{ "id": 4191539, "name": "ERIC GOMEZ, Plaintiff-Appellant, v. BRENNAN JONES-WILSON, Defendant-Appellee, and CITY OF ALBUQUERQUE and ROBERT OSBORN d/b/a DISTRACTED BY D\u00c9COR, Defendants", "name_abbreviation": "Gomez v. Jones-Wilson", "decision_date": "2012-10-24", "docket_number": "Docket No. 31,085", "first_page": "190", "last_page": "198", "citations": [ { "type": "official", "cite": "2013-NMCA-007" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2008-NMCA-072", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003742 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0178-01" ] }, { "cite": "2005-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2551187 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0271-01" ] }, { "cite": "106 N.M. 705", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707322 ], "weight": 16, "year": 1988, "pin_cites": [ { "page": "706" }, { "page": "91" }, { "page": "707-08" }, { "page": "92-93" }, { "page": "707" }, { "page": "92" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "708" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0705-01" ] }, { "cite": "2004-NMCA-004", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77143 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0776-01" ] }, { "cite": "102 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580093 ], "weight": 7, "year": 1984, "pin_cites": [ { "page": "200" }, { "page": "1349" }, { "page": "1349" }, { "page": "195" }, { "page": "1344" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0194-01" ] }, { "cite": "92 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557265 ], "weight": 9, "year": 1979, "pin_cites": [ { "page": "525" }, { "page": "279" }, { "page": "525" }, { "page": "279" }, { "page": "526" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0524-01" ] }, { "cite": "92 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557194 ], "weight": 14, "year": 1979, "pin_cites": [ { "page": "438" }, { "page": "1029" }, { "page": "439" }, { "page": "1030" }, { "page": "440-41" }, { "page": "1031-32" }, { "page": "439" }, { "page": "1030", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1030", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1030", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0437-01" ] }, { "cite": "107 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597242 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "93" }, { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0091-01" ] } ], "analysis": { "cardinality": 943, "char_count": 25439, "ocr_confidence": 0.828, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1377182607943552 }, "sha256": "42e6b2617e1b29a90a0cc881251274bdd331f899d8ec693e7ef90cfa4f42d8c4", "simhash": "1:114b41521e82e111", "word_count": 3965 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "JAMES J. WECHSLER, Judge", "MICHAEL E. VIGIL, Judge" ], "parties": [ "ERIC GOMEZ, Plaintiff-Appellant, v. BRENNAN JONES-WILSON, Defendant-Appellee, and CITY OF ALBUQUERQUE and ROBERT OSBORN d/b/a DISTRACTED BY D\u00c9COR, Defendants." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} This case involves an alleged prelitigation oral settlement agreement between Plaintiffs attorney and the attorney for Penske Truck Leasing (Penske) and Defendant Jones-Wilson. While both attorneys believed that they had agreed to a settlement during their phone call, they differed on whether Plaintiff s attorney had agreed to settle the claims against both Penske and Jones-Wilson or whether he had agreed only to settle the claims against Penske. After Plaintiff filed suit and some discovery had been conducted, Jones-Wilson moved for enforcement of the alleged agreement, and the district court granted the motion. Because the evidence establishes that Plaintiff had not given his attorney the authority to settle with Jones-Wilson, we reverse.\nBACKGROUND\n{2} This case arises from a car accident causing injury to Plaintiff, allegedly due to Jones-Wilson\u2019s negligent operation of a truck that his employer, Defendant Robert Osborn d/b/a Distracted by D\u00e9cor, had rented from Penske. The truck was insured by a liability policy procured through Penske with per-person limits of $25,000, and Jones-Wilson was covered by this policy.\n{3} Before filing suit on Plaintiffs behalf, Plaintiffs attorney, Thell Thomas, attempted to negotiate a settlement with Penske\u2019s claims representative, Jennifer McCormick. In March 2009, Thomas sent McCormick a letter detailing his client\u2019s damages and outlining his legal theories. The letter concluded by offering \u201cto resolve all ongoing losses from this claim for $437,850[].\u201d\n{4} McCormick responded in April 2009 with a letter to Thomas \u201ctendering our limit of $25,000[] in bodily injury.