                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-15343            MARCH 26, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                             D.C. Docket No. 3:09-cv-00873-HES-JBT



HOWARD S. PALMER,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                             versus

MANDARIN HOLIDAY MARINA & FISH CAMP, INC.,
a Florida corporation,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (March 26, 2012)



Before MARCUS, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:

      Plaintiff Howard Palmer’s boat was stolen from the slip he leased from

Defendant, Mandarin Holiday Marina & Fish Camp, Inc. (the Marina). The case

was set for trial on January 10, 2011, but several days prior to trial Howard Sutter

(attorney for Palmer) and John Webb (attorney for the Marina) negotiated a

settlement for $32,500. The proceeds of the settlement were not paid within sixty

days, and Palmer filed a Motion to Reopen Case and for Final Judgment to

Enforce Settlement (Motion to Reopen). In response, the Marina did not deny that

the matter had been settled. Rather, the Marina asserted that it was attempting to

have its own insurance company pay the settlement on his behalf.

      The district court held a hearing on May 4, 2011 to permit the Marina to

show cause as to why the Motion to Reopen should not be granted. Palmer and

his attorneys appeared at the hearing, but only Webb appeared for the Marina.

Neither Charles Andreu nor Lovie McEwen, co-owners of the Marina, appeared in

court. Webb admits that he informed them it was unnecessary for them to be at the

hearing. After the hearing, the district court entered a final judgment in the

amount of $32,500 in favor of Palmer.

      On July 29, 2011, the Marina, with new counsel, filed a Motion for Relief

from Judgment for Litigation Mistake and to Suspend Its Operation pursuant to

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Federal Rule of Civil Procedure Rule 60 (Motion for Relief). The Marina claimed

that Webb never had clear and unequivocal authority to enter into a settlement

agreement with Palmer. On September 14, 2011, the district court held a hearing

on the Motion for Relief, and the Marina presented three witnesses. The Marina’s

main witness was Andreu who testified that he did not give Webb authority to

settle the case. Webb testified that he did have authority to settle the case. The

district court in its order denying the Motion for Relief specifically found

Andreu’s testimony incredible. The district court did not give Andreu’s testimony

any credence because “[a]t worse Mr. Andreu was entirely untruthful, and at best

his age prevented him from remembering any details of his conversations with

Webb.” The district court then found that Webb’s testimony “was credible and

worthy of belief.” The Marina filed a motion for reconsideration, which the

district court also denied. The Marina then appealed the denial of the motion for

reconsideration.

      Although the Marina only filed a notice of appeal from the denial of the

motion from reconsideration, it is clear from its brief that it intends to appeal the

denial of the Motion to Reopen. “This Court has consistently said that an appeal

will be entertained where an overriding intent to appeal may be reasonably

inferred from the text of the notice and the defect has not materially misled the

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appellee.” Jones v. Chaney & James Constr. Co., 399 F.2d 84, 86 (5th Cir. 1968)

(quotations and citation omitted).1 Palmer readily admitted that he did not suffer

any prejudice by the Notice to Appeal; therefore, we review the district court’s

denial of the Motion to Reopen.

       We review a district court’s denial of a Rule 60(b) motion for an abuse of

discretion. Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1485 (11th

Cir. 1994). We only disturb a district court’s finding of facts if the findings were

clearly erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir. 2000).

State law governs the scope of an attorney’s authority to enter into a settlement

agreement. Murchison, 13 F.3d at 1485. Here, both parties agree that Florida law

applies. Under Florida law, “[s]ettlements are highly favored as a means to

conserve judicial resources, and will be enforced when it is possible to do so.”

Long Term Mgmt. Inc. v. Univ. Nursing Care Ctr., Inc., 704 So. 2d 669, 673 (Fla.

Dist. Ct. App. 1997). The party seeking to enforce the settlement agreement must

show that the attorney had clear and unequivocal authority to enter into the

agreement. Id. at 674.

       Here, the district court did not clearly err by not relying on Andreu’s


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down on or before
September 30, 1981.

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testimony. Nor did the district court err in relying mostly on Webb’s testimony.

Webb stated during the hearing that “At the time that the settlement discussions

were ripe for resolution, my instructions were . . . emanating from the insurance

company. The insurance company made representations to do your best and that

they would step in and provide coverage . . . My understanding of [Andreu’s]

position was, if the insurance company wants to settle it, let them settle it.” It was

not an abuse of discretion for the district court to credit Webb’s testimony that he

had clear authority to settle the case. Therefore, the district court properly denied

the Marina’s Motion to Reopen.

      AFFIRMED.




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