Heuser v. Kephart
| Decision Date | 30 June 2000 |
| Docket Number | No. 98-2233,98-2233 |
| Citation | 215 F.3d 1186 |
| Parties | (10th Cir. 2000) ANTHONY HEUSER AND NONA HEUSER, Plaintiffs-Appellants, v. FRANK KEPHART;FARMINGTON UTILITY SYSTEM; JACK MCQUITTY, Code Compliance Officer; STEPHEN HRZICH, City Electrical Inspector, City of Farmington; JAMES CHEVERIE, ROGER LASATER, SAN JUAN COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants-Appellees |
| Court | U.S. Court of Appeals — Tenth Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (
Debra D. Poulin, Santa Fe, New Mexico, (Richard Rosenstock, Santa Fe, New Mexico and Jeffrey J. Buckels, Albuquerque, New Mexico on the briefs) for the plaintiffs-appellants.
David G. Reynolds (Wayne E. Bingham with him on the brief), Crider, Bingham & Hurst, P.C., Albuquerque, New Mexico, for the defendants-appellees Hrzich, McQuitty and City of Farmington Utility System.
Robert C. Armijo (Gregory W. MacKenzie with him on the brief), Civerolo, Gralow & Hill, Albuquerque, New Mexico, for defendants-appellees Kephart, Cheverie, Lasater and San Juan County Board of County Commissioners.
Before EBEL, HOLLOWAY and KELLY, Circuit Judges.
Plaintiffs/appellants Anthony and Nona Heuser (plaintiffs) bring this timely appeal from a judgment of the district court dismissing, pursuant to a putative settlement agreement, a suit they brought under 42 U.S.C. 1983. The Section 1983 action alleged constitutional violations by state, county and city officials in denying electrical services to plaintiffs, inter alia. Contending that no enforceable settlement agreement had been reached, the plaintiffs opposed the dismissal below and now ask this court to reverse the judgment of dismissal.
Because the issues in this appeal are limited to those involving the enforceability of the putative settlement agreement of April 15, 1998, the "Outline of Agreement," we need only provide a brief general sketch of the underlying dispute. Except for findings of the district court noted below, we summarize only the plaintiffs' allegations.
Plaintiffs apparently live near to but not within the city limits of Farmington, New Mexico and before the present controversy, received their electrical service from the Farmington Utility System. Defendant Kephart, a building inspector for the county, allegedly entered plaintiffs' property without a warrant in 1991. As a result of what he saw then, he brought a criminal charge of constructing a building without a permit. Eventually plaintiffs were acquitted of that charge. While that criminal case was pending, however, a search warrant was obtained for some of the outbuildings on plaintiffs' property, and the warrant was executed on March 11, 1992. The actions of some of the defendants in obtaining and executing this search warrant are central events alleged by plaintiffs in the instant case.
The district judge found that the following facts were undisputed.1 Kephart was not properly certified as a building inspector. None of the officers who assisted Kephart in presentation of the search warrant application demonstrated their credentials to conduct an administrative inspection. The allegations in the search warrant application were limited to violations of county ordinances regarding proper set back and/or fire separations, failure to obtain building permits, and the existence of five or more structures "that appear to be fire hazards to adjacent buildings and property lines." Aplt. App. 63, 65-66.
The district judge further found that no allegations of electrical or plumbing code violations were made in the affidavit and Kephart was neither qualified nor authorized to conduct electrical or plumbing inspections. Kephart asked defendant Hrzich to investigate the electrical wiring of the plaintiffs' buildings in spite of the lack of allegations of violations of electrical codes in the search warrant affidavit. No allegations of criminal activity were made in the search warrant affidavit. The district judge found that in the affidavit defendant Deputy Sheriff Cheverie "falsely accused Plaintiffs of committing crimes in violation of a county ordinance and misinformed the magistrate who issued the criminal search warrant that Plaintiffs' refusal to allow Kephart right of entry on their property without a warrant in itself violated the building code." The search warrant authorized a search only by Kephart, but other inspectors or law enforcement officers (ten of them according to plaintiffs' allegations) joined him in executing the warrant. While executing the warrant, two of the defendants entered the plaintiffs' residence, which was expressly excluded from the search warrant. Id.
About two months after execution of the search warrant, plaintiffs filed a tort claim with the county. On June 10, 1992, within a week of plaintiffs' filing of the claim, two of the defendants cut off plaintiffs' electrical service. Service was restored on April 2, 1993, but on May 26, 1993, it was again terminated by some of the defendants. Service was then not restored for about five years, under circumstances discussed below. Altogether, the plaintiffs were without electric service from the City for almost six years, relying on electricity from their own generator during that time.
About three years after the March 1992 execution of the search warrant, plaintiffs commenced the present Section 1983 action. Plaintiffs, who originally were proceeding pro se, sued the Governor and the Attorney General of New Mexico; the City Council of Farmington and the Farmington Utility System (the City); the Board of Commissioners of the County of San Juan (the County); and various county and city officials. Plaintiffs invoked 42 U.S.C. 1983, inter alia, alleging that the defendants had violated plaintiffs' constitutional rights. The district court thus had jurisdiction under 28 U.S.C. 1331 and 1343. The state officials were dismissed during the progress of the case and are not parties to this appeal.
On April 15, 1998, about three years after the action had been commenced, a settlement conference was conducted with a court-appointed mediator. At the conference there was agreement on the basic contours of a settlement, which the mediator summarized in a hand written document styled "Outline of Agreement" and which was signed by plaintiffs, their attorney, and attorneys for the City, Defendants and for San Juan County. Aplt. App. 106-109. (The attorney for the City also was representing the city employees and officials; similarly the attorneys for the County were also representing the county employees and officials.)
We quote the most pertinent provisions of the Outline:2
1. Counsel for the County and City Defendants agree that they will recommend to their respective clients that said clients jointly pay the total sum of $237,500 in full and complete settlement of all claims in this above-referenced action filed or that could have been filed including attorneys fees and costs.
2. Plaintiffs agree that if said sum of $237,500 is jointly offered as indicated above by the County & City Defendants that they will accept said offer, if it also includes the terms set out below.
3. Farmington Utility System agrees that if a full and complete settlement is reached, they will promptly restore electrical service to the Heuser's [sic] property . . . and the Heusers will be reinstated as regular customers without need of an inspection, subject to the Heusers[] signing a Hold Harmless Agreement.
4. The Heusers agree to sign a full and complete standard release in a form satisfactory to Defendants which Release shall contain language that Defendants do not admit liability.
As made clear in an affidavit of counsel later submitted to the district court, the attorney representing the City at the mediation session did not have authority to commit the City to any settlement, which required the approval of the City Council.3 Before that body could meet and approve the proposal, plaintiffs communicated their dissatisfaction with it and indicated that they would not accept the payment called for therein. Upon receiving notice that the settlement was being rejected by the plaintiffs, the district judge sua sponte scheduled a hearing to determine whether plaintiffs' electricity could be safely restored immediately. Aplt. App. 70-71. Before the day of the scheduled hearing, the service was restored.
The defendants moved for enforcement of the purported settlement agreement, which the district court granted over plaintiffs' objection. The court entered judgment based on that order, dismissing plaintiffs' action as settled. Plaintiffs then filed a motion under Fed. R. Civ. P. 59(e) asking the court to vacate the order enforcing the settlement. The judge denied that motion, again holding that the Outline constituted an enforceable agreement, and plaintiffs commenced this appeal.
In the first of the two orders upholding the settlement agreement, the district judge ruled that the language of the Outline was unambiguous so that there was no need for extrinsic evidence as to the meaning of its terms. The judge found no merit in plaintiffs' contention that the terms of the Outline were not sufficiently definite for creation of a binding contract, and she found that the parties intended to form a final enforceable agreement, as opposed to merely documenting the progress of their negotiations. Her findings stated:
Since the City Defendants are self insured, the City Council had to give final formal approval of the settlement amounts. Affidavit of Robin D. Strother. Accordingly, the parties agreed that "Counsel for the County and City Defendants will recommend to their respective clients that said clients jointly pay the total sum of $237,500 in full and complete settlement of all claims in the action filed or that could have been filed including attorneys fees and costs."
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