                          IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2003-CA-02592-SCT

CLARENCE VAUGHN, JR.

v.

JOHN C. RETTIG, JR.


DATE OF JUDGMENT:                                  04/29/2003
TRIAL JUDGE:                                       HON. CARTER O. BISE
COURT FROM WHICH APPEALED:                         HARRISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                            DEAN HOLLEMAN
ATTORNEY FOR APPELLEE:                             JAMES KENNETH WETZEL
NATURE OF THE CASE:                                CIVIL - TORTS-OTHER THAN PERSONAL
                                                   INJURY & PROPERTY DAMAGE
DISPOSITION:                                       REVERSED AND REMANDED       - 03/10/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        EASLEY, JUSTICE, FOR THE COURT:

¶1.     Clarence    Vaughn,     Jr.,   filed   a   complaint   for     preliminary   injunction, permanent

injunction, accounting, appointment of receiver, damages and other relief against John C.

Rettig, Jr., in the First Judicial District of the Chancery Court of Harrison County, Mississippi.

Mark B. Strickland was substituted to act as Vaughn’s attorney. After obtaining leave to amend,

Vaughn filed an amended complaint against Rettig seeking to dissolve the incorporated

business entity with the assets divided equally between the parties.

¶2.     Three letters were sent to Vaughn’s attorney, Strickland, by Rettig’s attorney, James K.

Wetzel, dated May 29, 2002; June 25, 2002 and August 20, 2002.                   On October 29, 2002,
Rettig’s attorney, Wetzel, filed a petition to enforce settlement against Vaughn. The trial court

conducted a hearing on the petition to enforce settlement.            Only Vaughn and Wetzel testified

at the hearing. The trial court granted the petition to enforce settlement.

¶3.     Vaughn now appeals to this Court.

                                                 FACTS

¶4.     In March 1999, Vaughn and Rettig formed and registered a company known as

Campgrounds of the South, L.L.C. Each were to contribute $60,000 and to own 50% of the

company. The purpose of the company was to own and operate a recreational park in Harrison

County, Mississippi.      A mortgage was incurred, land was purchased and the park began

operation in 2000, with Rettig handling the daily operations.

¶5.     Vaughn sued Rettig in April 2001, seeking injunctive relief, an accounting, Rettig’s

removal and appointment of a receiver. Vaughn was initially represented by Don Rafferty, but

Strickland was substituted to represent him. On April 10, 2002, Strickland filed a motion for

trial setting and scheduling order and a motion for leave of court to amend pleadings. The trial

court granted leave to amend the pleadings.         Strickland filed Vaughn’s amended complaint on

May 31, 2002, seeking to dissolve the business.

¶6.     On May 29, 2002, Wetzel sent a letter to Strickland proposing that Vaughn purchase

Rettig’s interest in the business. In his letter, Wetzel wrote that Rettig had authorized him to

submit the following proposal:

        1.      [Rettig] would accept $250,000.00, cash money;
        2.      The remaining 3 acres of undeveloped land in the SW corner of the property
                would be conveyed to John Rettig, free and clear of any and all liens;




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          3.     All liability of debt, including the mortgage which is on the property and any
                 credit card debts in the name of the Campgrounds, [Rettig] would be freed and
                 held harmless from; and
          4.     John Rettig’s name removed from all business contracts concerning
                 Campgrounds of the South.

Strickland did not respond to this letter.

¶7.       Thereafter, on June 25, 2002, Wetzel sent a letter to Strickland submitting another

settlement proposal whereby Rettig would buy Vaughn’s interest in the business for the sum

of $125,000.00. The offer was to remain open for ten days. Strickland did not respond to this

letter.

¶8.       According to Wetzel, sometime prior to August 20, 2002, he spoke with Strickland by

telephone about settlement.       Thereafter, Wetzel sent a letter to Strickland dated August 20,

2002. The substance of that letter provided:

          Pursuant to our agreement to resolve this matter, this letter will confirm that my
          client has obtained the $125,000.00 to purchase the interest of Clarence
          Vaughn, Jr., for $125,000.00 in the Campgrounds of the South Development
          along with removing Mr. Vaughn from the underlying indebtedness. Please be
          advised that the funds will be available on Thursday, August 22, 2002, however,
          if you would like to draw up a mutual release releasing both parties from the
          obligation and an Order of Dismissal of the Chancery Court lawsuit, please feel
          free to do so. I can have the money hand carried to you on Friday, August 23,
          2002 and I am sure that the bank will have to have some document signed by Mr.
          Vaughn releasing him for the underlying obligation as well. This letter will
          confirm settlement of this matter and I look forward to having the releases
          executed by the parties in order to resolve this matter.

Strickland did not respond to this letter.

¶9.       Wetzel testified at the hearing to enforce settlement that he called Strickland two

times: once on Friday, August 23, 2002, and another call the following week. According to

Wetzel, Strickland explained: “Give me another week.       I’m talking— he’s [Vaughn] got some



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reservations.   He didn’t say he was backing out.            He said, give me another week, Jimmy.”

