                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WARREN G. ROBERTS, M.D.,                         No.   15-35943
F.A.A.N.S., an individual; ASPEN SPINE
AND NEUROSURGERY CENTER, P.C.,                   D.C. No. 3:13-cv-01136-SI
an Oregon professional corporation,

              Plaintiffs-counter-                MEMORANDUM*
              defendants-Appellants,

 v.

PACIFIC SPINE SPECIALISTS, LLC, an
Oregon limited liability company;
TIMOTHY L. KEENAN, M.D.; ROBERT
L. TATSUMI, M.D.,

              Defendants-Appellees,

LEGACY MERIDIAN PARK
HOSPITAL, INC., DBA an Oregon non-
profit corporation, an Oregon non-profit
corporation; ANDREW B. CRAMER, Dr.;
NORTHWEST NEUROSURGICAL
ASSOCIATES, LLC, an Oregon limited
liability company; FRANCISCO X.
SOLDEVILLA, M.D.,

              Defendants-counter-
              claimants-Appellees.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                     Argued and Submitted November 6, 2017
                                Portland, Oregon

Before: FERNANDEZ and W. FLETCHER, Circuit Judges, and TIGAR,** District
Judge.

      Appellants Dr. Warren Roberts and Aspen Spine and Neurosurgery Center

(“Roberts”) appeal the district court’s order enforcing a “walkaway” settlement of

the litigation without compensation to any party. Roberts contends that he revoked

his lawyer’s authority to settle the case on those terms before Appellees accepted

the settlement offer. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.

      Roberts acknowledges that on October 17, 2014, he gave his attorney, Mark

McDougal, authority to enter into a settlement dismissing all claims without

compensation.1 Roberts argues, however, that he revoked McDougal’s settlement

authority in a October 20, 2014 email stating,“I have now had a bit more time to

consider case options. I would like to speak with you about case abatement. Let

      **
            The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
      1
         Before the district court, Roberts contended that he had not given such
authority, but he has abandoned this argument on appeal.
                                          2
me know a good time that works for you. Please do not dismiss case until we have

a chance to discuss this.”2

      We need not decide whether the email revoked McDougal’s settlement

authority because Appellees were entitled to accept the offer in any event. Roberts

does not argue that any revocation or modification of the offer was communicated

to Appellees before their acceptance. At the time McDougal extended the

settlement offer, he had Roberts’ actual authority. At the time Appellees accepted

the offer, they had no reason to believe that McDougal had lost his authority to

deal on Roberts’ behalf, and they were therefore entitled to deliver their

acceptances to him. Restatement (Third) of Agency § 3.11 (2006) (“Apparent

authority ends when it is not longer reasonable for the third party with whom an

agent deals to believe that the agent continues to act with actual authority.”). In

other words, even if McDougal’s actual authority was terminated by the October

20, 2014 email, his apparent authority was unaffected. Id. All of the Appellees

accepted the settlement offer before they had any indication that the offer had been

withdrawn. At that point, the parties reached a binding settlement agreement.




      2
        We reject Appellees’ argument that this argument was not preserved for
appeal. Roberts raised the argument before the district court.
                                           3
      Roberts argues that Appellees’ counsel were not entitled to assume that

McDougal had Roberts’ authority to receive Appellees’ acceptances because

Oregon law “has long placed the burden on attorneys to inquire and discern the

extent of their counterparts’ authority in settlement negotiations,” citing Galbraith

v. Monarch Gold Dredging Co., 84 P.2d 1110, 1115 (1938). Galbraith does not

help Roberts. In that case, a defendant’s attorney entered into a confession of

judgment in the full amount sought by the plaintiff. Id. at 1110-11. The court set

aside the judgment on the ground that defendant had not consented to the

judgment. Id. at 1115-16. Defendant had never given such consent, and plaintiff

was aware that defendant not only did not consent, but actively objected to the

proposed settlement. Id. at 1114. Here, by contrast, it is not disputed that Roberts

authorized McDougal to offer a walkaway settlement to Appellees at the time the

offer was made. Appellees were entitled to rely on that offer, and did so. There is

no rule, located in Galbraith or otherwise, imposing a duty on Appellees to

ascertain McDougal’s authority before each subsequent communication with him.

      AFFIRMED.




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