Tonya Melton v. Smith's Pecans, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00920-COA
TONYA MELTON, CHARLES DAVID MELTON,
JR., PAULA DAWN HARRIS AND JAMES
KENDALL HARRIS
APPELLANTS
v.
SMITH’S PECANS, INC., A MISSISSIPPI
CORPORATION, ALFRED RANDOLPH SMITH,
JR.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
05/26/2009
HON. WILLIAM F. COLEMAN
HINDS COUNTY CIRCUIT COURT
JOHN R. MCNEAL JR.
J. TUCKER MITCHELL
W. SHAN THOMPSON
LATOYA TATE JETER
CIVIL - CONTRACT
DENIED PLAINTIFFS’ MOTION TO SET
ASIDE ORDER ENFORCING
SETTLEMENT; GRANTED DEFENDANTS’
MOTION FOR CITATION OF CONTEMPT
AND APPOINTMENT OF CLERK TO
EXECUTE SETTLEMENT DOCUMENTS
AFFIRMED - 02/08/2011
BEFORE MYERS, P.J., ISHEE, ROBERTS AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
In March 2009, the Hinds County Circuit Court ordered Tonya Melton, Charles David
Melton Jr., Paula Dawn Harris, and James Kendall Harris (the Meltons) to execute
documents settling their personal-injury lawsuit against Smith’s Pecans. The Meltons
refused to comply and, after Smith’s Pecans moved for contempt, filed a motion under
Mississippi Civil Procedure Rule 60(b) to set aside the enforcement order.
On
reconsideration, the circuit court weighed the Meltons’ testimony—that they neither
consented to the settlement nor authorized their attorney to accept a settlement—against
their immediate actions after they learned their attorney had settled their claims. Because the
Meltons did not raise the issue of lack of consent or authority until after the March
enforcement hearing, the circuit court found they failed to rebut the presumption that their
attorney had the apparent authority to settle with Smith’s Pecans.
¶2.
We find the circuit court did not abuse its discretion in denying the Meltons’ Rule
60(b) motion. Further, we find it did not commit manifest error in citing the Meltons for
contempt and appointing the circuit clerk to execute the settlement documents on the
Meltons’ behalf. Therefore, we affirm.
FACTS
A.
¶3.
The Settlement Negotiations
The Meltons sued Smith’s Pecans for personal injuries based on alleged chemical
exposure. The week before the scheduled trial, the attorneys for both parties reached a
settlement over the phone. Smith’s Pecans agreed to pay $80,000 in exchange for the
Meltons’ promise to execute a release and pay all their own medical expenses, including any
Medicaid and Medicare liens. On January 7, 2009,1 Smith’s Pecans’ attorney emailed the
1
All dates in this opinion refer to events occurring in 2009.
2
Meltons’ attorney, Michael Brown, to confirm the terms of the settlement and ask to whom
the settlement check should be addressed. Brown replied by e-mail the next day, January 8.
In this e-mail, Brown provided his tax identification number for the check, confirmed the
Meltons had granted him settlement authority, and notified Smith’s Pecans he was working
with the Meltons to sort out Medicaid and Medicare lien issues.
¶4.
Trial was cancelled, and on January 15, Smith’s Pecans mailed Brown an $80,000
check, an agreed order of dismissal, and a release for the Meltons to execute. But the
Meltons refused to negotiate the check or sign the release. On January 22, through an e-mail
from Brown to Smith’s Pecans’ attorneys, the Meltons voiced their concerns about the
settlement, primarily that Tonya’s ex-husband claimed he had a lien on the settlement for
Tonya’s back child support.
B.
¶5.
The March Hearing on the Motion to Enforce Settlement
Smith’s Pecans filed a motion to enforce the settlement. The circuit court heard the
motion on March 6. At the time of the enforcement hearing, Brown had a pending motion
to withdraw his representation in this matter. Nevertheless, Brown represented the Meltons
in this hearing. Although present, the Meltons did not testify at this hearing or object to
Brown’s continued representation or the arguments he made on their behalf.
¶6.
The enforcement hearing focused on the effect of Tonya’s ex-husband’s potential lien
on the enforceability of the settlement. Finding Tonya had been aware of her child-support
obligation before settling with Smith’s Pecans, the circuit court entered an order directing the
Meltons to execute a release of all claims and enter an agreed judgment of dismissal. The
circuit court entered its order on the docket on March 9, giving the Meltons fourteen days to
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comply.
C.
¶7.