Wetzel also testified Strickland said “I’m having a little bit of a problem with my client.     I’ll

get it resolved. Give me a week.” Wetzel did not hear back from Strickland.

¶10.    No writings from Vaughn or his attorney, Strickland, confirming a settlement were ever

produced. All three letters regarding any settlement were authored by and offered by Wetzel.

No releases were ever signed, and no money was ever exchanged.

¶11.    Strickland did not testify at the hearing. Vaughn testified that he never agreed to settle

the case against Rettig for $125,000.00.             Vaughn further stated that he never had any

discussions to settle the matter for $125,000.00.         Wetzel and Vaughn were the only witnesses

who testified at the hearing on Rettig’s petition to enforce settlement.

¶12.    The trial court determined that:

        The Court also recognizes that “the law favors the settlement of disputes by
        agreement of the parties and, ordinarily, will enforce the agreement which the
        parties have made, absent any fraud, mistake or over reaching.”

        The Plaintiff, Clarence Vaughn, Jr., has failed to submit credible testimony that
        this settlement was reached without his expressed authority and has failed to
        show that the settlement was a result of any fraud, mistake or over reaching.

        It is quite obvious to this Court that a settlement was reached by virtue of the
        letter prepared by James K. Wetzel to Mark Strickland dated August 20, 2002,
        which was sent to Mark Strickland by facsimile as well as to his post office box.

¶13.    The trial court denied Vaughn’s motion for reconsideration. Vaughn now appeals to this

Court raising the following issues:

        I.      Whe ther the trial court erred in admitting Wetzel’s testimony to what
                Vaughn’s attorney stated.

        II.     Whether the trial court erred in finding that the case had been settled by
                Vaughn’s attorney.


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                                             ANALYSIS

         I. Hearsay

¶14.     On appeal, Vaughn argues that Wetzel’s testimony, over his counsel’s objection,

regarding what Strickland stated in their telephone conversations constituted hearsay.    Vaughn

contends that Strickland’s hearsay statements should not have been admitted into evidence.

M.R.E. 801(d)(2) provides:

         Admission by Party-Opponent. The statement is offered against a party and is
         (A) his own statement, in either his individual or a representative capacity or
         (B) a statement of which he has manifested his adoption or belief in its truth, or
         (C) a statement by a person authorized by him to make a statement concerning
         the subject, or (D) a statement by his agent or servant concerning a matter
         within the scope of his, agency or employment, made during the existence
         of the relationship, or (E) a statement by a co-conspirator of a party during the
         course and in furtherance of the conspiracy.

(emphasis added). This assignment of error is without merit.

         II. Settlement

¶15.     On appeal, Vaughn raises the issue of whether Strickland had authority to conduct

settlement negotiations and settle his claims where Strickland was authorized only to conduct

litigation.   The trial court determined that Strickland had the authority to settle Vaughn’s case

and stated that Vaughn had not met his burden to prove that no settlement was reached. The

trial court stated that Vaughn failed to submit credible evidence that the settlement was reached

without his expressed authority and failed to show that the settlement was the result of any

fraud, mistake or over reaching.

¶16.     In Terrain Enterprises, Inc. v. Western Casualty and Surety Co., 774 F.2d 1320, 1321

(5th Cir. 1985), the United States Court of Appeals for the Fifth Circuit was faced with


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applying Mississippi law to determine whether there was an offer of settlement by David

Mockbee, counsel for Terrain, and acceptance by counsel for Western.              The United States

District Court for the Southern District of Mississippi expressly recognized that a settlement

offer was made by Terrain’s attorney and accepted by Western’s attorney. Id. However, the

district court “found a genuine misunderstanding between Terrain and Terrain’s attorney

regarding the attorney’s authority to settle the case.”        Id.    The Fifth Circuit reversed and

remanded the case, stating:

        It is presumed that an attorney who has represented a party is authorized to take
        all action necessary to conduct the litigation. Great Atlantic and Pacific Tea
        Co. v. Majure, 176 Miss. 356, 168 So. 468 (1936). The burden of showing that
        the attorney had no authority to act is upon the party denying such authority.
        Hirsch Bros. & Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344
        (1929). Terrain did not meet this burden because they did not offer any proof
        that Mockbee did not have authority to act on their behalf. Western was
        justified in relying upon the settlement offer made by Mockbee based upon his
        previous actions as representative of Terrain. There is no question here of good
        faith. Thus, the three requirements of apparent authority were satisfied in this
        instance.

774 F.2d at 1322.

¶17.    In Terrain, Western made a motion to enforce settlement.             Id. at 1321.   Terrain

contended that its counsel, Mockbee, did not have actual or apparent authority to settle the

case.   Id. at 1322.    However, the court noted that “Western countered that contention with

Mockbee’s testimony that he was ‘directed’ to settle the case.” Id.

