Jowers v. Wynne et al

Filing 43

OPINION. Signed by Honorable Judge Myron H. Thompson on 2/4/2013. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ROSSLON JOWERS,
Plaintiff,
v.
ALABAMA BOARD OF PARDONS,
AND PAROLES, et al.,
Defendants.

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CIVIL ACTION NO.
2:12cv423-MHT
(WO)

OPINION
Plaintiff Rosslon Jowers brought this action charging
race and sex discrimination and naming as defendants the
Alabama Board of Pardons and Paroles and three members of
the board (William W. Wynne, Jr., Cliff Walker, and
Robert P. Longshore).

Jowers claims that the defendants’

conduct violated the Fourteenth Amendment (as enforced by
42 U.S.C. § 1983) and Title VII of the Civil Rights Act
of

1964,

2000e–16).

as

amended

(42

U.S.C.

§§

1981a,

2000e

to

Jurisdiction is proper under 28 U.S.C. §§

1331 (federal question) and 1343 (civil rights) and 42
U.S.C. § 2000e–5(f)(3) (Title VII).

The case is now

before

this

court

on

the

defendants’

motion

for

settlement enforcement.
At an evidentiary hearing held on December 18, 2012,
the defendants contended that a settlement agreement was
reached,

as

reflected

in

a

handwritten

settlement

contract signed by both sides and a subsequent typed
document including additional terms and that, thus, the
case should be dismissed.

Jowers, who was proceeding

without counsel after her previous attorney withdrew from
representing her, countered that her attorney was not
authorized (and lacked the power) to settle her case and
that she should therefore be allowed to proceed in the
litigation.

The court gave Jowers until January 2, 2013,

to obtain new counsel and make additional arguments, and
after that date, the court would decide the settlement
dispute on the basis of the evidence presented at the
hearing.

That date having passed and Jowers having not

received new representation, the court now resolves the

2

matter

and

holds

that

the

defendants’

motion

for

settlement enforcement should be granted.
A district court ordinarily has the power to enforce
a settlement agreement entered into by litigants while
litigation is pending before that court.

Mass. Cas. Ins.

Co. v. Forman, 469 F.2d 259, 260 (5th Cir. 1972) (per
curiam).*

In determining whether a valid, enforceable

settlement agreement has been reached by the parties,
federal courts have differed on the source of law to
apply.

Courts have decided, on some occasions, that

federal common law governs, see, e.g., Eatmon v. Bristol
Steel & Iron Works, Inc., 769 F.2d 1503, 1516 (11th Cir.
1985) (citing Fulgence v. J. Ray McDermott & Co., 662
F.2d

1207,

1209

(5th

Cir.

1981)),

and,

on

other

occasions, that state law governs, see, e.g., Resnick v.
Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th
Cir. 2000).

See also Hogan v. Allstate Beverage Co.,

* The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981) (en banc).
3

Inc.,

821

F.

Supp.

2d

1274,

1279

(M.D.

Ala.

2011)

(Thompson, J.) (discussing the differing approaches). In
this case, because the operative principles under federal
common law and Alabama law do not materially differ,
“the court need not resolve which body of law applies.”
Id.
Under Alabama law, a settlement agreement is not
enforceable unless it is reduced to writing.

See 1975

Ala.

attorney

Code

§

34-3-21

(providing

that

an

authorized to settle a client's case “has authority to
bind his client, in any action or proceeding, by any
agreement in relation to such case, made in writing”);
see also Hogan, 821 F. Supp. 2d at 1279.

Federal law, by

contrast, requires only that settlement agreements “be
entered

into

‘voluntarily

and

knowingly’

by

the

plaintiff” and “does not require ... that the settlement
be reduced to writing.”

Fulgence, 662 F.2d at 1209.

Because, in this case, both parties agree that there is

4

a written settlement contract, the difference between
federal and state law is immaterial.
For an attorney to bind his client to a settlement
agreement

with

an

opposing

party

in

litigation,

the

attorney must act with either “express authority” or
“apparent authority.”

See Mid-South Towing Co. v. Har-

Win, Inc., 733 F.2d 386, 391 (5th Cir. 1984) (federal
common law); Alexander v. Burch, 968 So. 2d 992, 996-97
(Ala. 2006) (Alabama law).

In settling a lawsuit, an

attorney acts with express authority when, based on the
statements

and

conduct

of

the

client,

the

attorney

reasonably believes that he is acting as the client
wishes.

See Restatement (Third) Of Agency § 2.01.

By

contrast, an attorney acts with apparent authority when,
based

on

the

client’s

statements

and

conduct,

the

opposing party in the litigation reasonably believes that
the client has authorized the attorney to settle the
lawsuit (regardless of whether the client in fact gave
such authorization).

See id. § 2.03.

