Messer v. Huntington Anesthesia Group, Inc., 33663.

• Decision Date: 26 June 2008
• Docket Number: No. 33663.,33663.
• Citation: 664 S.E.2d 751
• Court: West Virginia Supreme Court
• Parties: Theresa D. MESSER, Plaintiff Below, Appellant v. HUNTINGTON ANESTHESIA GROUP, INC.; Dr. Farouk Abadir; Dr. Hosny S. Gabriel; Dr. Mark Newfeld; Dr. Ricardo Ramos; Dr. Alfredo Rivas; Dr. D. Grant Shy; Dr. Stanislav Striz; and Dr. Michael Vega, Defendants Below, Appellees.

664 S.E.2d 751

Theresa D. MESSER, Plaintiff Below, Appellant v. HUNTINGTON ANESTHESIA GROUP, INC.; Dr. Farouk Abadir; Dr. Hosny S. Gabriel; Dr. Mark Newfeld; Dr. Ricardo Ramos; Dr. Alfredo Rivas; Dr. D. Grant Shy; Dr. Stanislav Striz; and Dr. Michael Vega, Defendants Below, Appellees.

No. 33663.

Supreme Court of Appeals of West Virginia.

Submitted March 12, 2008.

Decided June 26, 2008.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

2. "Generally, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

3. "One who by his acts or conduct has permitted another to act apparently or ostensibly as his agent, to the injury of a third person who has dealt with the apparent or ostensible agent in good faith and in the exercise of reasonable prudence, is estopped to deny the agency relationship." Syl. Pt. 1, General Electric Credit Corporation v. Fields, 148 W.Va. 176, 133 S.E.2d 780 (1963).

4. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as `costs' . . . when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

Walt Auvil, Rusen & Auvil, PLLC, Parkersburg, for Appellant.

William D. Levine, Huntington, for Appellees, Huntington Anesthesia Group, Inc.; Dr. Farouk Abadir; Dr. Hosny S. Gabriel; Dr. Alfredo Rivas; Dr. Ricardo Ramos; and Dr. Michael Vega.

Thomas E. Scarr, Michael E. Estep, Jenkins Fenstermaker, PLLC, Huntington, for Appellees, Dr. Mark Newfeld; Dr. D. Grant Shy; and Dr. Stanislav Striz.

PER CURIAM:

This case is before us on appeal for a second time. In the first appeal (hereinafter "Messer I"),¹ we reversed the dismissal by the lower court of Theresa D. Messer's discrimination suit based on handicap. Ms. Messer (hereinafter "Appellant") now appeals from the January 11, 2007, order of the Circuit Court of Cabell County granting summary judgment to the defendants below. The defendants named in Appellant's suit are her previous employer, Huntington Anesthesia Group, Inc. (hereinafter "HAGI"), and the individual shareholder/physicians of HAGI, namely, Dr. Farouk Abadir, Dr. Hosny Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr. Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz, and Dr. Michael Vega.²

In the present appeal, Appellant asserts three errors which occurred upon remand: the first regards the refusal of the lower court to enforce a settlement agreement she alleges was reached after the case was returned to the lower court; the second concerns the application of our holding in Messer I; and the third involves ex parte communications. We will limit our discussion in this case to the sole issue of the settlement agreement because our review of the record, briefs and arguments of counsel and the relevant law reveals that the court-annexed mediation resulted in a valid and enforceable settlement agreement. Therefore, the summary judgment order of the lower court is vacated and the case is remanded for entry of an order consistent with this opinion.

I. Factual and Procedural Background

A full recitation of the facts of the underlying suit was set forth in Messer I, and we need only repeat here those facts which provide context to the matters under discussion. To further aid in understanding the facts in light of the mediation, we note that the individual doctors named in Appellant's suit were shareholders in HAGI at the time of her employ and when her suit was filed. However, three of the doctors, Dr. Newfeld, Dr. Shy and Dr. Striz, severed their association with the corporation in 2004 with terms of that separation reputedly part of a settlement agreement that was reached among the doctors in September 2004.³ Even though the three doctors retained separate counsel for advice regarding their interests under the 2004 settlement agreement, there is no question that the three doctors were represented in the instant case by the same legal counsel as the other named defendants.

Appellant filed suit in 2002 against HAGI and the eight doctors who were then shareholders in HAGI. Appellant, who had been employed as a certified registered nurse anesthetist by HAGI for over ten years, claimed that her employer failed to reasonably accommodate her physical limitations resulting from a back injury. The corporate and individual defendants named in Appellant's suit were represented by the same attorney, Mike Dellinger.

