Mitchell et al v. Howard et al

Filing 226

ORDER that the Recommendation of United States Magistrate Judge Wang ECF No. 200 is AFFIRMED and ADOPTED. Plaintiffs Motion to Set Aside Settlement ECF No. 63 is GRANTED and Defendant Cindy Howards Motion to Enforce Settlement Agreement ECF No. 74 is DENIED by Judge Wiley Y. Daniel on 3/16/2016 (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No.

14-cv-01068-WYD-NYW

LISA MITCHELL,
J.R.M., by and through her next friend William Montez,
SU. M., by and through his next friend Richard Murray,
SA. M., by and through his next friend Michael LaJoie, and
T.L., by and through his next friend Lorraine Ortega,
Plaintiffs,
v.
CINDY HOWARD,
SHERRI BACA, and
EL PUEBLO BOYS AND GIRLS RANCH, INC.,
Defendants.

ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
I.

INTRODUCTION
THIS MATTER is before the Court on the following filings: (1) Plaintiffs’ Motion to

Set Aside Settlement (ECF No. 63), filed August 13, 2015; (2) Defendant Cindy Howard’s
Motion to Enforce Settlement Agreement (ECF No. 74), filed August 19, 2015; (3)
Magistrate Judge Wang’s Recommendation (“Recommendation”) (ECF No. 200), filed
January 25, 2016; and (4) Defendant Howard’s Partial Objection to Recommendation of
United States Magistrate Judge (ECF No. 205), filed February 5, 2016.
After carefully considering all pleadings, evidence, and arguments presented by
the parties, Defendant Howard’s objections are overruled and Magistrate Judge Wang’s

Recommendation is affirmed.
II.

DISCUSSION
Since Defendant’s objections were timely filed, I conduct a de novo review of

Magistrate Judge Wang’s conclusions to which objection is made since the nature of
the matter is dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). As to the portion
of Magistrate Judge Wang’s Recommendation where no objection was filed, I am vested
with discretion to review the Recommendation Aunder any standard [I] deem[]
appropriate.@ Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas
v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended
to require district court review of a magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings”). Nonetheless,
though not required to do so, I review the Recommendation to “satisfy [my]self that there
is no clear error on the face of the record.”1 See Fed. R. Civ. P. 72(b) Advisory
Committee Notes.
In the Recommendation, Magistrate Judge Wang recommends that Plaintiffs’
Motion to Set Aside Settlement Agreement be granted and Defendant Howard’s Motion to
Enforce Settlement Agreement be denied. In formulating her Recommendation,
Magistrate Judge Wang held an evidentiary hearing and engaged in a detailed fact
finding analysis of the purported settlement negotiations that occurred in this case. After

1

Note, this standard of review is something less than a “clearly erroneous or contrary to
law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R.
Civ. P. 72(b).

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a thorough review, Magistrate Judge Wang concluded that the “settlement agreement not
be enforced because Ms. Ruttenberg (Plaintiffs’ counsel) did not have authority to
compromise, settle, or consent to a final disposition on behalf of Samuel Mitchell, and in
the alternative, any implied authority to settle had been revoked prior to the attorneys
reaching agreement on essential terms.” (Recommendation at 10). No objection was
made to this portion of the Recommendation. Having reviewed the Recommendation, I
am satisfied that there is no clear error on the face of the record, and I agree with
Magistrate Judge Wang that the settlement agreement should not be enforced as to
Plaintiff Samuel Mitchell.
Also in her Recommendation, Magistrate Judge Wang noted that because she
found
that Ms. Ruttenberg’s lack of authority from Samuel Mitchell to settle is
dispositive of the issue regarding enforceability of the settlement reached
by counsel, this court does not reach the more complicated issue of whether
Ms. Ruttenberg had authority from Ms. Mitchell to settle her portion of her
single claim against Defendant Howard. The court simply notes that there
is no evidence in the record that Ms. Mitchell ever specifically agreed that
settlement could include a non-admission of liability on the part of
Defendant Howard [#159 at 9] and as of August 8, 2015, when the
attorneys were agreeing to the form of settlement, including dismissing
Samuel Mitchell and settling solely with Ms. Mitchell [#152-3 at 1], the
relationship between Ms. Ruttenberg and Ms. Mitchell had deteriorated to
such a degree [#153-2 at 1-4] that this court cannot conclude that Ms.
Ruttenberg had authority to bind even Ms. Mitchell to different, material
terms by that time. [#159 at 9; #156 at 74:11-18].
(Recommendation at 14 n.8). Defendant Howard objects to this portion of the
Recommendation that the settlement agreement be set aside with respect to Plaintiff Lisa
Mitchell.
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“‘A trial court has the power to summarily enforce a settlement agreement entered
into by the litigants while the litigation is pending before it.’” Shoels v. Klebold, 375 F.3d
1054, 1060 (10th Cir. 2004) (quoting United States v. Hardage, 982 F.2d 1491, 1496
(10th Cir. 1993)). “Issues involving the formation and construction of a purported
settlement agreement are resolved by applying state contract law.” Id. (citing United
States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000)). In Colorado, “[i]n order for a
settlement to be binding and enforceable, there must be a ‘meeting of the minds' as to the
terms and conditions of the compromise and settlement.” H.W. Houston Constr. Co. v.
District Court, 632 P.2d 563, 565 (Colo. 1981). “[T]he evidence must show that the
parties agreed upon all essential terms.” I.M.A., Inc. v. Rocky Mountain Airways, Inc.,
713 P.2d 882, 888 (Colo. 1986).
Under Colorado law, the essential elements of a contract include “mutual assent
to an exchange, between competent parties, with regard to a certain subject matter, for
legal consideration.” Indus. Prod. Int'l v. Emo Trans., Inc., 962 P.2d 983, 988 (Colo. Ct.
App. 1997) (citation omitted). “An offer is a manifestation by one party of a willingness
to enter into a bargain [and a]n acceptance is a manifestation of assent to the terms of
the offer.” Id. (citing Restatement (Second) of Contracts §§ 24, 32 (1979)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo the portion of the
Recommendation to which Defendant Howard objects and I have considered carefully
the Recommendation, the objection, and the applicable case law. In the
Recommendation, Magistrate Judge Wang explains that although she need not reach the
issue of whether Ms. Ruttenberg had the authority from Ms. Mitchell to settle her claim
against Defendant Howard, the evidence does not support that Ms. Mitchell ever agreed
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that a settlement could include a non-admission of liability. Furthermore, based on my
careful review of the record, I believe there was a breakdown in communication between
Ms. Ruttenberg and Ms. Mitchell such that I cannot conclude that Ms. Ruttenberg had
authority to bind Ms. Mitchell to a settlement that included terms that were either not
communicated to Ms. Mitchell or were different than what Ms. Mitchell believed to be to be
the case. It is not clear whether there was a mutual assent by competent parties or that
the parties agreed upon all essential terms. Thus, Magistrate Judge Wang did not err in
determining that the settlement agreement should be set aside as to both Plaintiff Samuel
Mitchell and Lisa Mitchell. I conclude that the arguments asserted by Defendant Howard
in her objection are incorrect.
III.

CONCLUSION
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Wang

(ECF No. 200) is AFFIRMED and ADOPTED. Plaintiffs’ Motion to Set Aside Settlement
(ECF No. 63) is GRANTED and Defendant Cindy Howard’s Motion to Enforce Settlement
Agreement (ECF No. 74) is DENIED.
Dated: March 16, 2016
BY THE COURT:

/s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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