5

Therefore, if a

client

instructs

her

attorney

to

refuse

settlement

offers, but conducts herself before the opposing party in
a manner that indicates the opposite, she is nevertheless
bound to a settlement agreement made by her attorney.
See Johnson v. Shenandoah Life Ins. Co., 281 So. 2d 636,
640 (Ala. 1973) (“The doctrine of apparent authority does
not rest upon what one thinks an agent’s authority may
be, or what the agent holds out his authority to be;
rather, the doctrine of apparent authority is based on
the principal’s holding the agent out to a third person
as having the authority under which he acts.”) (quotation
marks and citation omitted).
Here,

it

is

clear

that

Jowers

created

apparent

authority for her attorney to settle the case. Jowers and
her attorney met with the defendants’ counsel and a
representative of the defendants to discuss settlement in
a mediation session conducted by one of this court’s
magistrate

judges.

After

the

negotiating

attorneys

reached agreement, a handwritten settlement contract was

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drafted

and

signed

by

Jowers,

the

defendants’

representative, and counsel for both sides.

Throughout

the entirety of the mediation session, Jowers did not
state to the defendants’ representative or counsel that
she desired not to settle, nor did her outward conduct in
any other way provide the defendants with any indication
of such.

In these circumstances, a reasonable person in

the defendants’ position would believe that Jowers had
agreed

to

settlement

accordingly.

and

authorized

her

attorney

Jowers does not contest these facts.

The evidence, in addition to establishing apparent
authority, supports that Jowers’s attorney more likely
than not had express authority to settle her case (that
is, he had the reasonable belief that she had actually
authorized

him

to

settle).

According

to

Jowers’s

testimony, she expressed misgivings to her attorney about
settlement,

but

he

stated

that,

in

his

professional

opinion, her case was likely to be dismissed by the court.
Jowers discussed controlling case law with the magistrate

7

judge who was mediating, and the judge told her, as Jowers
recalls, that “there’s a fifty/fifty chance” that she can
succeed. Hr’g Tr. (Doc. No. 41) at 71:3-5. Moreover, her
attorney explained that, if she rejected settlement, she
would be liable for certain expenses incurred in the
course of the litigation.

Jowers explained, “So at this

time, what choice do I have?”

Id. at 67:5-6.

But she

also stated that: “[The attorney] knew that I didn’t want
to settle.
67:11-12.

As a matter of fact, I told him.”

Id. at

In the end, she concedes that she signed the

settlement agreement, but that “it was against my will”
and that “the only reason that I signed was because [the
attorney] told me, ‘There is nothing else available for
you.’”

Id. at 71:24-72:1.

The attorney testified that,

from his perspective, he always believed that Jowers had
consented to settle.
Balancing the testimony, the court finds that the
most probable truth is that Jowers’s attorney reasonably
believed Jowers’s lawsuit was not likely to succeed and

8

that, after making Jowers aware of his opinion, Jowers
begrudgingly consented to settlement while wishing that
circumstances were otherwise. As such, at the time of the
mediation, Jowers’s attorney had express authority to
settle the lawsuit on the agreed-upon terms, even though
Jowers later regretted giving him that authority.
Jowers raises two arguments for why she should not be
bound by the settlement agreement she signed.

First, she

contends that her attorney convinced her to accept a
settlement agreement that she did not want and that he
ignored her express desire to proceed to trial.

The

allegations are troubling, and if Jowers’s attorney in
fact sought settlement while being aware that Jowers
desired to reject all offers, his conduct would likely
amount to a violation of his ethical duties.

See Ala.

Rules of Prof’l Conduct 1.2(a) (“A lawyer shall abide by
a

client's

decision

whether

settlement of a matter.”).

to

accept

an

offer

of

However, because, for the

reasons already explained, Jowers’s attorney had both

9

express an apparent authority to settle her case, her
argument lacks merit.
Second, Jowers contends that her attorney was never
authorized to act as her attorney at all and that, thus,
he could not have represented her in any capacity, let
alone bound her to a settlement agreement.

She states

that she wanted to hire a different attorney and that,
through a series of events that are not entirely clear to
the court, she wound up with another lawyer purporting to
represent her.

Regardless as to whether Jowers wanted to

hire a different attorney initially, the attorney who
accompanied her to the mediation before the magistrate
judge had both express and apparent authority to settle
her case, and she is thus now bound by that settlement.

***

The court will, therefore, enter a judgment providing
for the following: first, granting the defendants' motion

10

to

enforce

requiring

the

the

settlement

parties

to

agreement;

comply

with

and,
the

second,

settlement

agreement. Because the agreement includes, among its
provisions,

a

requirement

that

Jowers's

lawsuit

be

dismissed, the court will dismiss her claims. However,
this dismissal will not be of the entire lawsuit, for the
court will retain jurisdiction to enforce the settlement
agreement;
regarding

in

other

words,

enforcement

of

the

the

aspect

settlement

of

this

will

case

not

dismissed.
DONE, this the 4th day of February, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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