The May Hearing on Parties’ Cross-Motions
Because the Meltons did not comply with the circuit court’s order within fourteen
days, on March 25, Smith’s Pecans filed a motion for contempt, asking the circuit court to
direct the circuit clerk to execute the settlement documents on their behalf, a remedy
provided under Mississippi Civil Procedure Rule 70(a). On March 18, Brown filed a motion
to withdraw based on the Meltons’ having terminated his services on March 16. The
Meltons’ new counsel responded to the contempt motion with a Rule 60(b) motion to set
aside the order enforcing settlement. The Meltons argued they should be relieved from the
order because (1) their previous attorney did not adequately advise them of the settlement;
(2) they did not consent to the terms of the settlement; and (3) they did not have the
opportunity to testify at the March enforcement hearing.
¶8.
On May 8, the circuit court heard both the contempt and Rule 60(b) motions. The
Meltons called Brown as an adverse witness, who testified the Meltons authorized him to
settle for $80,000 and that a settlement had been reached. All four Meltons testified that they
had not given settlement authority and had not received adequate advice from Brown to enter
a settlement.
¶9.
The circuit court weighed the Meltons’ testimony against their actions following the
January 8 settlement. It found the Meltons were aware of the March enforcement hearing
but failed to speak up at the hearing concerning Brown’s lack of authority to settle. Instead,
they allowed Brown to argue in their presence that the sole reason justifying not enforcing
the settlement was the potential lien by Tonya’s ex-husband on her portion of the settlement
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funds. It was only after the court entered the order enforcing settlement and Brown filed a
motion to withdraw that the Meltons first claimed they did not give Brown settlement
authority. Applying the rebuttable presumption that attorneys have the apparent authority
to settle their client’s claims, the circuit court found the Meltons failed to show Brown lacked
authority. On May 27, the circuit court entered an order denying their motion to set aside
enforcement. By separate order, also entered May 27, the circuit court cited the Meltons for
contempt and appointed the circuit clerk to execute the release and an agreed judgment of
dismissal on their behalf.
¶10.
On June 5, the Meltons filed their notice of appeal.
DISCUSSION
A.
¶11.
Orders on Review
Because the Meltons filed their notice of appeal almost ninety days after the entry of
the March 9 order enforcing the settlement, we lack jurisdiction to consider directly the
validity of this order. M.R.A.P. 4(a) (requiring the notice of appeal be filed within thirty
days after the date of the entry of the order appealed from); M.R.A.P. 2(a) (requiring
dismissal of untimely filed notices of appeal); Bank of Edwards v. Cassity Auto Sales, Inc.,
599 So. 2d 579, 582 (Miss. 1992) (“[F]ailure to file a timely appeal leaves this Court without
jurisdiction to consider the case.”). Filing a motion for relief under Rule 60(b) did not alter
the thirty-day jurisdictional requirement. Bank of Edwards, 599 So. 2d at 582 (quoting
M.R.C.P. 60(b)).
¶12.
Therefore, we limit our review to the two orders entered within thirty days prior to the
Meltons’ June 5 notice of appeal: (1) the denial of the Meltons’ Rule 60(b) motion and (2)
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the grant of Smith’s Pecans’ motion for contempt and execution of the settlement documents
under Rule 70(a), both filed on May 27. See Saint v. Quick, 24 So. 3d 395, 401 (¶20) (Miss.
Ct. App. 2009).
B.
The Denial of Rule 60(b) Motion to Set Aside
1.
¶13.
The Circuit Court’s Application of Rule 60(b)
The Meltons argue the circuit court should have provided relief from the order
enforcing settlement (a) because there was no underlying settlement agreement and (b)
because they did not have the opportunity to testify about their attorney’s lack of settlement
authority at the March enforcement hearing.
¶14.
Mississippi Rule of Civil Procedure Rule 60(b) provides relief from a final order,
“[o]n motion and upon such terms as are just,” for five enumerated reasons and a sixth
“catchall” provision—“any other reason justifying relief from the judgment.” M.R.C.P.
60(b). The Meltons did not specify which subsection(s) applied to their motion for relief.
Applying the Meltons’ claims to the language of Rule 60(b), we find only subsection six, the
catchall, provides a potential avenue of relief.2
¶15.
In Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984), the Mississippi
2
The Meltons do not argue: under subsection (1), Smith’s Pecans, the adverse party,
made any misrepresentations or committed fraud; under subsection (2), the order was the
result of accident or mistake; or under subsection (5), the judgment has been satisfied.
Although they argue they were denied the opportunity to present evidence at the March
enforcement hearing, they do not argue, under subsection (3), this evidence was not
discoverable at the time of the hearing or within ten days of the entry of the enforcement
order. Finally, they do not argue, under subsection (4), the order itself is void. Instead, they
argue the order is erroneous because the underlying settlement agreement is void. M.R.C.P
60(b)(1)-(5).