¶18.    Here, Strickland never was called to testify at the hearing on Rettig’s petition to enforce

settlement. Likewise, we have no written documents from Strickland supporting that there was

a settlement.   When Rettig attempted to enforce the contended settlement, Vaughn testified

that he never authorized a settlement and conducted no settlement negotiations with his

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attorney, Strickland.    No releases were ever prepared or signed, and no money had been

exchanged.

¶19.    In Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 356, 168 So. 468, 472

(1936), this Court discussed its holding in Hirsch Bros. & Co. v. R. E. Kennington Co., 155

Miss. 242, 124 So. 344 (1929), which was also applied by the Fifth Circuit in Terrain.        In

Great Atlantic, this Court stated:

        But, in the recent case of Hirsch Bros. & Co. v. R.E. Kennington Co., 155 Miss.
        242, 124 So. 344, 88 A.L.R. 1, we held that an attorney could not bind a party
        unless he had been employed by such party, and overruled the earlier decisions
        holding that a party was bound by every act of the attorney he had employed.

        It seems to be the sound principle that where a party employs an attorney, and
        such attorney acts for him in the court proceedings, such acts being
        presumptively authorized, and a third party is injured by such act of the attorney,
        and where the party for whom the attorney acts does not take reasonable steps
        to overcome, or undo, the wrongful consequences of the act of the attorney,
        such party is estopped from setting up any want of power in the attorney to act
        for him.

Great Atlantic & Pacific Tea Co., 168 So. at 472.

¶20.    However, rather than whether Strickland had authority to settle Vaughn’s claims, the

issue before this Court is whether the parties reached a settlement by establishing that a

meeting of the minds occurred.       Vaughn contends that the trial court should have denied

Rettig’s petition to enforce settlement because there was no proof that there was a meeting of

the minds to settle the case.

¶21.    In Viverette v. State Hwy. Comm’n of Miss., 656 So. 2d 102, 103 (Miss. 1995), this

Court held:

        It is elementary that in order for there to be a settlement there must be a
        meeting of the minds. Thomas v. Bailey, 375 So.2d 1049, 1052 (Miss. 1979)

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        (citing Hutton v. Hutton, 239 Miss. 217, 230, 119 So.2d 369, 374 (Miss. 1990)
        (a settlement is a contract). The burden is upon the party claiming the
        benefit of the settlement to demonstrate by a preponderance of the
        evidence that there was a meeting of the minds. Warwick v. Matheney, 603
        So.2d 330, 336 (Miss. 1992).

(emphasis added).

¶22.    The trial court correctly cited Viverette, finding that there must be a meeting of the

minds in order for there to be a settlement. However, as argued on appeal by Vaughn, the trial

court then stated that “the plaintiff, Clarence Vaughn, Jr., has failed to submit credible

testimony” and relied upon the unilateral letter dated August 20, 2002, written by Rettig’s

attorney, Wetzel.    Vaughn contends that the trial court erred in placing the burden upon him

rather than Rettig to prove that there had been no settlement.

¶23.    In Viverette, this Court held that the burden of proving that a meeting of the minds

occurred rests upon the party who is claiming benefit from the settlement. The Court further

found   that the    party claiming benefit       from the        settlement must “demonstrate by a

preponderance of the evidence that there was a meeting of the minds.” Id.

¶24.    As previously discussed, Rettig’s attorney, Wetzel, testified as to the telephone

conversations he had with Strickland.       Wetzel’s unilateral letter dated August 20, 2002, was

introduced.    No written documents, letters or confirmation were produced from Vaughn’s

attorney, Strickland.   Vaughn testified that he never authorized any settlement nor engaged in

any settlement negotiations or discussions to settle his case for $125,000.00.       Strickland was

never called as a witness. No releases were prepared by Strickland or signed by Strickland or

Vaughn. No money was ever transferred to Vaughn. All we have in the record is what Wetzel




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testified that Strickland said in the telephone conversations and an unilateral letter from

Wetzel to Strickland with no response from Strickland.

¶25.    For some reason, neither Strickland nor Rettig were ever called as witnesses. Nothing

in the record reflects that they were unavailable. The burden rested on Rettig to prove that a

meeting of the minds occurred in order to enforce settlement.            We find based on Vaughn’s

denial of any knowledge of the settlement, no written documentation or letters from Vaughn’s

attorney to Rettig’s attorney discussing settlement or confirming settlement and the fact that

Strickland was not called to testify, we are left with many unanswered questions. As we are

bound by the record and the lack of evidence to demonstrate settlement, we conclude that the

trial court erred in granting Rettig’s petition to enforce settlement.




                                              CONCLUSION

¶26.    For the foregoing reasons, we reverse the judgment of the Chancery Court for the

District of Harrison County, Mississippi, and remand this case for further proceedings

consistent with this opinion.

¶27.    REVERSED AND REMANDED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCURS. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




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