                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      SCHULZE V. RASMUSSEN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                        AMY SCHULZE AND PAUL FLEUREN, APPELLANTS,
                                                 V.

                                MATT RASMUSSEN ET AL., APPELLEES.


                               Filed August 25, 2020.   No. A-19-901.


       Appeal from the District Court for Washington County: JOHN E. SAMSON, Judge. Affirmed.
       Amy Schulze, pro se.
       Paul Fleuren, pro se.
      Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for appellees Matt Rasmussen and
Bear Homes, P.C.
       Andrew M. Hollingsead and Michael J. Matukewicz, of Liakos & Matukewicz, L.L.C., for
appellee NP Dodge Real Estate Sales, Inc.
        John D. Stalnaker, of Stalnaker, Becker & Buresh, P.C., for appellee Old Republic National
Title Insurance Company.
       Thomas J. Anderson, P.C., L.L.O., for appellee Midwest Title, Inc.



       MOORE, Chief Judge, and BISHOP and WELCH, Judges.
       BISHOP, Judge.
                                         INTRODUCTION
        In 2017, Amy Schulze and Paul Fleuren sued several defendants in the Washington County
District Court related to problems with their home, which they had purchased in 2016. For most




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of the pretrial proceedings, Schulze and Fleuren were represented by two different attorneys during
nonoverlapping periods of time. Schulze and Fleuren were present and represented by counsel
when a settlement agreement between all parties was read into the record during a pretrial
conference in July 2019. Thereafter, Schulze and Fleuren, as pro se litigants, disputed the
enforceability of the settlement agreement. On August 21, the district court ordered that the
settlement agreement was an enforceable contract, and therefore all claims by all parties in this
action were dismissed with prejudice in accordance with the settlement agreement. Schulze and
Fleuren, pro se, appeal the judgment. We affirm.
                                        BACKGROUND
                     PARTIES INVOLVED WITH REAL ESTATE TRANSACTION
         The underlying dispute in this action revolves around a log cabin home in Arlington,
Nebraska. Bear Homes, P.C. (Bear Homes), had owned that property since March 2015. Matt
Rasmussen was the president of Bear Homes. He was also a Nebraska real estate licensee affiliated
with NP Dodge Real Estate Sales, Inc. (NP Dodge), a real estate brokerage company, pursuant to
the terms of an “Independent Contractor Agreement.” On March 23, 2016, NP Dodge agreed to
provide licensed real estate services on behalf of Bear Homes to find a purchaser for the Arlington
home. That same day, Schulze and Fleuren executed an agreement to purchase it. Around March
28, title insurance underwriter Old Republic National Title Insurance Company (Old Republic),
through its agent Midwest Title, Inc. (Midwest Title), issued a title insurance commitment to
Schulze and Fleuren in connection with the purchase. On May 9, Rasmussen, in his capacity as
the president of Bear Homes, conveyed the Arlington home by corporate warranty deed to Schulze
and Fleuren. On May 25, Old Republic, through Midwest Title, issued a title insurance policy to
Schulze and Fleuren for their new home.
                                 INITIAL PRETRIAL PROCEEDINGS
        On May 10, 2017, Schulze and Fleuren, through counsel, filed a complaint against
Rasmussen, Bear Homes, “NP Dodge Realty Inc.” (not NP Dodge), Old Republic, and Midwest
Title regarding their Arlington home. On June 20, Schulze and Fleuren filed an amended complaint
against Rasmussen, Bear Homes, NP Dodge, Old Republic, and Midwest Title. Schulze and
Fleuren asserted that Rasmussen and Bear Homes had known that the property had code violations
and nonconforming uses. Allegedly, Rasmussen and Bear Homes had “flipp[ed]” the home
without permits and in a defective manner but did not disclose the defective work to Schulze and
Fleuren. Schulze and Fleuren asserted there were problems related to the basement, septic system,
exterior steps, retaining wall, water leakage, and generally the interior and exterior work. The
amended complaint set forth claims of fraud/material misrepresentation, fraudulent concealment,
negligent misrepresentation, and violation of Neb. Rev. Stat. § 76-2,120 (Cum. Supp. 2016)
(governing seller real property condition disclosure statements) against Rasmussen, Bear Homes,
and NP Dodge; negligence and breach of contract claims against Bear Homes; and claims of breach
of contract (bad faith denial of insurance coverage) and negligence (failure to discover code
violations) against Old Republic and Midwest Title. Schulze and Fleuren sought $147,925 in
damages against Rasmussen, Bear Homes, and/or NP Dodge, as well as $69,060 in damages



