                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


Marsha Hopkins,

Defendant Below, Petitioner
                                                          FILED
                                                                                   February 11, 2013
vs) No. 12-0448 (Kanawha County 06-C-1362)                                      RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Sherry Henson,

Plaintiff Below, Respondent


                                 MEMORANDUM DECISION

       Petitioner Marsha Hopkins, by counsel Richard E. Holtzapfel and David A. Holtzapfel,
appeals the January 6, 2012 order of the Circuit Court of Kanawha County that denied her
motion to amend judgment. Respondent Sherry Henson, by counsel Harold Albertson, has filed a
response.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Respondent initiated this civil action in July of 2006, and a bench trial was scheduled for
October 6, 2009. Settlement negotiations were ongoing throughout the pendency of the
proceedings, and the October trial date was eventually removed from the circuit court’s calendar
when petitioner’s former counsel informed the court that the matter had been settled. Despite this
representation, various aspects of the case continued, and a new trial date was set for February
14, 2011. On September 28, 2010, respondent filed a motion to enforce a settlement agreement,
and the circuit court held a hearing on the same during which it granted the motion. Thereafter,
petitioner filed a motion to amend the judgment and the circuit court denied the same by order
entered on January 6, 2012.

         On appeal, petitioner alleges that the circuit court erred in granting respondent’s motion
to enforce settlement, arguing that respondent failed to present any evidence that petitioner
assented to a settlement and that the circuit court’s decision was based entirely on hearsay.
Petitioner also argues that the circumstances indicate that a settlement was never reached
because the agreement was never memorialized, certain emails prove settlement negotiations
were ongoing three months after the previously scheduled trial date, and the case activity
indicates that neither party believed a settlement was reached. Lastly, petitioner argues that the
circuit court’s decision should be reversed for public policy reasons related to the chilling effect
this ruling would have on future settlement negotiations. In response, respondent argues that the


                                                     1
­
evidence properly admitted below confirms that a settlement was reached, and the circuit court
appropriately enforced the same.

       This Court has previously held that

       “[t]he standard of review applicable to an appeal from a motion to alter or amend
       a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that
       would apply to the underlying judgment upon which the motion is based and from
       which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. American
       Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

Syl. Pt. 1, Affiliated Constr. Trades Found. v. Univ. of W.Va. Bd. of Tr., 210 W.Va. 456, 557
S.E.2d 863 (2001). Further,

       “[i]n 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 de novo review.” Syllabus point 2, Walker v. West
       Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 5, Peters v. Rivers Edge Mining, Inc., 224 W.Va. 160, 680 S.E.2d 791 (2009). Upon our
review, we find the circuit court did not err in granting respondent’s motion to enforce the
settlement agreement. Regarding petitioner’s argument that the circuit court relied entirely upon
hearsay in establishing that a settlement agreement was reached, a review of the record shows
that the circuit court based its decision on properly admitted evidence. First, the circuit court
noted that its own internal records indicated that it received a phone call from petitioner’s prior
counsel stating that the matter was settled. This does not constitute hearsay evidence and the
circuit court properly took judicial notice of the call. Further, the circuit court relied upon emails
exchanged between respondent’s counsel and an employee who worked in the office of
petitioner’s prior counsel. The emails included terms to be included in a proposed document
titled “Order of Confession of Judgment and Dismissal of Related Matters.” Importantly,
respondent’s counsel was sworn as a witness in the proceedings below and directly testified to
his participation in these conversations. As such, the Court finds no error in the circuit court
relying on information gleaned from this witness concerning the discussions he had with
petitioner’s prior counsel’s office regarding the terms of their settlement agreement.

        As to petitioner’s allegation that respondent failed to present evidence proving that
petitioner assented to a settlement, the Court finds no merit in this argument. As addressed
above, the circuit court was presented with sufficient evidence to establish that a settlement
agreement was reached, petitioner’s contradictory testimony notwithstanding. Further, the circuit
court finds no merit in petitioner’s arguments that circumstances indicate that a settlement was
never reached or that the circuit court’s decision should be reversed for public policy reasons.



                                                      2
­
       For the foregoing reasons, we find no error in the decision of the circuit court and its
order granting respondent’s motion to enforce the settlement agreement is affirmed.

                                                                                Affirmed.

ISSUED: February 11, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                  3
­
