"Control must be proven; and proof of control requires more than proof of a mere right to determine if the person claimed to be an agent is conforming to the requirements of a contract." Id. (citing Malmberg v. American Honda Motor Company, Inc., 644 So. 2d 888 (Ala. 1994)). In the car dealership-manufacturer context, the Supreme Court of Alabama distinguished between a manufacturer's right to inspect a dealership for compliance with a dealership agreement and day-to-day supervision of how the dealership might comply with the agreement.
"The test for determining whether an agency existed by ‘estoppel’ or by ‘apparent authority’ is based upon the potential principal’s holding the potential agent out to third parties as having the authority to act." Malmberg v. American Honda Motor Co., 644 So. 2d 888, 891 (Ala. 1994). "Agency is generally a question of fact to be determined by the trier of fact," and "[w]hen a defendant’s liability is to be based on agency, agency may not be presumed …."
"The test for determining whether an agency existed by 'estoppel' or by 'apparent authority' is based upon the potential principal's holding the potential agent out to third parties as having the authority to act." Malmbergv. American Honda Motor Co., 644 So.2d 888, 891 (Ala. 1994).
One such manifestation of assent exists under agency law: “mutual rights and liabilities are governed by the apparent scope of the agent's authority which the principal has held out the agent as possessing, or which he has permitted the agent to represent that he possesses and which the principal is estopped to deny.” Malmberg v. Am. Honda Motor Co., Inc., 644 So.2d 888, 891 (Ala. 1994) (internal quotation omitted).
Under Alabama law, "[a]gency is generally a question of fact to be determined by the trier of fact," and "[w]hen a defendant's liability is to be based on agency, agency may not be presumed." Malmberg v. American Honda Motor Co., Inc., 644 So.2d 888, 890 (Ala. 1994). In the summary judgment context, when "a defendant has made a prima facie showing that there was no agency relationship, the party asserting agency has the burden of presenting substantial evidence of the alleged agency."
"Control must be proven; and proof of control requires more than proof of a mere right to determine if the person claimed to be an agent is conforming to the requirements of a contract." Malmberg v. American Honda Motor Company, Inc., 644 So.2d 888 (Ala. 1994). The court finds the reasoning of Malmberg v. American Honda Motor Company, 644 So.2d 888 (Ala. 1994), to be applicable in this case as to the issue of an express agency relationship.
Wesley cites and discusses various decisions from other jurisdictions in support of his argument that his claim against St. Vincent's should be allowed to go forward under the liability concepts expressed by the sections of the Restatements he cites, but he cites no decisions from either this Court or the Court of Civil Appeals in this section of his principal brief. In the corresponding section of his reply brief, he cites John Deere Construction Equipment Co. v. England, 883 So.2d 173 (Ala. 2003), but without discussing its holding other than to state that "[u]nder the analysis recently used by this Court in John Deere, the plaintiff has presented a factual issue on agency" (Wesley's reply brief, p. 4); he also cites Malmberg v. American Honda Motor Co., 644 So.2d 888 (Ala. 1994), but only as support for his statement that "[t]his Court applies apparent agency to the manufacturer-dealer relationship." Arguably, by eschewing any consideration of Alabama law on point in his principal brief, and relying exclusively on foreign caselaw and the two sections from the two Restatements, Wesley has "put all his eggs in one basket" and has waived his right to seek a reversal based upon principles of Alabama law.
Further, he stated, "I did not receive a repair order form or any other form that warned me of Swift's independent ownership and operation of the AAMCO shop." After further procedural jockeying between the parties, involving numerous court filings and an interim order by the trial court, none of which require discussion in light of the specific nature of the two issues Rosser raises on appeal, the trial court entered a detailed final order in Rosser I on August 19, 2004, entering a summary judgment in favor of AAMCO. The court noted that in Malmberg v. American Honda Motor Co., 644 So.2d 888, 890 (Ala. 1994), this Court had explained the initial burden of proof to be carried by a defendant moving for a summary judgment based on a denial of agency, and how the burden shifted to the nonmovant plaintiff if the defendant made the requisite prima facie showing: Upon remand from this Court, the trial court certified, pursuant to Rule 54(b), Ala. R. Civ. P., that there was no just reason for delay and that the summary judgment entered in Rosser I was a final judgment.
We must review the record to determine whether there was sufficient evidence to produce a conflict for a jury to resolve as to whether, in connection with the sale and servicing of the used 648-E model skidder, Warrior was acting as Deere's agent. If the evidence is insufficient to create a jury question on the agency issue, Deere cannot, as a matter of law, be held liable for the acts of Warrior. Several cases are relevant to the agency issue presented in this appeal. The first of these cases is Malmberg v. American Honda Motor Co., 644 So.2d 888 (Ala. 1994). In that case, Malmberg purchased a used Honda automobile from Tri-States, Inc. Tri-States, an independently owned dealership, was an authorized dealer of Honda products. Tri-States and American Honda had entered into an "Automobile Dealer Sales and Service Agreement," which outlined the relationship between Tri-States and American Honda. That agreement provided, in substance, that Tri-States was to sell Honda automobiles and to provide warranties on Honda products.
John Deere Const. Equip. Co. v. England, 883 So.2d 173, 178 (Ala. 2003) (quoting Malmberg v. Am. Honda Motor Co., Inc., 644 So.2d 888, 890 (Ala. 1994)).