Thomas v. Colorado Trust Deed Funds, Inc., 8079.

Decision Date17 October 1966
Docket NumberNo. 8079.,8079.
PartiesJames THOMAS III, and Boyd Thomas, Appellants, v. COLORADO TRUST DEED FUNDS, INC., Mortgage Underwriting Corporation, Clifford McLin, Robert Swanson, Receiver for Colorado Trust Deed Funds, Inc., and Mortgage Underwriting Corporation, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

William G. Robertson, of Gray, Pfaelzer & Robertson, Los Angeles, Cal. (James E. Biava, of Gray, Pfaelzer & Robertson, Los Angeles, Cal., and Thomas K. Loughlin, of Adams & Loughlin, Denver, Colo., with him on the brief), for appellants.

Robert Swanson, Receiver Colorado Trust Deed Funds, Inc. and Mortgage Underwriting Corporation, Denver, Colo., for appellees.

Before PICKETT, HILL and SETH, Circuit Judges.

PICKETT, Circuit Judge.

This appeal involves the authority of an attorney of record to stipulate to a final disposition of a case. The trial court, holding that appellants had failed to prove that their attorney was not authorized to enter into the stipulation, denied a motion to vacate the judgment entered thereon.

In 1960 appellants, James Thomas III and his brother Boyd, were engaged in the development and sale of real property in California and desired to acquire an insurance company authorized to insure the payment of the real estate mortgages. In November, 1960, the Thomases purchased all the outstanding stock of Mortgage Insurance Company of America, a Colorado corporation with its principal place of business in Denver, Colorado, and thereby acquired ownership and control of two subsidiary Colorado corporations, Colorado Trust Deed Funds, Inc., and Mortgage Underwriting Corporation. James Thomas then became president and Boyd Thomas vice president of these corporations and designated Clifford McLin as general manager thereof.

From the date of acquisition of the corporations, securities in the nature of trust deed certificates were sold and offered for sale to the public. On April 25, 1961, the Securities and Exchange Commission brought an action against Colorado Trust Deed Funds, Inc., Mortgage Underwriting Corporation, James Thomas III, Boyd Thomas, and Clifford McLin, alleging violation of the Securities Act, 15 U.S.C. § 77q(a), (2) and (3), praying for (1) an injunction against further sale of securities, and (2) the appointment of a receiver for the corporate defendants. Shortly thereafter James Thomas and McLin, with attorney Duncan Cameron who had been engaged to represent the defendants in this matter, arranged for a conference with S.E.C. representatives to discuss the lawsuit, and pursuant to this conference, on May 2, 1961, James Thomas and attorney Cameron appeared in the District Court with the S.E.C. attorney and stipulated to the entry of an injunction forbidding further sale of securities and disbursements of corporate assets. The request for the appointment of a receiver was deferred. At this meeting James Thomas, anxious to avoid receivership, had represented that there was available secured notes valued at approximately $300,000 which could be deposited into Colorado Trust Deed Funds, Inc. as additional assets, together with a certain amount of cash. The S.E.C. expressed interest in the proposal and suggested that it be submitted in writing. Cameron accordingly prepared an offer for submission to the S.E.C. and forwarded it to James Thomas in California, but no response was forthcoming.

On May 17, 1961, McLin engaged attorney Russell Bartels specifically to assist Cameron in negotiating settlement with S.E.C. which would eliminate the need for receivership and permit the corporation to continue business. Cameron withdrew from the case, and Bartels became the attorney of record for all the defendants. After familiarizing himself with the case, Bartels submitted to the S.E.C. representative a proposal for settlement. When the S.E.C. attorney told Bartels that he did not have authority to accept the proposal, Bartels went to Washington, D. C. to confer with the S.E.C. General Counsel. A few days later the S.E.C. representative in Denver was authorized to accept the proposal after obtaining additional information.1 A stipulation was then prepared and executed by Bartels, who stated that he had "talked to Jimmy in California last night, and he said `Go ahead'." The stipulation provided that the Thomases would assign to Colorado Trust Deed Funds, Inc. secured promissory notes valued at $300,000, and $50,000 in cash. On July 13, 1961, the United States District Court entered an order designated "Final Judgment" adopting and approving the stipulation and declaring it to be in full force and effect. The S.E.C. was permitted to withdraw its request for the appointment of a receiver, the injunction was dissolved, and the funds and assets were released to the corporations.

The deposits were not made, however, and upon inquiry Bartels informed the S.E.C. that the parties were in the process of complying with the provisions of the stipulation. Bartels, at the request of McLin, went to California to assist in clearing the title to the property which was to be used as security for a bank loan necessary to comply with the stipulation. He conferred with McLin and an attorney for several corporations in which the Thomases had a controlling interest. For the first time he met James and Boyd Thomas, but so far as the record shows, the stipulation was not discussed inasmuch as Bartels apparently assumed that they were aware of it. This meeting was brief, and for the purpose of signing some corporation resolutions. Bartels' first information that all the interested parties were not fully advised of his negotiations with the S. E.C., including the stipulation, was when James Thomas came to Denver early in August. After James Thomas arrived in Denver, conferences were held and it was concluded that Bartels should not get in touch with the S.E.C. on the question of the validity of the order until after an attempt had been made to modify the requirements of the stipulation. When the S.E.C. representatives in Denver failed to give a new plan favorable consideration, Bartels and James Thomas proceeded to Washington, D. C. where modification attempts were still unsuccessful after a conference with officials there. Thereupon a motion to vacate the judgment was prepared by Bartels and signed by attorney Littell,2 alleging that the stipulation had been entered into by Bartels without the Thomas' authority.3 After hearing all the evidence, the court denied the motion, stating that it was "inconceivable" that Bartels had executed the stipulation without the...

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  • Taylor v. Perini, 73-2071
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 3, 1974
    ...affirmative proof by the party seeking to vacate it that the attorney had no right to consent to its entry. Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966). Our difficulty arises, however, from an inability to determine whether there has in fact been a consent by th......
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    ...representation”); and (ii) cases in which the attorney's actions terminate the litigation, see, e.g., Thomas v. Colo. Trust Deed Funds, Inc., 366 F.2d 136, 139–40 (10th Cir.1966) (finding that, as to one of the plaintiffs, “the record shows that he did not participate in the transactions an......
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    ...the express permission of the client. Harrop v. Western Airlines, Inc., 550 F.2d 1143 (9th Cir. 1977); Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966). Implied authority to settle a case is not recognized. Englehardt v. Bell & Howell, 299 F.2d 480 (8th Cir. Indeed, ......
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1 books & journal articles
  • Ethical Guidelines for Settlement Negotiations
    • United States
    • Colorado Bar Association Colorado Lawyer No. 34-2, February 2005
    • Invalid date
    ...agreement entered into by attorney is presumed to have been authorized by his client"); see also Thomas v. Colo., Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966); but see note supra. 54. See Miller, supra, note 14. In Miller, the court held that an attorney representing a client has a......

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