                                                                         FILED
                                                                     Mar 08 2019, 6:04 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEES
Crystal G. Rowe                                            Ryan D. Etter
Alyssa C.B. Cochran                                        Ken Nunn Law Office
Kightlinger & Gray, LLP                                    Bloomington, Indiana
New Albany, Indiana

Galen Bradley
Kightlinger & Gray, LLP
Merrillville, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Jacob Todd,                                                March 8, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CT-2138
        v.                                                 Interlocutory Appeal from the Cass
                                                           Circuit Court
Tonji Coleman and Amos                                     The Honorable Leo T. Burns,
Johnson,                                                   Judge
Appellees-Plaintiffs                                       Trial Court Cause No.
                                                           09C01-1607-CT-19



Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019                            Page 1 of 9
                                                   Case Summary
[1]   Tonji Coleman was injured in an automobile accident and filed a negligence

      action against Jacob Todd. The parties’ attorneys engaged in negotiations and

      made a verbal agreement to settle the case for $10,000. The trial court initially

      ordered Coleman to comply with the settlement agreement but subsequently

      granted Coleman’s motion to reconsider and rescinded the original order. In

      this interlocutory appeal, Todd asserts that Coleman is bound by the settlement

      agreement and that the trial court therefore erred in rescinding its order to

      compel compliance. We reverse and remand.


                                      Facts and Procedural History
[2]   In July 2016, Coleman filed a negligence action against Todd stemming from

      an August 2014 automobile accident in which she was injured.1 Over the next

      eighteen months, the parties scheduled three mediation sessions but completed

      none, due largely to Coleman’s nonattendance. In January 2018, Coleman’s

      counsel (“Counsel 1”)2 negotiated with counsel for Todd’s insurer (“Insurer”) to

      settle all claims. Insurer’s initial offer of $5000 was increased via counteroffer

      to a $10,000 settlement of all claims. On February 2, 2018, Counsel 1 indicated

      that Coleman had agreed to the $10,000 figure, and Insurer began preparing the

      necessary documents. On February 12, 2018, Insurer filed a notice of




      1
          Amos Johnson is also a named plaintiff, but he is not participating in this appeal.
      2
       “Counsel 1” refers to Leeman Law Offices. Two attorneys worked on Coleman’s case, Kelly Leeman and
      Amber Garrison. Appropriate distinctions between the two attorneys will be designated as necessary.

      Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019                         Page 2 of 9
      settlement in the trial court. On February 21, 2018, Counsel 1 sent Insurer a

      letter requesting that the settlement check be issued. Two days later, Counsel 1

      discovered that Coleman had hired another law firm (“Counsel 2”) to represent

      her. Meanwhile, Insurer sent the settlement documents to Counsel 1, who

      informed Insurer about the change of representation and forwarded the

      documents to Counsel 2 with a letter apprising Counsel 2 of the accepted

      settlement offer.


[3]   During the next couple months, Todd learned that Coleman no longer wanted

      to settle the case. On April 19, 2018, Todd, through Insurer, filed a motion to

      enforce the settlement agreement. The trial court granted Todd’s motion and

      issued an order for Coleman to comply with the settlement agreement. A few

      days later, Coleman filed a motion to reconsider, claiming that she neither

      agreed to nor signed the $10,000 settlement agreement. She requested that the

      trial court issue an order rescinding its previous order enforcing settlement. The

      trial court conducted a hearing, during which Coleman and Counsel 1 testified.

      Both attorneys from Counsel 1 testified that it was their understanding, based

      on communications with Coleman, that they had authority to agree to the

      $10,000 settlement. When questioned about the settlement negotiations and

      why she decided to seek different representation, Coleman testified, “[Counsel

      1] said, uh, how about five thousand dollars for your pocket, is what I heard the

      first time and the second day it was ten thousand, so I am thinking the next day

      it might be fifteen, so, I just was done at that point.” Tr. Vol. 2 at 14.




      Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019            Page 3 of 9
[4]   The trial court issued an order with findings of fact, specifically finding that

      Counsel 1 had actual and apparent authority to enter into the settlement

      agreement. Notwithstanding, the court granted Coleman’s motion and

      rescinded its original order to compel compliance. This interlocutory appeal

      ensued. Additional facts will be provided as necessary.


                                      Discussion and Decision
[5]   Todd contends that the trial court erred in granting Coleman’s motion to

      reconsider. A trial court has the inherent power to reconsider, vacate, or

      modify any previous order so long as the action remains in fieri, meaning that it

      is “pending resolution.” Pond v. Pond, 700 N.E.2d 1130, 1135 (Ind. 1998);

      Stephens v. Irvin, 734 N.E.2d 1133, 1135 (Ind. Ct. App. 2000), trans. denied

      (2001). Here, the trial court’s order included specific findings of fact. When a

      trial court issues specific findings sua sponte, the findings control our review

      and the judgment as to the issues those findings cover; for all other issues, we

      apply a general judgment standard. State Farm Ins. Co. v. Young, 985 N.E.2d

      764, 766 (Ind. Ct. App. 2013). We apply a two-tiered standard of review,

      determining first whether the evidence supports the findings and then whether

      the findings support the judgment. Id. We review the findings for clear error

      and will reverse when our review of the record leaves us with a firm conviction

      that a mistake has been made. Id. We neither reweigh evidence nor reassess

      witness credibility. Id. While we defer substantially to findings of fact, we do

      not do so to conclusions of law. Id.



      Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019           Page 4 of 9
[6]   Coleman sought and was granted rescission of the trial court’s previous order to

      compel compliance with the $10,000 settlement agreement. This Court has

      stated,


                Indiana strongly favors settlement agreements and if a party
                agrees to settle a pending action, but then refuses to consummate
                his settlement agreement, the opposing party may obtain a
                judgment enforcing the agreement. Settlement agreements are
                governed by the same general principles of contract law as other
                agreements. Generally, a settlement agreement is not required to
                be in writing.


      Sands v. Helen HCI, LLC, 945 N.E.2d 176, 180 (Ind. Ct. App. 2011) (citations

      omitted), trans. denied.


[7]   Here, the trial court found, in pertinent part, as follows:


                3. Plaintiff, Tonji Coleman’s counsel Kelly Leeman, had actual
                and apparent authority to enter into the settlement agreement
                that is the subject of this dispute.

                4. It is clear from the record of the proceedings that the Plaintiff,
                Tonji Coleman, has never signed the terms of any settlement
                agreement nor has she released any claims that she has, or may
                have, against the Defendant.

                5. The testimony provided by Plaintiff, Tonji Coleman, on July
                3, 2018, made it clear to the Court that she is not prepared to
                settle her dispute against the Defendant in this case.

                6. Equally compelling is the testimony of Tonji Coleman’s
                lawyers, Kelly Leeman and Amber Garrison [Counsel 1].

                7. Mrs. Garrison’s testimony in open court convinces this Court

      Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019                 Page 5 of 9
        that she maintained her professional responsibility to her client,
        Tonji Coleman, in several conversations leading up to the
        settlement offer of $10,000 which is a part of the record of this
        proceeding.

        8. The evidence is clear that Plaintiff, Tonji Coleman, did not
        stay in regular contact with her counsel, moved her residence to a
        different state and reached a point of frustration with the
        litigation that compelled her to ask [Counsel 1], to “get the case
        over with.”

        9. Prior to making the settlement offer of $10,000, the evidence
        supports a finding that Ms. Coleman did not fully cooperate in
        the litigation of the matter, specifically, efforts to mediate the
        case were continued on three separate occasions due to the
        Plaintiff’s inability or refusal to follow the request of [Counsel 1]
        and participate in scheduled mediation.

        10. Notwithstanding the foregoing, Ms. Coleman has a right to
        have her case against the Defendant tried to a jury with [Counsel
        2], and forcing her to comply with the terms of the settlement
        agreement would not adequately protect her due process rights.

        11. Ms. Coleman … ha[s] the right to pursue this litigation to
        conclusion on whatever terms are suggested by [Counsel 2],
        including a trial of the issue to a jury.