\u201d McCormick\u2019s letter asked Thomas to have his client sign a release enclosed with the letter. The release stated that Plaintiff, in consideration of $25,000, \u201crelease[s] and forever discharge^] Penske ..., Old Republic Insurance Company & Gallagher Bassett Services, Inc., Distracted by D\u00e9cor[,] and . . . Jones[-]Wilson\u201d from all claims sustained as a result of the accident. Three days later, Thomas sent McCormick a letter rejecting her offer and continuing to extend his initial offer to settle for $437,850.\n{5} Nearly three months later,, on July 10, 2009, attorney Paul Yarbrough faxed Thomas a letter stating that he represented Penske and that he was \u201cnow handling this matter on their behalf.\u201d Yarbrough explained in his letter that McCormick had \u201cextended the full policy limits available to compensate your client based upon the liability insurance policy procured by .. . Jones-Wilson.\u201d Yarbrough\u2019s letter responded to Thomas\u2019s legal theories and concluded:\nI have been authorized to again offer the $25,000 policy limits to settle any and all claims against Penske and . . . Jones-Wilson per the terms of the release [McCormick] previously sent to you. This offer will remain open for a period of [thirty] days from today\u2019s date, and then it will be withdrawn.\nIt is apparent from this letter that Yarbrough was representing the interests of both Penske and Jones-Wilson.\n{6} On July 23, 2009, Thomas sent Yarbrough a letter following up on a phone conversation between the two attorneys that apparently took place following Thomas\u2019s receipt of Yarbrough\u2019s July 10 letter. The letter stated:\nAs we discussed, you were going to determine the amount of insurance coverage available through Penske for our client[.] You also indicated that you were going to determine whether the driver of the Penske vehicle, . . . Jones-Wilson, has his own property and casualty insurance.\n{7} According to the evidence in the record, the next event that occurred was a phone conversation between Thomas and Yarbrough on August 11, 2009, which was thirty-two days from the date of Yarbrough\u2019s letter, two days after the expiration date the Yarbrough letter placed on its settlement offer. The only evidence in the record as to the substance of this conversation is found in affidavits later filed by Yarbrough and Thomas.\n{8} Yarbrough\u2019s affidavit disclosed the negotiations that had taken place between McCormick and Thomas prior to Yarbrough\u2019s involvement in the case. Yarbrough attached to his affidavit McCormick\u2019s letter to Thomas and Thomas\u2019s response, both of which we have described above. The affidavit also described and attached Yarbrough\u2019s July 10 letter to Thomas. The affidavit then stated, \u201cOn August 11, 2009, Mr. Thomas verbally accepted the offer of [$]25,000 in full and final compromise settlement of [Plaintiff\u2019s] claims against Penske and . . . Jones-Wilson arising from the November 6, 2008[,] accident.\u201d This is all that the affidavit said about the August 11 conversation. The affidavit went on to state that Yarbrough requested a settlement check and mailed the release to Thomas on August 25, 2009. The affidavit concluded, \u201cTo date, [Plaintiff] has failed to provide his signed release of claims to my office as agreed to by his counsel.\u201d\n{9} In contrast, Thomas\u2019s affidavit stated that he had a phone conversation with Yarbrough on August 11, 2009, \u201cregarding a partial settlement of [Plaintiff\u2019s] claims.\u201d The affidavit went on to state:\nIt was my understanding that I agreed to settle all liability against Penske, for any claims of negligent entrustment against Penske, if any were revealed through the course of discovery. And it was my understanding that the agreement released Penske as the primary insurer. It was not my understanding that I was releasing . . . Jones-Wilson, and his personal auto policy. It was a complete surprise to me when the release arrived and it released ... Jones-Wilson, because I had never agreed to release . . . Jones-Wilson. . . . For the reasons stated, it was never my understanding that these settlement discussions were an acceptance of.. . Yarbrough\u2019s written offer extended in his July 10, 2009 [,] letter. Additionally... Yarbrough\u2019s written offer had expired.\nAccording to Plaintiff\u2019s pleadings, when Thomas received the proposed release from Yarbrough, he immediately called Yarbrough \u201cand informed him that there was not, and never had been, an agreement to release . . . Jones-Wilson individually.\u201d\n{10} In October 2009, Thomas filed suit on Plaintiffs behalf against Jones-Wilson, Distracted by D\u00e9cor, and the City of Albuquerque, alleging that the negligence of each defendant contributed to cause Plaintiffs injuries in the November 2008 car accident. Jones-Wilson, now represented by attorneys other than Yarbrough, answered the complaint but did not raise any affirmative defenses claiming that Plaintiffs claims against him had been settled. Indeed, Jones-Wilson initiated discovery by serving Plaintiff with interrogatories and a request for production.