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against Bear Homes and/or Midwest Title and Old Republic. They sought an award of attorney
fees and costs under each claim.
         The defendants denied the material allegations brought against them, asserted various
affirmative defenses, and asked that the complaint and/or amended complaint be dismissed with
prejudice. Old Republic asserted a counterclaim against Schulze and Fleuren for a declaratory
judgment as to the scope of their insurance coverage and duty to cooperate with a related
investigation. Old Republic and Midwest Title moved for summary judgment, in whole or in part,
as to one or both claims brought against them. In January 2018, the district court dismissed with
prejudice the negligence claim against the title companies as it was barred by the economic loss
doctrine. The breach of contract claim against the title companies was dismissed with prejudice to
the extent that it was based on the title commitment, which had been replaced by the title insurance
policy.
         On October 21, 2018, Schulze and Fleuren filed a second amended complaint, which was
substantially similar to its prior complaint. Additional allegations were that they discovered certain
defects as a result of a whole house inspection and that Rasmussen and Bear Homes had agreed to
repair and remedy those defects but “[a]ny repair work was defective and the defects were not
remedied.” The same claims as pled before were brought against the same defendant or defendants,
except the breach of contract claim against the title companies was based on the title insurance
policy, not the commitment. The defendants denied the material allegations against them, alleged
affirmative defenses, and asked that the second amended complaint be dismissed with prejudice.
Thereafter, the defendants filed motions for summary judgment and/or partial summary judgment
as to various claims. Midwest Title challenged a procedural aspect of the case.
         On February 26, 2019, attorney Douglas W. Ruge filed a motion for leave to withdraw as
counsel for Schulze and Fleuren on grounds of “irreconcilable differences” with them regarding
representation and a “breach of agreement with counsel.” On February 27, the district court
dismissed with prejudice the claim under § 76-2,120 due to finding that this lawsuit was not filed
within the applicable 1-year statute of limitations, which was found to have not been tolled.
Further, any claims that NP Dodge was vicariously liable for common law duties (i.e.,
fraud/material misrepresentation, fraudulent concealment, or negligent misrepresentation) were
dismissed with prejudice; rather, NP Dodge could only be vicariously liable if Rasmussen, as
licensee, breached a statutory duty he owed to Schulze and Fleuren. On March 7, Ruge was
allowed to withdraw as counsel for Schulze and Fleuren. Ruge then filed a notice of an attorney
lien in the amount of $37,406 for attorney fees and costs out of the course of such representation.
         On April 24, 2019, the district court again dismissed with prejudice the negligence claim
against the title companies. Midwest Title was denied summary judgment in its favor as to the
breach of contract claim against it. Summary judgment in Old Republic’s favor on the same claim
was granted in part and denied in part with respect to potential liability in connection with types
of covered risk under the title insurance policy. Certain defendants moved to clarify and/or alter
or amend summary judgment rulings entered in 2019. Later-filed orders clarified and/or declined
to alter or amend prior rulings.