Upon remand of this case after our decision in Messer I, a status conference was held on April 13, 2006, at which the parties agreed to submit to court-annexed mediation.⁴ Although the facts surrounding the mediation are largely disputed by the parties, no one contests that the parties mutually selected the mediator and the time and place for the May 18, 2006, mediation. The parties attending the mediation included Appellant, her attorney, Dr. Gabriel,⁵ Dr. Ramos, Mr. Dellinger, and his co-counsel.⁶ At the conclusion of the mediation, the attending parties agreed to the proposal of the mediator which was reduced to a handwritten document. The handwritten agreement states that "[t]he parties agree that this handwritten document is a binding and enforceable contract to be replaced with a typewritten document and a full and complete release to be prepared by counsel for Defendants." The last two provisions in the handwritten agreement state as follows:

7) The Defendants have not been able to reach all physicians partners that are party Defendants and this agreement will be held in abeyance for 3 weeks⁷ pending unanimous approval of all physicians partners. If there is not approval by all within 3 weeks, there is no settlement and the matter may proceed to trial as if no settlement was reached.

8) With unanimous consent of the partners to the settlement, the amount specified in paragraph 1 will be paid by June 30th, 2006.⁸

(Strike-outs in original; footnote added.). The document was signed by Appellant, Appellant's counsel, Dr. Gabriel and Mr. Dellinger.

It was established at the August 21 hearing that Mr. Dellinger sent a letter to Dr. Abadir, Dr. Vega and Dr. Rivas on June 2, 2006, relating that Mr. Dellinger had talked with the attorney for Drs. Newfeld, Shy and Striz, as well as another attorney some of the remaining doctors had asked to informally look at the settlement agreement.⁹ According to Mr. Dellinger's testimony, the letter outlined the issues facing HAGI and the doctors, and the need to communicate with Appellant about whether or not settlement was acceptable. Mr. Delligner said Dr. Ramos informed him by phone on June 5, 2006, that the letter had been discussed at a meeting he arranged with Drs. Abadir, Vega and Rivas. Mr. Dellinger learned during this phone call that the discussion at the meeting was heated at times, mostly due to Dr. Abadir not wanting to settle. Mr. Dellinger also testified he was told by Dr. Ramos that "ultimately all of the individuals agreed to the settlement and that I was authorized to communicate that to the other side."

Dr. Gabriel did not attend the June 3 meeting because he was out of the country on vacation, so following the meeting Dr. Ramos e-mailed Dr. Gabriel the following message:

Hosney

Today [S]aturday I meet with [Drs]. Rivas, Michael [Vega], Farouk [Abadir]. I discuss the problem with the [M]esser case and all ramifications of it. Michael said he has nothing to do with it because he was not a partner and that he signed something he . . . [is] not liable for anything, Farouk says he is not paying nothing, Rivas says he will go with what ever we decide. I am going to call our attorney on [M]onday and ask to see if we can delay this until the 16 which is [F]riday and see what happens. Farouk is saying let[']s go to court and fight but he doesn't knoew [sic] the ramification of an appeal etc etc. If you read this e-mail, write me back. Richard [Ramos].

Dr. Gabriel replied to Dr. Ramos by return e-mail on June 4, 2006, by stating:

I agree with you in settling the case and please let Rivas ask the bank if we can borrow $100,000 and let [L]inda call [M]r. [John] [P]erry [accountant] to ask him about the advantage of getting the money from the bank or to pay it from our pockets which ever advantage for us. Please don[']t listen to [F]arouk, he will pay he likes it or not. Now I have the internet connected and I will be in touch with you. Than[k]s. Hosney

Dr. Ramos' rendition of the information exchanged during the June 5 phone call is significantly different from the testimony of Mr. Dellinger. Dr. Ramos testified that he told Mr. Dellinger during that phone conversation that "we would like to settle and get it over with. We still have Dr. Abadir not agreeing to the settlement." Dr. Ramos went on to testify that "I told him [Mr. Dellinger] Dr. Abadir did not agree. We had a heated discussion on Saturday, but Hosny was going to work on him." When asked if he told Mr. Dellinger that Dr. Gabriel was going to try to get Dr. Abadir to change his mind, Dr. Ramos said he could not remember. He attributed his memory problems with his June 11, 2006, hospitalization for cardiac bypass surgery on June 15.

On June 6, 2006, Mr....