\n{11} Nearly four months after Plaintiff filed his complaint, Jones-Wilson filed a motion to enforce an alleged settlement agreement, claiming that Thomas had verbally accepted the settlement offer made in Yarbrough\u2019s July 10,2009, letter. Attached to the motion were Yarbrough\u2019s affidavit and its attachments, as described above. Plaintiff responded, denying that a settlement agreement had been reached, and he attached to his response Thomas\u2019s affidavit.\n{12} Between the filing of Jones-Wilson\u2019s motion and the filing of Plaintiffs response, Plaintiff filed a first amended complaint adding Robert Osborn as a defendant, doing business as Distracted by D\u00e9cor. Jones-Wilson\u2019s answer to the first amended complaint asserted, for the first time, the affirmative defenses of accord and satisfaction and \u201ca prior settlement agreement entered into between Plaintiff and Penske.\u201d\n{13} The district court held a hearing on Jones-Wilson\u2019s motion. The parties did not present any evidence at the hearing (although defense counsel apparently provided the court with a copy of the McCormick release referenced in Yarbrough\u2019s July 10 letter), and they relied exclusively on the exhibits attached to their pleadings. At the conclusion of the hearing, the district court stated that the proposed release and Yarbrough\u2019s letter \u201cactually spell[ed] out what [were] the terms on the table, and having accepted in my mind those terms, I believe there\u2019s an enforceable agreement as between [P]laintiff and Penske and [Jones-Wilson] in this matter.\u201d\n{14} Plaintiff then filed a motion to reconsider and submitted additional exhibits, including the affidavit of Plaintiff. In the affidavit, Plaintiff attested that in August 2009, he \u201cdecided to accept what [he] understood to be an offer of settlement of $25,000 for [his] claims against Penske.\u201d He stated,\u201cIn authorizing ... Thomas to settle my claims against Penske for $25,000, I did not intend to settle my claims against . . . Jones-Wilson.\u201d He concluded, \u201cI never authorized . . . Thomas to settle my claims against . . . Jones-Wilson for $25,000.\u201d\n{15} The district court held a hearing and considered all of the documentary evidence that had been presented in connection with the initial motion to enforce the alleged settlement and with the motion for reconsideration. The court took the matter under advisement and ultimately denied Plaintiff\u2019s motion for reconsideration. Plaintiff appeals.\nDISCUSSION\n{16} Plaintiff makes five arguments for reversal: (1) Jones-Wilson lacked standing to enforce the alleged settlement agreement because he was not a party to the agreement; (2) the alleged agreement was precluded by NMSA 1978, Section 66-5-210 (1983), which, in Plaintiffs view, prohibits anything other than a written settlement agreement between parties involved in a motor vehicle accident; (3) New Mexico courts should adopt a policy precluding enforcement of any oral settlement agreement not reduced to writing and signed by both parties; (4) the alleged agreement was unenforceable because Plaintiff had not authorized Thomas to settle his claims against Jones-Wilson; and (5) the district court erroneously found mutual assent without any objective evidence supporting that determination. Because we conclude that Plaintiff never authorized Thomas to settle the claims against Jones-Wilson, we need not address Plaintiffs other arguments.\nStandard of Review\n{17} The district court made findings of fact in this case based solely on documentary evidence. \u201cWhere an issue to be determined rests upon the interpretation of documentary evidence, an appellate court is in as good a position as the trial court to determine the facts and draw its own conclusion.\u201d Maestas v. Martinez, 107 N.M. 91, 93, 752 P.2d 1107, 1109 (Ct. App. 1988). We therefore review the evidence to determine whether the district court\u2019s findings were correct.\nAttorney\u2019s Authority to Settle\n{18} We begin with New Mexico law addressing the scope of an attorney\u2019s authority to settle a case on behalf of his or her client. Our Supreme Court discussed the issue in Augustus v. John Williams & Assoc., Inc., where the parties\u2019 attorneys exchanged settlement offers and then reached an oral settlement agreement at a later meeting. 92 N.M. 437, 438, 589 P.2d 1028, 1029 (1979). After the attorneys prepared the settlement documents, the plaintiff\u2019s attorney notified the defendant\u2019s attorney that his client refused to sign. Id. At the hearing on the defendant\u2019s motion to enforce the alleged agreement, the plaintiff\u2019s attorney \u201ctestified that he had no authority to enter into a final settlement agreement.\u201d Id. at 439, 589 P.2d at 1030.\n{19} The district court refused to enforce the alleged agreement, and the Supreme Court affirmed. Id. at 440-41, 589 P.2d at 1031-32. The Court stated that the party seeking enforcement of a settlement agreement \u201chas the burden of establishing assent by the opposing party.\u201d Id. at 439, 589 P.2d at 1030 (internal quotation marks and citation omitted). While a client may authorize his or her attorney to settle a claim, \u201csuch authority must be clear and unequivocal.\u201d Id. (internal quotation marks and citation omitted). \u201cAn unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client.\u201d Id. (internal quotation marks and citation omitted).\n{20} Our Supreme Court applied the same principles in Bolles v. Smith, 92 N.M. 524, 591 P.2d 278 (1979), where the issue was \u201cwhether the oral settlement agreement entered into by [the] petitioner\u2019s attorney on [the] petitioner\u2019s behalf can be enforced, notwithstanding the fact that it was rejected by [the] petitioner prior to its approval by the court.\u201d Id. at 525, 591 P.2d at 279. The Court reversed the district court\u2019s order enforcing the settlement agreement entered into by the petitioner\u2019s attorney on two grounds. Id. First, the Court held that the Release Act, NMSA 1978, Sections 41-1-1 to -2 (1971), applied to prohibit the settlement while the petitioner was under the care of a physician. Bolles, 92 N.M. at 525, 591 P.2d at 279. Second, and of more relevance to the present case, the Court held that there was no enforceable agreement to settle because the attorney did not have specific authority to settle. Id. at 526, 591 P.2d at 280. The Court stated that \u201c[i]n order for an attorney to bind a client to a settlement agreement, he must have specific authority to do so, unless there is an emergency or some overriding reason for enforcing the settlement despite the attorney\u2019s lack of specific authority.\u201d Id.; see Restatement (Third) of The Law Governing Lawyers \u00a7 22(1) (2000) (stating that \u201cthe following and comparable decisions are reserved to the client except when the client has validly authorized the lawyer to make the particular decision: whether and on what terms to settle a claim\u201d); Restatement \u00a7 22, cmt. c (stating that \u201c[t]his Section forbids a lawyer to make a settlement without the client\u2019s authorization\u201d).\n{21} Following Augustus and Bolles, this Court decided Gonzales v. Atnip, 102 N.M. 194, 692 P.2d 1343 (Ct. App. 1984). In contrast to the circumstances in Augustus and Bolles, it was undisputed in Gonzales that the plaintiff had specifically authorized his attorney to enter into the settlement agreement. 102 N.M. at 200, 692 P.2d at 1349. This Court distinguished the facts before it from Bolles and held that \u201ca settlement of a lawsuit by an attorney with specific authority to settle is binding on the client. Thus, the settlement in this case is binding on [the plaintiff].\u201d Gonzales, 100 N.M. at 200, 692 P.2d at 1349.\n{22} The Court in Gonzales also applied a burden of persuasion that initially appears to be different from that imposed in Augustus. While Augustus stated that the party seeking enforcement of an oral settlement agreement \u201chas the burden of establishing assent by the opposing party,\u201d 92 N.M. at 439, 589 P.2d at 1030 (internal quotation marks and citation omitted), the Court in Gonzales asserted that \u201c[a] party seeking relief from ... a settlement has the burden of persuasion.\u201d 102 N.M. at 195, 692 P.2d at 1344. These holdings can be harmonized. Augustus and Bolles teach that an attorney may not settle a client\u2019s claim without specific authorization from the client and that if there is an issue as to whether there was authorization, the party seeking enforcement of an alleged settlement agreement has the burden of establishing authorization. Gonzales holds that in a case where it is undisputed that client authorization existed, the burden of persuasion is on the party seeking to escape from the enforceability of an authorized settlement agreement.\n{23 } The circumstances in the present case are most similar to those in Augustus and Bolles. Indeed, there is nothing in the record disputing Plaintiffs affidavit attesting that he had not authorized Thomas to settle his claims against Jones-Wilson. Thus, Thomas did not have specific authority to assent to any settlement offer made in connection with the claims against Jones-Wilson, and Plaintiff argues that, as a result, the alleged agreement between Thomas and Yarbrough \u201cis of no effect and may be repudiated or ignored and treated as a nullity.