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                        PRETRIAL PROCEEDINGS RELATED TO SETTLEMENT
        On May 16, 2019, attorney John H. Sohl entered his appearance as counsel for Schulze and
Fleuren. On July 8, Schulze and Fleuren filed a motion to continue the pretrial conference
scheduled for July 16 and related deadlines. They alleged that Ruge had not given them the
“information needed,” a copy of their case file, despite Schulze’s repeated requests. On July 11,
by the request of Schulze and Fleuren, a subpoena duces tecum was issued to command Ruge to
appear in court on July 16 with the unprivileged parts of their case file. The pretrial conference
remained set for July 16.
        All parties’ counsel appeared for the pretrial conference on July 16, 2019. Schulze and
Fleuren were personally present as well. The district court stated it had been notified that a
settlement had been reached. Counsel for NP Dodge indicated that the parties had agreed to have
the terms of the settlement read into the record. NP Dodge’s counsel stated that the parties would
enter into a written settlement agreement providing the following:
                First, the defendants [NP Dodge], [Old Republic], [Midwest Title], [Rasmussen]
        and [Bear Homes], shall collectively pay $50,000 as settlement proceeds. Such proceeds
        shall be deposited in my firm’s trust account . . . and from that trust account a check in the
        amount of $50,000 will be issued and delivered to plaintiffs’ counsel [(Sohl)]. That check
        will be made payable to [Fleuren] and [Schulze], and [Ruge, Schulze’s and Fleuren’s
        former counsel].
                Second, upon -- Excuse me. Second, the parties shall release one another of all
        claims arising from or relating to [Schulze’s and Fleuren’s] purchase of the [Arlington]
        residence . . . , including the title conditions relating to the subject residence alleged by
        [Schulze and Fleuren] in this action.
                Third, all claims alleged in this action shall be dismissed with prejudice, with each
        party to bear their own costs.

Upon questioning by the district court, NP Dodge’s counsel and Sohl (on behalf of Schulze and
Fleuren) indicated that they agreed to payment of the settlement check and/or circulation of the
releases by August 5.
        The district court received confirmation from counsel for Old Republic, Midwest Title, and
Rasmussen and Bear Homes that the foregoing was the agreement as they understood it to be.
Thereafter, the following colloquy took place.
               THE COURT: [Sohl], is that your understanding of the agreement?
               [Sohl]: It is, Your Honor.
               And, if I may, is that your understanding, [Schulze]?
               [Schulze]: Yes.
               [Sohl]: Okay. By the way, there is a power of attorney which has been executed by
        [Fleuren] to [Schulze], so that’s why I’m not talking to or asking [Fleuren].
               THE COURT: Sure.
               [Fleuren], you’re present today and you heard all of this, is that correct, sir?
               [Fleuren]: Yeah.




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              THE COURT: Okay.
              [Fleuren]: Yes, sir.
              THE COURT: And, [Schulze], you’ve heard all of this?
              [Schulze]: Yes.
              THE COURT: Okay. And you’ve had an opportunity to consult with [Sohl]
       obviously about this?
              [Schulze]: Yes.
              THE COURT: Very good. All right. And that sounds like the agreement is accepted
       by everybody and we have a deadline of August 5th, 2019, to get that accomplished.

The district court accepted the settlement agreement and stated it would cancel the jury trial that
had been set for August 19.
         According to NP Dodge’s counsel, on July 17, 2019, Schulze telephoned his office and
told his assistant that the settlement agreement was “‘off’” and that the defendants were not to
“‘bother’” preparing the check for payment of the settlement proceeds. She informed that she and
Fleuren had terminated Sohl as their attorney. Per Midwest Title’s counsel, Schulze telephoned
his office the same day and made similar statements to him. Also on July 17, Fleuren revoked a
document that had originally been signed on July 15 making Schulze his power of attorney to take
all action necessary concerning this case.
         On July 18, 2019, Sohl filed a motion to withdraw. Among other things, Sohl asserted that
during a telephone call on the morning of July 17, he had a disagreement with Schulze during
which she asked what she should do to which Sohl said, “‘Get someone else.’” Schulze replied,
“‘Okay.’” Sohl alleged that he had a subsequent conversation with Schulze who wished to pursue
a course of conduct that he felt was “repugnant” and over which they had a “fundamental
disagreement.” Sohl was “now informed” that the “steps” he took on Schulze’s and Fleuren’s
behalf during the July 16 pretrial conference were not what they desired. That same day, the district
court entered a journal entry regarding the July 16 pretrial conference. It noted that a settlement
agreement had been read into the record and that all counsel and both Schulze and Fleuren
acknowledged its terms. The cash settlement was to be paid to NP Dodge’s counsel’s trust account
“as soon as possible” with distribution of a check from NP Dodge’s counsel’s trust account.
Releases and a motion to dismiss were to be exchanged on or before August 5. The district court
cancelled the August 19 jury trial “due to complete settlement of issues.”
         On July 25, 2019, Schulze and Fleuren, pro se, filed a motion to allow Sohl’s withdrawal.
They alleged that Sohl refused to represent them in the manner for which he was retained. They
claimed to have been trying to reach a settlement for several weeks while also trying to retrieve
their case file from Ruge. They had not obtained the file. They disputed that they had reached a
settlement with the defendants and stated they would not accept the “proposed offer” that “[Sohl]
had wanted to settle for.” On July 26, the district court granted Sohl’s motion to withdraw.
         On August 5, 2019, the defendants filed a joint motion to enforce the settlement agreement
“recited and accepted by the parties on the record” during the July 16 pretrial conference. The
record shows that, on August 5, Old Republic’s counsel emailed a written settlement document to