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Supreme Court announced the standard for trial courts when considering a motion filed under
Mississippi Civil Procedure Rule 60(b):
When ruling on such motions a balance must be struck between granting a
litigant a hearing on the merits with the need and desire to achieve finality in
litigation. Further, Rule 60(b) motions should be denied where they are
merely an attempt to relitigate the case. . . . Rule 60(b) provides for
extraordinary relief which may be granted only upon an adequate showing of
exceptional circumstances, and that neither ignorance nor carelessness on the
part of an attorney will provide grounds for relief. Additionally, it has been
said that a party is not entitled to relief merely because he is unhappy with the
judgment, but he must make some showing that he was justified in failing to
avoid mistake or inadvertence[.] . . . [R]elief from a judgment is not to be
granted under Rule 60(b) simply because its entry may have resulted from
incompetence or ignorance on the part of an attorney employed by the party
seeking relief.
(Internal citations and quotations omitted). Applying this standard, the circuit court found
no extraordinary circumstances justifying setting aside its previous order.
¶16.
Instead, the circuit court found Brown, based on his representation of the Meltons
throughout the litigation, had the apparent authority to enter into a binding settlement.
Terrain Enters., Inc. v. W. Cas. & Sur. Co., 774 F.2d 1320, 1322 (5th Cir. 1985) (applying
Mississippi law); Parmley v. 84 Lumber Co., 911 So. 2d 569, 573 (¶19) (Miss. Ct. App.
2005). He also found the Meltons had failed to meet their burden to show Brown actually
lacked authority. Terrain, 774 F.2d at 1322. Although they testified they did not give Brown
authority to settle, the circuit judge found their actions during and after the settlement
negotiations contradicted their claims. The evidence showed the Meltons were aware of the
settlement soon after Brown accepted it. They let two weeks pass without notifying Smith’s
Pecans that they did not consent to the settlement. When presented the check and settlement
documents, they refused to execute them, not because of Brown’s lack of authority, but
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because they learned Tonya’s ex-husband claimed he was entitled to a portion of the
settlement. The circuit judge found these actions supporting Brown’s authority more
persuasive than the Meltons’ subsequent testimony.
¶17.
The circuit court was also unpersuaded by their argument that they were denied the
opportunity to testify at the enforcement hearing. The circuit court noted the Meltons were
present at the hearing, were aware that Brown was still representing them (despite his
pending motion to withdraw), and were apparently satisfied with the sole argument for not
enforcing the settlement that Brown presented—the potential lien by Tonya’s ex-husband,
which the circuit court found to be irrelevant.
2.
¶18.
Our Review
“[A]n appeal from denial of [a Rule 60(b)] motion brings up for review only the order
of denial itself and not the underlying judgment.” Overbey v. Murray, 569 So. 2d 303, 305
(Miss. 1990) (citations omitted). When reviewing a grant or denial of a Rule 60(b) motion,
our review is limited. Stringfellow, 451 So. 2d at 221. “[T]he only question asked on appeal
is whether the trial court’s ruling on such a motion amounts to an abuse of discretion.”
Accredited Sur. & Cas. Co. v. Bolles, 535 So. 2d 56, 58 (Miss. 1988) (citing Stringfellow,
451 So. 2d at 220). Given this limited review, we find the circuit court did not abuse its
discretion.
a.
¶19.
Apparent Authority to Settle
The underlying question of whether a settlement was reached, based on a meeting of
the minds between the parties and apparent authority by their attorneys, is a question of fact.
Northrup Grumman Ship Sys., Inc. v. Ministry of Def. of the Republic of Venez., 575 F.3d
8
491, 499 (5th Cir. 2009) (The boundaries of an attorney’s agency authority is a question of
fact, not law.); Vaughn v. Rettig, 912 So. 2d 795, 799 (¶21) (Miss. 2005) (citations omitted)
(finding whether there is a meeting of the minds is an evidentiary question); Anderson v.
Kimbrough, 741 So. 2d 1041, 1045 (¶12) (Miss. Ct. App. 1999) (“The existence of a contract
and its terms are questions of fact to be resolved by the fact-finder, whether a jury or a judge
in a bench-trial.”). On reconsideration, the circuit court found the Meltons’ testimony failed
to rebut the presumption their attorney had the apparent authority to enter into a binding
settlement. See Parmley, 911 So. 2d at 573 (¶19) (finding evidence of offer and acceptance
supported decision that attorney exercised apparent authority to enter settlement).
¶20.
The circuit court focused on the Meltons’ actions leading up to and after the formation
of the settlement agreement and determined Brown had apparent authority to act. This was
a proper application of Mississippi law based upon apparent authority in agency
relationships. E.g., Eaton v. Porter, 645 So. 2d 1323, 1325 (Miss. 1994) (looking to conduct
of the principal to determine that apparent authority existed). Because the circuit court’s
decision is supported by substantial evidence and the appropriate law, we find the circuit
court did not abuse its discretion in refusing to set aside its previous decision that Brown
entered into a settlement binding on the Meltons.
b.
¶21.
