) "[i]n complying with the direct order of the Court . . . the [C]lerk was of course acting consistent with the standard of care existing in clerk's offices in this state." CP at 77. McAllister also stated, [T]he $15,000 bond in the Rogers case was Ranger's; the other three were Granite State's. The clerk's office would not have known that, however, without pulling the court files and reviewing the bond documents themselves. Even if for some reason a clerk noticed that there were two different sureties involved, I would expect the clerk's reaction to be, in effect, "So what"? These bond companies are justified by the Superior Court through an established process designed to show that the company is qualified to conduct business in this field. Clerk's offices are not expected to challenge agents of companies that are expressly authorized by the Superior Court to operate. This would be especially true, as here, where the company (Signature) is authorized by the Court to issue bonds for both the sureties involved, Ranger and Granite State. . . . Aside from that, the clerk would not be aware of the relationship if any between the two sureties. Insurance companies buy and sell each other, and pieces of each other, from time to time. They can also have agreements between themselves governing various aspects of their businesses. In short, it would be extremely difficult for a clerk's office to question, in any timely and meaningful fashion, the direction of a bond agent to allocate funds of one surety to the obligations of another. Neither my office nor any other clerk's office in the state, to my knowledge, has ever engaged in such a review of the bona fides of bail bond agents. If clerks are required to second-guess the relationship between insurance companies and the authority of bond agents, this would increase our work load, our service lines would be longer than they are, and we would likely have to build in a buffer to give us time for such reviews. If my office were to undertake such reviews, I would expect our ability to handle matters such as exoneration of bail and prisoner releases on bail to be materially affected. . . . Certainly, the standard of care which currently exists in clerk's offices in this state does not call for such reviews. CP at 76-77. In sum, McAllister claims that the Clerk's actions "in connection with the Ranger check and the 1997 and 1998 Rogers and 2000 Sims cases were fully consistent with the standard of care concerning receipt, allocation, and disbursement of funds as those exist in clerk's offices today and in 2000." CP at 77-78. The County's sole evidence, McAllister's declaration, suggests that for any given bond transaction, a clerk has no independent responsibility to bonding companies to determine a bonding agent's authority and to properly record and disburse funds, despite the bonding companies' written and filed directives relating to that particular bond. Ά22 We held that Signature lacked "actual authority to direct the [C]lerk to use Ranger's check to cover Granite State's financial obligations" for the following reasons: (1) "[W]hile the agreement between Signature and Ranger granted Signature actual authority over 'all . . . matters of bond administration,' clearly this grant of authority only extended to the administration of Ranger bond matters"; (2) "[t]he agreement did not give Signature authority to allocate Ranger bail moneys to pay for Granite State's forfeiture costs"; and (3) "Signature's authority in allocating bail moneys did not extend to cases where bail had not been forfeited." Ranger Ins., 2004 Wash. App. LEXIS 1894, at *12-13 (third alteration in original) (citations omitted) (quoting CP at 86). Ά24 In determining whether the principal's objective manifestations will support a finding of apparent authority, we consider whether the principal's conduct would lead a reasonable person to believe that the agent had authority to act as well as whether the one claiming apparent authority actually believed that the agent had authority to act for the principal. King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994). Apparent authority cannot be based on the agent's actions. French, 88 Wn. App. at 595. "While apparent authority can be inferred from the principal's actions, 'there must be evidence the principal had knowledge of the act which was being committed by its agent.' " French, 88 Wn. App. at 595 (internal quotation marks omitted) (quoting State v. Parada, 75 Wn. App. 224, 231, 877 P.2d 231 (1994)). Ά25 Thus, in the first appeal, we reviewed the bail bonds and related powers of attorney and held: [A] genuine issue of material fact exists as to whether the [C]lerk reasonably believed that [Signature] had apparent authority, and all of the facts necessary to determine this issue have not been presented to this court. First, there were facts that may have led a person of ordinary prudence to make further inquiry regarding [Signature's] authority to bind Ranger. As noted, the [C]lerk's office had previously received the Ranger bonds posted for Rogers and the accompanying powers of attorney, indicating which bonds Ranger was insuring. In addition, the check Ranger submitted referenced the 1998 Rogers case, cause no. 98-1-03952-5; it did not refer to either the 1997 Rogers case or any cases involving Sims. Thus, the trial court erred in granting summary judgment on the issue of apparent authority. Ranger Ins., 2004 Wash. App. LEXIS 1894, at *15 (footnote omitted). Ά26 Here, McAllister's declaration endorses the Clerk's actions based solely on Signature's own representations of apparent authority. Ά27 Nothing in the record on appeal shows Ranger's objective manifestations supporting Signature's apparent authority. Nor is there any evidence that Ranger knew of Signature's fraudulent actions. See French, 88 Wn. App. at 595. Indeed, the bail bond and related powers of attorney strongly indicate that Ranger did not have knowledge of Signature's actions and that Signature lacked the authority to use Ranger's money for another bonding company's obligations. Ά29 The trial court erred in granting summary judgment to the County when unresolved material issues of fact remain. We remand again for determination of, in addition to any other remaining issues for the trier of fact, whether ignature had apparent authority to direct Ranger's money to pay Granite State's obligations. See French, 88 Wn. App. at 595. Ά30 We reverse and remand for trial. PENOYAR, J., and CASEY, J. PRO TEM., concur.