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Schulze and Fleuren for their review and signature. Schulze and Fleuren did not respond to the
email.
        On August 19, 2019, Schulze and Fleuren, pro se, filed a motion under which they wished
to “declin[e] the offer for settlement.” They alleged that during the pretrial conference Sohl
“decided” to settle but had failed to “set the stipulations that were to be entered” as agreed upon.
Sohl “eagerly rushed” through the hearing and did not address the “issues” that he told them he
would address. Schulze and Fleuren claimed they were “not ready” to settle at that time and were
still waiting to recover the case file from Ruge so as to “see all documents to prepare a settlement.”
They believed that $50,000 was not a sufficient settlement amount. They also alleged that they
were “not involved in the settlement process” and that it was “done behind close[d] doors”
resulting in an offer that was “not in good faith.” They contended that the defendants’ main concern
was to ensure that Ruge would be paid his fees.
        On August 20, 2019, a hearing took place on the motions regarding the settlement. All
counsel for the defendants were present. Schulze and Fleuren appeared pro se. Over no objection
from Schulze and Fleuren, the following exhibits were received into evidence in support of the
defendants’ motion to enforce the settlement agreement: the bill of exceptions from the July 16
pretrial conference; affidavits by counsel for NP Dodge, Old Republic, and Midwest Title; and a
copy of the settlement check. Over denied relevancy objections, the following exhibits offered by
Schulze and Fleuren were received into evidence: their title insurance policy for their home and
correspondence regarding their insurance claim from 2016, as well as deeds related to their home;
a 2003 filing with the Washington County Register of Deeds related to their home; and a copy of
a May 9, 2016, check from Midwest Title to NP Dodge.
        After the receipt of evidence, Schulze and Fleuren each argued in support of their request
to not be bound by the settlement agreement. Generally, they reiterated arguments set forth in their
August 19, 2019, motion, including that they were not ready to settle on July 16, that the settlement
agreement did not include “stipulations” they wanted in place, and that $50,000 was not an
adequate settlement amount. Also, Schulze disputed that Sohl had “full authorization” to enter the
settlement on her and Fleuren’s behalf. During the hearing, NP Dodge’s counsel hand delivered
the actual settlement check to Schulze and Fleuren. The settlement check, in the amount of
$50,000, was made payable to Schulze, Fleuren, and Ruge from NP Dodge’s counsel’s firm’s trust
account; it was dated August 5, 2019. At the end of the hearing, the district court indicated on the
record that Schulze and Fleuren “walked away and left the $50,000 check on [counsel’s] table.”
        On August 21, 2019, the district court entered an order granting the motion to enforce the
settlement agreement. It found that the settlement agreement was an enforceable contract and that
the defendants had performed all of their obligations under it, including the delivery of the
settlement funds as agreed upon. Each defendant was therefore released of all claims possessed by
Schulze and/or Fleuren arising from or relating to their purchase of the Arlington home. All claims
by all parties in this action were dismissed with prejudice, with each party to bear their own costs.
        On August 29, 2019, NP Dodge’s counsel filed an affidavit, alleging that the settlement
check had been mailed to Schulze’s and Fleuren’s home address on August 21 but that, on August
28, it was returned by mail to NP Dodge’s counsel’s office.
        Schulze and Fleuren, pro se, filed a joint notice of appeal.



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                                   ASSIGNMENTS OF ERROR
        The replacement brief filed by Schulze and Fleuren, pro se, fails to comply with appellate
court rules. Required brief sections are incorrectly ordered, improperly merged, or nonexistent in
their brief. See Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014) (brief of appellant must contain
specific sections, under appropriate headings, in order indicated by subsections to § 2-109(D)(1)).
        Although not properly placed in the brief, their brief has a section titled “ASIGNMENT
[sic] OF ERROR AND ARGUMENT”; we set forth a portion of that section verbatim, including
any typographical and grammatical errors:
                Did the District Court Judge apply the standard of review required to, sustain the
        Motion to Enforce Settlement Agreement, dismissing the Trial By Jury before the Written
        settlement had been filed with the District Court Clerk and verifying the delivery to the
        Appellants by August 5,2019, before sustaining the defendants Motion and dismissing the
        case with prejudice on August 20,2019?
                No. . . . .

Brief for appellants at 8-9. We understand the apparent sole assigned error as claiming that the
district court erred by sustaining the defendants’ motion to enforce the settlement agreement and
dismissing all claims by all parties in this case with prejudice. The rest of the section titled
“ASIGNMENT [sic] OF ERROR AND ARGUMENT” and a section immediately following titled
“ASSIGNMENT OF ERRORS ARGUMENT” are dedicated to generally complaining about the
district court’s August 21 order, which enforced the settlement agreement and dismissed all claims
with prejudice. Id. Thereafter, the brief has a heading entitled “STATEMENT OF FACTS,” and
any arguments made therein will not be addressed unless they specifically relate to the district
court’s order enforcing the settlement agreement and dismissing the case. Id. at 10. We therefore
address only that assigned error.
         As a matter of completeness, we note that Schulze and Fleuren attempt to assign an error
or errors in their reply brief. However, errors not assigned in an appellant’s initial brief are waived
and may not be asserted for the first time in a reply brief. See U.S. Pipeline v. Northern Natural
Gas Co., 303 Neb. 444, 930 N.W.2d 460 (2019). The purpose of an appellant’s reply brief is to
respond to the arguments the appellee has advanced against the errors assigned in the appellant’s
initial brief. Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014). Thus, our review is
limited as previously stated.
                                    STANDARD OF REVIEW
        A settlement agreement is subject to the general principles of contract law. Strategic Staff
Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230 (2000). The construction of a contract is a
matter of law, in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determinations made by the court below. Id.
        In a bench trial of a law action, a trial court’s factual findings have the effect of a jury
verdict and will not be set aside on appeal unless clearly erroneous. Rice v. Poppe, 302 Neb. 643,
924 N.W.2d 344 (2019).