The Meltons’ Testimony
The Meltons argue the denial of an opportunity to testify at the March enforcement
hearing was an alternative reason justifying setting aside the enforcement order. The circuit
court disagreed. It found the Meltons were present at the March hearing and could have
testified. Further, the circuit court allowed the Meltons to testify at the May reconsideration
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hearing and weighed their testimony in its decision to deny their requested relief.
¶22.
On appeal, the Meltons argue Brown’s decision not to have them testify at the March
hearing is evidence of Brown’s overall incompetence, which should prevent the settlement
being enforced. But Brown’s alleged incompetence cannot be a basis for Rule 60(b) relief.
Relief from an order will not be granted merely because “its entry may have resulted from
incompetence or ignorance on the part of an attorney employed by the party seeking relief.”
Stringfellow, 451 So. 2d at 221 (finding “neither ignorance nor carelessness on the part of
an attorney will provide grounds for relief”). The circuit court considered the Meltons’
testimony but concluded their contentions did not justify setting aside its previous decision
that the Meltons had settled with Smith’s Pecans. Accordingly, we find the circuit court did
not abuse its discretion by denying them Rule 60(b) relief on this ground.
C.
¶23.
The Citation for Contempt and Appointment of the Circuit Clerk to
Execute the Settlement Documents
Although the Meltons specifically designated the contempt order in their notice of
appeal, they failed to cite any authority in their brief for why the finding of contempt or the
appointment under Rule 70(a) was improper. “[T]he failure to cite authority in support of
an argument eliminates our obligation to review the issue.” Dampier v. State, 973 So. 2d
221, 228 (¶20) (Miss. 2008). Procedural bar notwithstanding, we note that by implication,
the Meltons argue the citation of contempt and appointment under Rule 70(a) to execute the
settlement documents were improper because the underlying order enforcing settlement was
erroneous. But the order enforcing settlement is not at issue in this appeal. Further, the
failure to comply with a court’s order is not excused even by a later determination that the
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order was erroneous. Corporate Mgmt, Inc. v. Greene County, 23 So. 3d 454, 469 (¶33)
(Miss. 2009). Unless the order is void ab initio, “one bound by it must either comply or gain
relief from an appropriate court on the pain of contempt.” Id. (quoting Stacy v. Ross, 798 So.
2d 1275, 1283 (¶34) (Miss. 2001)).
¶24.
Because the primary purpose of the contempt order was to enforce compliance with
a previous order, the contempt is civil, and we review for manifest error. Corporate Mgmt.,
23 So. 3d at 466 (¶33) (distinguishing civil contempt from criminal contempt). “Regarding
a determination of contempt, a trial court due to its temporal and physical proximity to the
parties ‘is infinitely more competent to decide the matter.’” Id. at 466 (¶32) (quoting R.K.
v. J.K., 946 So. 2d 764, 777 (¶39) (Miss. 2007)).
¶25.
The order enforcing settlement directed the Meltons to execute the settlement
documents within fourteen days. During those fourteen days, the Meltons did not move the
court for a stay or additional time to comply, did not file a notice of appeal, and did not file
a Rule 60(b) motion to set aside the order. Only after Smith’s Pecans moved for citation for
contempt did the Meltons respond with a Rule 60(b) motion. Therefore, we find no manifest
error in citing the Meltons for contempt.
¶26.
We found no Mississippi cases addressing the application of Rule 70(a). But based
on a plain reading of the rule, we find no error in granting Smith’s Pecans’ request that
someone be appointed to execute the settlement documents. Rule 70(a) provides:
If a judgment directs a party . . . to perform any other specific act and the party
fails to comply within the time specified, the court may direct the act to be
done at the cost of the disobedient party by some other person appointed by the
court and the act when so done has like effect as if done by the party.
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M.R.C.P. 70(a). The settlement-enforcement order directed the Meltons to perform a specific
act (execute the settlement documents) within a specific time period (fourteen days). And
the record clearly reflects the Meltons did not comply with this order. Therefore, we find the
circuit court properly exercised its discretion under Rule 70(a) to appoint the circuit clerk to
execute the settlement documents.
CONCLUSION
¶27.
Relief under Rule 60(b) is an extraordinary remedy limited to exceptional
circumstances. Here, the circuit court found no exceptional circumstances justified setting
aside the order enforcing settlement. Instead, it found the evidence the Meltons presented
to support their Rule 60(b) motion failed to rebut the presumption their attorney had the
authority to settle their claims. Finding the circuit court did not abuse its discretion in
denying the Meltons’ motion, we affirm the order denying the Meltons’ motion to set aside
the order enforcing settlement. Further finding the circuit court did not abuse its discretion
in granting Smith’s Pecans’ motion, we affirm the order citing the Meltons for contempt and
appointing the circuit clerk to execute the settlement documents.
¶28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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