                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                         February 20, 2002 Session

          ALFRED P. GARIONIS AND WIFE, FLORENCE GARIONIS,
             VS. ANDRE PRIDE AND CHARLES M. HOLLAND

               Direct Appeal from the Circuit Court for Shelby County, Tennessee.
                    No. 95821-T.D. The Honorable Robert L. Childers, Judge

                                        __________________________

                          No. W2001-01682-COA-R3-CV - Filed April 4, 2002
                                    ________________________

        The plaintiffs filed a suit for personal injuries arising out of an automobile accident.
Through their attorney, they reached a settlement of their claims. Thereafter, they sought to set
aside the settlement upon the grounds that they had not authorized their attorney to accept the
defendants’ offer. Following an evidentiary hearing, the trial court found that the plaintiffs had
authorized their attorney to settle the case and entered an order enforcing the settlement. We
hold that the findings of the trial court are supported by a preponderance of the evidence and
affirm the lower court.

     Tenn.R.App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
                                        Remanded

WILLIAM B. ACREE, Sp.J., delivered the opinion of the court, in which Frank W. Crawford,
P.J., W.S., and Alan E. Highers, J., joined.

Alfred P. Garionis and wife, Florence Garionis, appellants, pro se.

Douglas A. McTyier, Memphis, Tennessee, for the appellee, Charles M. Holland, and Nathan
Kellum, Memphis, Tennessee, for the appellee, State Auto Insurance Company.

                                                     OPINION

        The plaintiffs appeal the trial court’s determination that the parties agreed to a settlement
of the plaintiffs’ personal injury suit.1 They contend that the settlement was not valid because
they did not authorize their attorney to accept it. We hold that the findings of the trial court are
supported by a preponderance of the evidence and affirm the lower court.


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          The plaintiff, Alfred G arionis, was injured in the accident and so ught damages for perso nal injuries. His
wife, Florence Garionis, sought damages for loss of consortium.
        This suit arises out of an automobile accident involving the plaintiff, Alfred Garionis, and
defendants, Andre Pride and Charles M. Holland. Pride was uninsured and, consequently, State
Auto Insurance Company, the plaintiffs’ uninsured motorist carrier, defended the suit.
Eventually, the parties engaged in mediation. The case was not settled at the mediation, but by
agreement, the settlement offer was left open for two days. Within that time frame, the plaintiffs,
by counsel, accepted the defendants’ settlement offer. Thereafter, the plaintiffs refused to
finalize the settlement and took the position that they had not authorized their attorney to settle
the case. The defendants then filed motions to enforce the settlement which were granted. The
plaintiffs discharged their attorney and filed a pro se motion under Rule 60 T.R.C.P. to set aside
the order enforcing the settlement. They contended that they did not authorize their attorney to
accept the settlement, and that they were not notified of the hearing date of the defendants’
motions.

         The trial court conducted an evidentiary hearing upon the plaintiffs’ motion. The
plaintiff, Alfred Garionis, testified at the hearing. His version as to the chain of events was that
he told his attorney he was not happy with the defendants’ offer of $30,000.00, and that he was
declining it. However, before the mediation was concluded, he said he would think about it.
After the mediation, the plaintiff talked with his attorney and told him he was inclined to accept
the settlement, but that he needed more information. The plaintiff said he was concerned about
the amount of money he would receive from the settlement after paying medical and litigation
expenses. The plaintiff testified that he talked with his attorney again and told him that he had
not agreed to nor would he agree to the settlement. His attorney told him the case had been
settled.

        Attorney Gene Laurenzi, who had represented the plaintiffs, testified at the hearing. He
said that at the mediation Mr. Garionis indicated he was inclined to take the offer but that he
wanted to sleep on it. By agreement, the offer was left open until 12:00 Noon on Friday. On
Friday morning, Mr. Laurenzi talked with his client, and his client told him that he was tired and
wanted to take the offer. The attorney told him that he would immediately notify the other
attorneys. After the telephone call, Mr. Laurenzi faxed a letter to defendants’ counsel informing
them that the plaintiffs accepted their offer. Later, the plaintiffs refused to sign the releases.

       At the conclusion of the hearing, the trial court made the following findings:

                “Based on the evidence and the testimony in this case, there is no question
       in the Court’s mind at all about what happened. I believe that Mr. Garionis
       believes what he told Mr. Laurenzi. I believe and find, based on the testimony in
       this case that Mr. Garionis simply doesn’t remember what he told Mr. Laurenzi,
       and that’s evidenced by what he put in his motion that the conversation - - the
       telephone conversation took place on the Monday after the mediation when
       clearly, it took place on Friday after the mediation. And I find that Mr. Garionis
       told Mr. Laurenzi during the telephone conversation that he was tired and wanted
       to settle the case. He wanted to take the offer. Mr. Laurenzi, being the good


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       lawyer that he is, sent the notice to the defense lawyers that the case was settled
       and that settled it. That settled the case because he had the client’s authorization
       to settle the case. It’s unfortunate now that Mr. Garionis has changed his mind
       after he’s had more time to think about it. But that’s what the Court finds in this
       case based on the evidence that I’ve heard.”

       Initially, we observe that courts of this state have the authority to enforce valid settlement
agreements entered into by parties in litigation. See Mullins v. Parkey, 874 S.W.2d 12, 13
(Tenn.App. 1992) and Beaman Pontiac Co. v. Gill, No. M1999-00666-COA-R3-CV, 2000
Tenn.App. LEXIS 268 (Tenn.Ct. App., MS, April 28, 2000). However, an attorney cannot agree
to dismiss litigation which permanently bars his client from pursuing his claim without the
express authority of the client. Absar v. Jones, 833 S.W.2d 86, 89 (Tenn.App. 1992).

       The issue in this case is a factual issue and is whether the plaintiffs authorized their
attorney to settle the case. This is a nonjury case, and we review the findings of fact by the trial
court de novo upon the record accompanied by a presumption of correctness, unless the
preponderance of the evidence is otherwise. Tenn.R.App.P. 13 (d); Rooks v. Rooks, 992 S.W.2d
403, 404, (Tenn.1999).

       The trial judge heard the testimony of the plaintiff, Mr. Garionis, and his former attorney,
Mr. Laurenzi, and found that Mr. Garionis told his attorney to settle the case. We find no
evidence in the record to support a conclusion to the contrary. Accordingly, we hold that the trial
judge’s findings of fact are supported by a preponderance of the evidence.

        For these reasons, the decision of the trial court is affirmed, and the cause is remanded for
further proceedings consistent with this opinion. The costs of this appeal are taxed against the
plaintiffs for which execution may issue if necessary.


                                              ______________________________________
                                              WILLIAM B. ACREE, JR., SPECIAL JUDGE




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