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                                            ANALYSIS
         Schulze and Fleuren claim that the district court erred by enforcing the settlement
agreement and dismissing their case with prejudice.
         As an initial matter, they dispute the standard of review the district court had to employ
with regard to the motion to enforce the settlement agreement. They believe the district court was
obligated to “draw all reasonable inferences in the light most favorable to [them].” Brief for
appellants at 9. That principle of law is inapplicable in this context. See Bierman v. Benjamin, 305
Neb. 860, 943 N.W.2d 269 (2020) (standard of review for summary judgments). Rather, with
respect to the motion to enforce the settlement agreement, the district court had considerable
discretion when making findings of fact. See, Rice v. Poppe, supra (trial court is fact finder in
bench trial of law action); Stauffer v. Benson, 288 Neb. 683, 850 N.W.2d 759 (2014) (in bench
trial of law action, trial court is sole judge of witnesses’ credibility and weight to be given their
testimony). We now proceed to set forth the pertinent law governing the enforceability of
settlement agreements.
         To have a settlement agreement, there must be a definite offer and an unconditional
acceptance. Strategic Staff Mgmt. v. Roseland, supra. See, also, Linscott v. Shasteen, supra (to
create contract, there must be both offer and acceptance; there must also be meeting of minds or
binding mutual understanding between parties to contract). A binding mutual understanding or
meeting of the minds sufficient to establish a contract requires no precise formality or express
utterance from the parties about the details of the proposed agreement; it may be implied from the
parties’ conduct and the surrounding circumstances. Linscott v. Shasteen, supra. The determination
of the parties’ intent to make a contract is to be gathered from objective manifestations--the
conduct of the parties, language used, or acts done by them, or other pertinent circumstances
surrounding the transaction. Id.
         A fundamental and indispensable basis of any enforceable agreement is that there be a
meeting of the minds of the parties as to the essential terms and conditions of the proposed contract.
Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015). Consideration is an essential
element to the validity of a contract. See Irwin v. West Gate Bank, 288 Neb. 353, 848 N.W.2d 605
(2014). Consideration is sufficient to support a contract if there is any detriment to the promisee
or any benefit to the promisor. Heineman v. Evangelical Luth. Good Sam. Soc., 300 Neb. 187, 912
N.W.2d 751 (2018).
         When the terms of a contract are clear, a court may not resort to rules of construction, and
terms are accorded their plain and ordinary meaning as an ordinary or reasonable person would
understand them. Strategic Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230 (2000). In
such a case, a court shall seek to ascertain the intention of the parties from the plain language of
the contract. Id.
         Two Nebraska cases, Woodmen of the World Life Ins. Soc. v. Kight, 246 Neb. 619, 522
N.W.2d 155 (1994), and Strategic Staff Mgmt. v. Roseland, supra, warrant discussion here.
         Woodmen of the World Life Ins. Soc. v. Kight, supra, involved a declaratory judgment
action brought to determine the rights of the parties with respect to a contract after the plaintiff
terminated its relationship with the defendant. On the morning of trial, the parties reached a




                                                -8-
settlement of all their differences. The defendant and his attorneys personally negotiated settlement
terms with the plaintiff’s representatives. Later, in the courtroom, the parties’ attorneys recited on
the record the terms of the settlement agreement reached between the parties. The record reflected
that the defendant had agreed to the provisions recited and had given his counsel authority to settle
and have the matter dismissed with prejudice. Subsequently, the defendant refused to sign
settlement documents, and the plaintiff filed a motion to confirm the settlement. During a hearing,
the trial court received affidavits from the parties’ attorneys containing statements that the
settlement documents accurately reflected the terms of the settlement agreement, a transcript of
the proceedings wherein the agreement had been read into the record, and testimony from the
defendant as to why he did not sign the written documents. The trial court granted the plaintiff’s
motion to confirm the settlement agreement.
        On appeal, the Nebraska Supreme Court, citing Koch v. Koch, 226 Neb. 305, 411 N.W.2d
319 (1987) (ordinarily, power of attorney to act for client in action is considered valid and
sufficient until disproved), found that the defendant had failed to show that his attorneys were
without authority to settle the case. It was noted that settlement documents reflected the terms that
were recited into the record. The decision of the trial court was affirmed.
        Strategic Staff Mgmt. v. Roseland, supra, involved an action alleging trade secret violations
and tortious interference by the defendants with the plaintiff’s business contracts. Before trial, the
parties took part in mediation, during which they reached an accord that was reduced to a
memorandum of agreement. The memorandum was reviewed by the parties’ representatives and
signed by their attorneys. The language of the memorandum included a provision stating that the
plaintiff would execute a general release of certain claims in favor of the defendants. The parties
then exchanged three drafts of the release but could not agree on the final language of the release.
The defendants then filed a motion to enforce the settlement agreement. The trial court granted the
motion, finding that the settlement agreement should be enforced in accordance with the original
memorandum of agreement signed by the parties’ attorneys following the mediation.
        On appeal, the plaintiff in Strategic Staff Mgmt. v. Roseland, supra, argued that the
memorandum of agreement was not a final settlement; but, rather, it was an agreement to make an
agreement. The Nebraska Supreme Court determined that the evidence showed a definite offer and
unconditional acceptance. It noted that the parties created several drafts of the memorandum at the
mediation hearing before finding agreeable language and that the parties informed the trial court
at a pretrial conference that a settlement had been reached. The parties placed no qualifications on
their announcement to the trial court. The plaintiff argued that the necessity of executing future
settlement documents reflected the parties’ lack of intent to be bound by the memorandum of
agreement. However, the Supreme Court observed that the terms of the general release document
did not present any materially new terms, but instead, elaborated on the terms set forth in the
memorandum of agreement. The Supreme Court recognized that a contract provision to execute
effectuating documents in the future is enforceable where all of the material terms are specified in
the original contract and leave none to be agreed upon through future negotiations. The Supreme
Court stated that it would have been a simple matter for the parties to include provisions in the
memorandum stating that certain terms would be agreed upon later or that the terms of the
memorandum would not take effect until the general release was executed. Instead, all material



