Kanawha County 10-C-1342
Jack Bruer, pro se, appeals the September 17, 2017, order of
the Circuit Court of Kanawha County enforcing a settlement by
which all parties agreed to dismiss their claims against each
other. Respondent RBM Development, LLC ("RBM"), by
counsel Timothy J. LaFon, filed a summary response.
Respondent Travelers Casualty Insurance Company of
Connecticut ("Travelers"), by counsel John Andrew
Smith, filed a summary response. Petitioner filed a reply to
each summary response.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's orders is appropriate under
Rule 21 of the Rules of Appellate Procedure.
leased premises from RBM on which he operated a barbeque
restaurant. His business was insured through a policy issued
by Travelers. On or about August 29, 2009, a fire caused
significant damage to petitioner's restaurant. As a
result of missed rental payments during subsequent months,
RBM filed an action against petitioner and Pam
Napier. Petitioner filed a counterclaim, alleging
that RBM breached their lease agreement. On September 6,
2013, petitioner filed a third-party complaint, alleging that
Travelers committed bad faith in its handling of the claim
that petitioner filed regarding the fire at his restaurant.
January 28, 2016, Attorney Mark Plants filed a notice of
appearance as counsel of record for petitioner. Mr. Plants
thereafter negotiated a settlement agreement with RBM and
Travelers, by which each party would dismiss their claims
against each other. The two orders dismissing
petitioner's claims against Travelers, both entered
October 3, 2016, specifically provided that "each party
[was] to bear its own costs and attorney's
fees." On November 17, 2016, the circuit court
entered an agreed order dismissing RBM's claim for back
rent against petitioner and petitioner's claim for breach
of contract against RBM, and "dismiss[ing] this case in
its entirety with prejudice and strik[ing] the same from the
March 28, 2017, more than four months after the entry of the
November 17, 2016, order, dismissing the case, petitioner
filed pro se a motion that he styled as a "motion to
continue." Petitioner requested reinstatement of his
case on the docket, arguing that Mr. Plants did not possess
authority to settle the case on his behalf. The circuit court
held a hearing on petitioner's motion on May 15, 2017, at
which "[petitioner] and [Ms.] Napier admitted that they
retained [Mr.] Plants as their counsel of record." By
order entered September 17, 2017, the circuit court denied
petitioner's motion, finding that Mr. Plants had apparent
authority to settle the case on petitioner's behalf:
Here[, ] there can be no dispute as to whether [Mr.] Plants
had apparent authority to act for [petitioner and Ms. Napier]
inasmuch as they admit in their motion they hired [Mr.]
Plants to represent them and the record reflects he filed a
[n]otice of [a]ppearance, served discovery, attended
[s]cheduling [c]onferences[, ] and signed [o]rders.
the circuit court enforced the parties' settlement
agreement and ruled that "this action shall remain
dismissed as per the previous dismissal orders entered . . .
October 3[, 2016, ] and November 17, 2016."
now appeals the circuit court's September 17, 2017, order
enforcing the parties' settlement agreement. "[T]his
Court employs an abuse of discretion standard when reviewing
a circuit court order enforcing a settlement agreement."
Burdette v. Burdette Realty Improvement, Inc., 214
W.Va. 448, 452, 590 S.E.2d 641, 645 (2003). In syllabus point
one of Sanders v. Roselawn Memorial Gardens, 152
W.Va. 91, 159 S.E.2d 784 (1968), we held that "[t]he law
favors and encourages the resolution of controversies by
contracts of compromise and settlement rather than by
litigation; and it is the policy of the law to uphold and
enforce such contracts if they are fairly made and are not in
contravention of some law or public policy."
appeal, petitioner argues that his attorney settled his case
without authority from petitioner to do so. RBM and Travelers
counter that the circuit court properly enforced the
parties' settlement agreement because petitioner's
attorney had apparent authority to settle the case. We agree
with RBM and Travelers. In Messer v. Huntington
Anesthesia Group, Inc., 222 W.Va. 410, 420, 664 S.E.2d
751, 761 (2008), we determined that an attorney had apparent
authority to bind his clients to a settlement agreement. We
found that "[w]hen an attorney-client relationship
exists, apparent authority of the attorney to represent his
client is presumed" and that "[w]hen an attorney
appears in court representing clients there is a strong
presumption of his authority to represent such clients, and
the burden is upon the party denying the authority to clearly
show the want of authority." Id. at 418-19, 664
S.E.2d at 759-60 (internal quotations and citations omitted).
the circuit court found that Mr. Plants had apparent
authority to bind petitioner to the parties' settlement
agreement, noting that, from January 28, 2016, until November
17, 2016, when the case was retired from the court's
docket, Mr. Plants acted as petitioner's attorney and
"served discovery, attended [s]cheduling [c]onferences[,
] and signed [o]rders." While petitioner argues that Mr.
Plants did not have actual authority from him to settle the
case, petitioner fails to make any showing that Mr. Plants
did not have the apparent authority to do so, which flowed
out of Mr. Plants' legal representation of petitioner.
Therefore, based on our review of the record, we concur with
the circuit court's finding that Mr. Plants had apparent
authority to bind petitioner to the parties' settlement
agreement. Accordingly, we conclude that the circuit court
did not abuse its discretion in enforcing the settlement
foregoing reasons, we affirm the circuit court's
September 17, 2017, order enforcing the parties'
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan ...