Luethke v. Suhr
| Decision Date | 09 August 2002 |
| Docket Number | No. S-00-396.,S-00-396. |
| Court | Nebraska Supreme Court |
| Parties | Jonathan LUETHKE, Appellee, v. Ronald SUHR et al., Appellants. |
Stephanie Frazier Stacy, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellants.
Michael A. Nelsen, of Hillman, Forman, Nelsen, Childers & McCormack, Omaha, for appellee.
Appellee, Jonathan Luethke, filed a personal injury lawsuit against the appellants, Ronald Suhr, Sandi Suhr, and Marci Kloppel, after an automobile injury accident involving Luethke and Kloppel. While trial was pending, the parties' counsel reached a settlement agreement; the settlement agreement was not reduced to writing, and subsequently, the appellants filed an amended answer and cross-petition to enforce the agreement. The district court bifurcated the proceedings between the settlement agreement enforcement claim and Luethke's personal injury cause of action. In a bench trial of the settlement enforcement claim, Luethke testified over the appellants' evidentiary objections that he did not give his attorney the authority to settle his claim. The district court concluded that because the attorney-client agency relationship regarding settlement agreements does not include apparent authority to settle, the appellants could not enforce the settlement agreement. The appellants appealed the judgment of the district court. The court has yet to try the personal injury claim.
On June 27, 1995, Luethke was injured in an automobile accident. Attorney Mary Wickenkamp filed suit on Luethke's behalf on July 14, 1997, alleging in the petition that Kloppel, driving a truck owned by Ronald Suhr and Sandi Suhr, negligently struck the rear of Luethke's vehicle while he waited to make a left-hand turn at the intersection of Nebraska Highway 15 and Waverly Road in Seward County. The appellants retained attorney Alan Plessman to represent them in the suit filed by Luethke.
On July 20, 1998, the day before a scheduled pretrial conference, Plessman faxed the following letter, in pertinent part, to Wickenkamp:
Later that same day, Wickenkamp responded in a faxed letter, in pertinent part:
I have not been able to make contact with my client by 5:00 to get positive authority to accept your offer of $16,000. I am willing to recommend your offer to my client, but I need to meet with Jon to discuss it. As we have discussed before, this young man has a developmental disability and I need to make certain his decision in this matter is informed.
That same day, Plessman responded to Wickenkamp and extended the offer until 9 a.m. the following morning.
On July 21, 1998, Wickenkamp accepted Plessman's offer via faxed letter: The district court judge's docket notes for July 21, 1998, read: " "
Plessman sent settlement documents to Wickenkamp on July 21, 1998, with a letter stating: In a letter dated July 29, 1998, Wickenkamp responded:
Thank you for getting me the settlement documents so promptly. I've sent them on to my client. His uncle wants to review them with me and Jon as well. I'm on my way out of town and have a meeting with them set after I come back. Please understand it is not a problem. The uncle has been involved throughout this and just wants to make sure my client, who is somewhat disabled, understands everything. I do not anticipate any problem with the settlement, its just a matter of logistics. I will be in touch when I return.
The record provides no further correspondence between Plessman and Wickenkamp, and Plessman testified that the next thing he received was Wickenkamp's motion to withdraw as counsel. Plessman never received executed settlement or dismissal documents.
On September 16, 1998, the district court judge filed a judge's note which asked: "`Counsel: The paperwork, please?'" Wickenkamp's deposition, read into the record in part and accepted as a whole as exhibit 2, reveals that she withdrew as counsel in October 1998 after having her professional employment terminated by Luethke. On November 3, the district court judge filed another judge's note asking, "`Mr. Plessman: What has become of the settlement we were told of back in July?'"
The district court granted the appellants leave to file an amended answer and cross-petition, which they subsequently filed, affirmatively stating that the parties had reached a settlement agreement and requesting that the court enforce that agreement. By this time, Luethke had retained his present counsel to replace Wickenkamp. The district court next granted the appellants' request to bifurcate the proceedings between Luethke's personal injury claim and the appellants' cross-petition to enforce the settlement agreement. The appellants hired substitute counsel for the settlement agreement bench trial because Plessman would testify at trial.
The appellants made a motion in limine prior to the start of the settlement enforcement hearing, seeking to prevent Luethke from testifying regarding the settlement agreement pursuant to Neb.Rev. Stat. § 7-107(2) (Reissue 1997). Section 7-107 states:
An attorney or counselor has power... (2) to bind his client by his agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court....
The district court overruled the appellants' motion in limine.
Plessman testified regarding the correspondence between himself and Wickenkamp about the settlement agreement. The court received and admitted into evidence, without objection, Plessman's and Wickenkamp's correspondence and the settlement documents drafted by Plessman. Because Wickenkamp did not appear to testify, the parties agreed to deem her unavailable and read parts of her deposition into the record. In her deposition, Wickenkamp verified that Luethke retained her as his attorney in this litigation, that she notified Plessman by letter that "My client will accept the offer," and that she withdrew as counsel in October 1998 after Luethke terminated her employment. Wickenkamp did not testify as to the content of her conversations with Luethke, invoking attorney-client privilege, but stated that she and Luethke had spoken during the timeframe of the letters between herself and Plessman regarding settlement negotiations.
The appellants moved for a directed verdict at the close of their evidence, arguing that the evidence demonstrated that a settlement agreement between the parties was reached and that the appellants were entitled to enforce that agreement. The district court overruled the motion. Over the appellants' objection, the court heard Luethke testify about his interactions with Wickenkamp regarding the settlement agreement. Luethke testified that although Wickenkamp originally anticipated receiving $84,000 or $64,000 for Luethke's case, she urged him to accept a settlement of $16,500 because they were not making headway with the other numbers. Luethke stated that the only time he authorized Wickenkamp to settle the case for him was when she presented him with a $64,000 offer; she, however, urged him to refuse the offer because she felt he could get more. Luethke testified that he never agreed to settle the case for $16,000—not during a meeting alone with Wickenkamp and not during a subsequent meeting at his mother's house with Wickenkamp, his mother, himself, and his uncle Norman Schmitt present.
The court received testimony from Schmitt, also over the appellants' objection, regarding the meeting with Wickenkamp and their settlement agreement discussions. Schmitt testified that at no time during Wickenkamp's representation of Luethke did Schmitt understand her to have the authority to settle Luethke's case for $16,000.
The district court's "Judgment on Defense of Settlement Agreement" concluded:
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