                                                -9-
terms had been set forth in the memorandum without conditions and executed by counsel for the
parties in the parties’ presence.
        The plaintiff in Strategic Staff Mgmt. v. Roseland, supra, further claimed that lack of good
faith on the defendants’ part was sufficient justification for the district court to deny the motion to
enforce the settlement agreement. The trial court had found that no credible evidence had been
submitted to support allegations of bad faith; the Supreme Court determined that the trial court’s
finding was not clearly erroneous. The Supreme Court affirmed the trial court’s determination that
a valid settlement agreement had been entered into by the parties and its decision to enforce the
agreement according to its terms.
        In this case, the following evidence was admitted during the August 20, 2019, hearing. In
his affidavit, NP Dodge’s counsel averred that he received a letter from Sohl on July 15. The letter,
attached to the affidavit, showed that on July 15, Sohl wrote to NP Dodge’s counsel that Schulze
and Fleuren had “authorized” him to settle for $50,000 “as to all parties with regards to [this case].”
NP Dodge’s counsel stated that after receiving that letter, he conferred with counsel for the other
defendants and all defendants decided to collectively accept the offer. NP Dodge’s counsel further
communicated to Sohl, on July 15, that the defendants were ready, willing, and able to collectively
pay $50,000 in exchange for a mutual release of liability and dismissal with prejudice of all claims
alleged in the case, with each party to bear their own costs and such terms to be memorialized in
a written agreement to be executed by the parties on a later date.
        As set forth in detail previously, during the pretrial conference on July 16, 2019, the terms
of the settlement agreement were read into the record. We find that those terms were clear and
definite and that the agreement was supported by sufficient consideration by all of the parties
involved. The record of the July 16 pretrial conference further shows that all of the defendants,
through their counsel, agreed that the terms read into the record that day reflected their
understanding of the agreement. Sohl, then-counsel for Schulze and Fleuren, likewise agreed.
        We note that although lawyers retain apparent authority to make procedural and tactical
decisions through the existence of the attorney-client relationship, a lawyer cannot settle a client’s
claim without express authority from the client. Luethke v. Suhr, 264 Neb. 505, 650 N.W.2d 220
(2002). See, also, Neb. Ct. R. of Prof. Cond. § 3-501.2(a) (rev. 2008) (lawyer may act on behalf
of client as is “impliedly authorized” to carry out representation, however lawyer “shall abide by
a client’s decision whether to settle a matter”). Settlements negotiated by lawyers without authority
from their clients are generally not binding. See Luethke v. Suhr, supra. “A narrow exception to
this rule occurs when a lawyer settles a claim in excess of actual authority, but in the presence of
his or her client, generally in open court, and the client remains silent regarding the terms of the
settlement.” Luethke v. Suhr, 264 Neb. at 512-13, 650 N.W.2d at 227. (Emphasis supplied.)
        To the extent that Schulze and Fleuren maintain that Sohl was not authorized to enter the
specific settlement agreement on their behalf as he did on July 16, 2019, the record shows that the
narrow exception described in Luethke v. Suhr, supra, would apply as the settlement terms were
read into the record in open court and in the presence of Schulze and Fleuren. At that time, Schulze
and Fleuren both personally confirmed that they had heard all of the terms. They were given the
opportunity to voice objection or disagreement to any of the stated terms but did not do so. In fact,
Schulze personally agreed that she had an opportunity to consult with Sohl about the settlement