\u201d Augustus, 92 N.M. at 439, 589 P.2d at 1030 (internal quotation marks and citation omitted). However, Jones-Wilson argues, and the district court held, that Thomas had apparent authority to settle Plaintiffs claims against Jones-Wilson.\n{24} Before considering whether apparent authority existed in this case, we first address Jones-Wilson\u2019s argument urging us to disregard Plaintiff\u2019s affidavit and the contention that Thomas lacked specific authority to settle the claims against Jones-Wilson. While Jones-Wilson\u2019s argument is somewhat unclear, it appears that he is arguing that Plaintiff waived consideration of Thomas\u2019s lack of authority because he did not raise the issue until he filed his motion for reconsideration. Although Jones-Wilson is correct that Plaintiff\u2019s argument regarding the absence of authority to settle came late in the proceedings, the district court considered Plaintiff\u2019s argument and affidavit and ruled on the merits. \u201cAlthough a reviewing court generally will not review a claim of error unless the appellant timely objected below, it will do so when the trial court addressed the untimely objection on the merits.\u201d Garcia v. Jeantette, 2004-NMCA-004, \u00b6 13, 134 N.M. 776, 82 P.3d 947.\nApparent Authority\n{25} The district court made the following finding on the issue of Thomas\u2019s authority to settle Plaintiff\u2019s claims against Jones-Wilson:\nIn the [m]otionfor [rjeconsideration, Plaintiff includes an affidavit wherein he states that he did not give his lawyer authority to settle with Penske under terms that included a release of . . . Jones-Wilson. While this may be true, this fact was not communicated to Penslce\u2019s lawyer. In fact, Plaintiffs lawyer conducted himself in a manner that suggested that he had full authority to settle with Penske. Where a lawyer presents himself as having apparent authority to settle a case, the opposing party\u2019s lawyer is entitled to rely upon his apparent authority.\nIn support of this finding, the court cited several cases from other jurisdictions and one New Mexico case, Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc., 106 N.M. 705, 749 P.2d 90 (1988).\n{26} In Navajo Tribe, the parties reached a settlement agreement on the date trial was scheduled. Id. at 706, 749 P.2d at 91. The agreement was read into the record with all parties, including a representative of the tribe, approving the terms of the settlement in open court. Id. About six months later, the tribe repudiated the settlement, and the defendants asked the district court to enter a stipulated settlement. Id. The district court enforced the settlement, and our Supreme Court affirmed. Id. at 707-08, 749 P.2d at 92-93. The Court stated that \u201c[wjhile an attorney\u2019s authority to settle must be expressly conferred, it is presumed that an attorney of record who settles his client\u2019s claim in open court has authority to do so unless rebutted by affirmative evidence to the contrary.\u201d Id. at 707, 749 P.2d at 92. Because the tribe presented no testimony from either its attorney or its representative establishing that the attorney had no authority to settle, the Court concluded that enforcement of the settlement was proper. Id.\n{27} In addition, the Court concluded that even if the attorney did not have express authority to settle, she had apparent authority. The Court stated that \u201c[ajpparent authority is that authority which a principal holds his agent out as possessing or permits him to exercise or to represent himself as possessing under such circumstances as to estop the principal from denying its existence.\u201d Id. (internal quotation marks and citation omitted). In the attorney-client context, therefore, \u201ca principal must hold out his attorney as possessing authority to act on his behalf beyond procedural matters.\u201d Id. In Navajo Tribe, the tribe\u2019s representative stated in open court that he understood the settlement and approved it. Id. at 708, 749 P.2d at 93. This acquiescence to the terms of the settlement clothed the attorney with the apparent authority to settle on the tribe\u2019s behalf. Id.\n{28} Turning to the district court\u2019s order in the present case, we conclude that the court misapprehended the concept of apparent authority. The court found that Thomas \u201cconducted himself in a manner that suggested that he had full authority to settle with Penske\u201d contrary to the holding in Navajo Tribe, which established that it is the client\u2019s conduct \u2014 not the attorney\u2019s \u2014 that gives rise to apparent authority. In Navajo Tribe, in contrast to the circumstances in the present case, the tribe\u2019s representative heard the terms of the agreement as they were read into the court record and stated his approval of those terms.\n{29} This view of apparent authority \u2014 that it is the client\u2019s conduct that is critical' \u2014 is supported by the Restatement (Third) of The Law Governing Lawyers, which our appellate courts have accepted as a persuasive statement of the law. See State v. Gonzales, 2005-NMSC-025, \u00b6 38, 138 N.M. 271, 119 P.3d 151 (adopting the Restatement\u2019s statement of an ethical rule applicable to prosecutors); Bassett v. Sheehan, 2008-NMCA-072, \u00b6 9, 144 N.M. 178, 184 P.3d 1072 (relying on the Restatement for the proposition that a court may decide in the context of a motion for summary judgment whether a lawyer has breached the duty owed to a client, even though this is usually a question of fact). Section 27 of the Restatement states:\nA lawyer\u2019s act is considered to be that of the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the client\u2019s (and not the lawyer\u2019s) manifestations of such authorization.\nThe Restatement\u2019s comments elaborate on this principle, stating that \u201cauthority arising from the act of retention [of the lawyer] alone does not extend to matters, such as approving a settlement, reserved for client decision. . . . To create apparent authority in such matters, the client must do more than simply retain the lawyer[.]\u201d Id. cmt. a. In addition,\n[w]hen a lawyer purports to enter a settlement binding on the client but lacks authority to do so, the burden of inconvenience resulting if the client repudiates the settlement is properly left with the opposing party, who should know that settlements are normally subject to approval by the client and who has no manifested contrary indication from the client.\nId. cmt. d.\n{30} In the case before us, there was no evidence in the record of any conduct or communication by Plaintiff that was known to Jones-Wilson\u2019s attorney, much less any conduct or communication suggesting that Plaintiff had clothed Thomas with the apparent authority to settle with Jones-Wilson for $25,000. While there was considerable evidence regarding Thomas\u2019s conduct, his conduct is not determinative. Consequently, the district court\u2019s finding that Thomas had the apparent authority to settle with Jones-Wilson has no evidentiary support.\n{31} The district court also erroneously placed the burden ofpersuasion on Plaintiff to establish that he did not create apparent authority in Thomas to settle with Jones-Wilson. The district court\u2019s finding suggested that the absence of authority had to be \u201ccommunicated\u201d to Jones-Wilson\u2019s attorney and that without such communication, Thomas\u2019s apparent authority would be presumed. As we have already discussed, when the existence of authority to settle is disputed, the burden falls on the party seeking enforcement of the alleged settlement agreement. See Augustus, 92 N.M. at 439, 589 P.2d at 1030.\n{32} Placing the \u201cburden of inconvenience,\u201d Restatement \u00a7 27, cmt. d, on Jones-Wilson under these circumstances is not unreasonable. Oral settlement negotiations provide fertile ground for miscommunication or misunderstanding, and it is not surprising that two parties to a phone call would have different perceptions of the agreed-upon terms. As a result, it makes sense that the law requires some affirmative indication from each client that his or her attorneys had the appropriate authority to settle before a settlement agreement is enforced.\n{33} In conclusion, we hold that Plaintiffs unrefuted affidavit established that Thomas lacked the express authority to settle Plaintiff\u2019s claims against Jones-Wilson. In claiming that Thomas had the apparent authority to settle those claims, the burden of persuasion fell on Jones-Wilson to come forward with evidence that Plaintiff, rather than Thomas, conducted himself in a way that created the appearance that Thomas had settlement authorization. Jones-Wilson failed to present such evidence, and the alleged settlement agreement is therefore unenforceable.\nCONCLUSION\n{34} For the foregoing reasons, we reverse the district court\u2019s order enforcing the alleged settlement agreement and remand for proceedings consistent with this Opinion.\n{35} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nMICHAEL E. VIGIL, Judge", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Fine Law Firm Mark Fine Albuquerque, NM for Appellant", "Dines & Gross, P.C. Robert A. Corchine Steven J. Leibel Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-007\nFiling Date: October 24, 2012\nDocket No. 31,085\nERIC GOMEZ, Plaintiff-Appellant, v. BRENNAN JONES-WILSON, Defendant-Appellee, and CITY OF ALBUQUERQUE and ROBERT OSBORN d/b/a DISTRACTED BY D\u00c9COR, Defendants.\nFine Law Firm Mark Fine Albuquerque, NM for Appellant\nDines & Gross, P.C. Robert A. Corchine Steven J. Leibel Albuquerque, NM for Appellee" }, "file_name": "0190-01", "first_page_order": 206, "last_page_order": 214 }