        ….

        13. This order should not be construed by any person or under
        any set of facts as a conclusion that the Plaintiff, Tonji Coleman,
        was not adequately represented by [Counsel 1].


Appealed Order at 1-2.




Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019               Page 6 of 9
[8]   Todd maintains that finding 3, that Counsel 1 had actual and apparent

      authority to enter into the settlement agreement on Coleman’s behalf,

      contradicts the trial court’s ultimate decision to rescind its order compelling

      Coleman to comply with the settlement agreement. We agree. “Actual

      authority is created by written or spoken words or other conduct of the principal

      which, reasonably interpreted, causes the agent to believe that the principal

      desires him so to act on the principal’s account.” Fid. Nat’l Title Ins. Co. v.

      Mussman, 930 N.E.2d 1160, 1165 (Ind. Ct. App. 2010), trans. denied (2011).

      Actual authority focuses on the belief of the agent and may be express, implied,

      or created by acquiescence. Id. With respect to apparent authority, there must

      be a manifestation by the principal to support a reasonable belief and inference

      of authority. Id.


[9]   Coleman relies on Bay v. Pulliam in asserting that her decision to retain Counsel

      1 did not automatically constitute implied authority to settle her claim. 872

      N.E.2d 666, 668 (Ind. Ct. App. 2007). It is well settled that an attorney may

      not settle a claim without the client’s consent. Id. However, unlike in Bay, the

      trial court here specifically found that Counsel 1 had “actual and apparent

      authority to enter into the settlement agreement that is the subject of this dispute.”

      Appealed Order at 1 (emphasis added). Moreover, in Bay, information as to the

      conversations between the client and attorney was not presented through

      testimony or any other type of evidence but was merely referenced during

      counsel’s argument to the court. 872 N.E.2d at 668. In contrast, here,




      Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019                  Page 7 of 9
       Coleman and both Counsel 1 attorneys testified at the hearing concerning the

       settlement offers.


[10]   Leeman testified that Coleman had authorized the firm to settle for $5000,

       explaining, in relevant part,


               [] Leeman: She got an offer for five (5) thousand dollars that was
               submitted to her …. [B]ecause of her circumstances she wanted
               to take it and told us to take the five (5) thousand. I made the
               offer back, at least ten (10) thousand, so, cause if she was
               desperate to get some money, five (5) thousand was way under
               what it ought to be in my view and the amount of time and
               money we had involved in it. But if her circumstances were such
               that she wanted it done and over with then …

               [PLAINTIFF’S COUNSEL]: You made that ten (10) thousand
               dollar offer on you own then, if she want[ed] five (5) you just
               tried to get more for her and you made the ten (10) thousand
               dollar offer on your own?

               [] Leeman: Yes.


       Tr. Vol. 2 at 27.


[11]   Garrison, the associate assigned to the case, testified, “it was my understanding

       that Tonji was ready to put the case to bed, and yes, that she was fine with that

       offer …. I did not have a doubt at the time …. [S]he was ready to be done.” Id.

       at 34, 40. She also testified that her firm “did not just make an offer of ten

       thousand (10,000) dollars … without discussing it with our client. We, I

       discussed it [with] Tonji.” Id. at 44.



       Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019            Page 8 of 9
[12]   Finally, when asked if she ever told Counsel 1 to settle the case for $10,000,

       Coleman responded, “I told them that they could do whatever they have been

       doing to assist me []as my lawyers because I didn’t know what was going on

       and it was a bit confusing[.]” Id. at 11. The foregoing evidence, which we may

       not reweigh, is sufficient to support the trial court’s specific finding that Counsel

       1 had actual and apparent authority to enter into the settlement agreement on

       Coleman’s behalf. As for the second tier of our review, we conclude that the

       trial court’s ultimate decision to rescind its original order is not supported by

       the findings. Because the court’s order is internally contradictory, we reverse

       and remand for proceedings consistent with this decision.


[13]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-2138 | March 8, 2019           Page 9 of 9