                                                - 10 -
and that the terms recited into the record reflected her understanding of the agreement. When the
district court declared that the agreement had been accepted by “everybody,” no party objected.
We find that the record established that there was unconditional acceptance to the settlement
agreement read into the record on July 16.
         In an apparent reference to the written settlement document, Schulze and Fleuren assert
that the defendants attempted to enforce “unstipulated terms” not agreed upon during the July 16,
2019, pretrial conference, which they believe is a “violation of the law.” Brief for appellants at 9.
This assertion has no merit.
         According to Old Republic’s counsel, the written settlement document contained “no terms
of substance that were not included in the terms recited into the record on July 16, 2019,” but “the
only additional terms [were] boilerplate terms regarding such standard items as non-admission of
liability, interpretation and enforcement of the agreement, and authority to execute, as well as a
section of recitals setting forth in broad terms the identities of the parties thereto.” After reviewing
the document, which was attached to Old Republic’s counsel’s affidavit, we agree. Similar to
Woodmen of the World Life Ins. Soc. v. Kight, 246 Neb. 619, 522 N.W.2d 155 (1994), and Strategic
Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230 (2000), the terms of the written settlement
document in this case accurately reflected the oral settlement terms and did not present any
materially new terms. The recitals and standard boilerplate language in the document were an
acceptable elaboration of the material terms that had been previously clearly and unconditionally
agreed upon by all parties.
         The law favors and encourages settlements, and in the absence of fraud, error, or mistake,
they should not be set aside. Fleischer v. Broders, 178 Neb. 723, 135 N.W.2d 5 (1965). Schulze
and Fleuren complain that the defendants deceived and forced them to accept the settlement and
that they were under duress from Sohl’s “misguided representation” regarding what the amount of
the settlement offer would be when they appeared for the July 16, 2019, pretrial conference. Brief
for appellants at 10. Schulze and Fleuren “thought” they were appearing that day only to discuss
options of settling and to retrieve case files from Ruge. Id. There is nothing in the record that
supports any of these assertions. If any such evidence existed, Schulze and Fleuren failed to offer
it during the August 20 hearing regarding the settlement agreement. See Clarke v. First Nat. Bank
of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017) (it is appellant’s burden to create record for
appellate court which supports errors assigned).
         Instead, Schulze and Fleuren improperly rely on their August 19, 2019, motion under
which they attempted to withdraw from the settlement as support for their contention that they
showed the district court that “no settlement agreement had been reached.” Brief for appellants at
9. See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017) (pleadings alone are not
proof but mere allegations of what parties expect evidence to show; bill of exceptions is only
vehicle for bringing evidence before appellate court). And, they inappropriately place evidentiary
value on the unsworn arguments they made as pro se litigants during the August 20 hearing. See,
Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015) (pro se litigant is held to same
standards as one who is represented by counsel); City of Lincoln v. MJM, Inc., 9 Neb. App. 715,
618 N.W.2d 710 (2000) (unsupported assertions of facts by attorney during court proceedings do
not establish facts asserted unless appropriate parties stipulate to such facts).



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         We find that the settlement agreement was an enforceable contract and that there is nothing
in the record requiring that it be set aside. As noted by the district court, the defendants performed
all of their obligations under the settlement agreement and are entitled to the benefits for which
they bargained. We therefore conclude that the district court correctly enforced the settlement
agreement and dismissed this case with prejudice.
                                          CONCLUSION
       We affirm the August 21, 2019, judgment of the district court.
                                                                                          AFFIRMED.




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