Roy, et al. v. NH DOC, et al.

2011 DNH 177

• Court: District Court, D. New Hampshire
• Decided: October 24, 2011
• Docket: 09-CV-075-SM
• Status: Published

Opinion

Roy, et a l . v . NH DOC, et a l . 09-CV-075-SM 10/24/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steven Roy, Charles Wolff, Eric Chaplin, Joel Smith, John Gosselin, Bruce Usher, William Johnson, and Prayer F. Farrow, Plaintiffs

v. Case N o . 09-cv-75-SM Opinion N o . 2011 DNH 177 Commissioner, New Hampshire Department of Corrections, et a l . , Defendants

O R D E R

Plaintiff, John Gosselin, moves to reconsider the court’s

order enforcing the settlement in this case as to him. That

motion is necessarily granted. The court’s order, dated February

1 4 , 2011, is vacated, and defendants’ motion to enforce

settlement will, as to Gosselin, be set down for an evidentiary

hearing.

Plaintiff argues, implausibly, that he only signed the

memorandum of understanding arising from the mediation sessions

in this case because he was “coerced” by the mediator. He adds

that, in signing, he thought that he would obtain the benefits of

a “gratuitous promise” by the defendants in settlement, without

having to give up his own causes of action, because the

memorandum of understanding did not explicitly require dismissal

of his case. The critical points in resolving his motion, however, are

not those, but these: 1 ) defendants expressly do not invoke

plaintiff’s procedural default in failing to timely object to the

motion to enforce settlement; 2 ) plaintiff, however

inarticulately, claims that he did not authorize his legal

counsel, Attorney Vogelman, to settle his case on the terms

described in the memorandum of understanding; and 3 ) plaintiff

asserts that h e , personally, did not agree to settle his case on

the terms described in the memorandum.

Settlement agreements are in the nature of contracts and so

are generally governed by state law, in this case New Hampshire

law. With regard to the enforcement of settlement agreements

entered into by legal counsel on behalf of a client, New

Hampshire law has been clear and firm for quite some time: “[i]t

is firmly established that action taken in the conduct and

disposition of civil litigation by an attorney within the scope

of his authority is binding on his client.” Halstead v . Murray,

130 N.H. 560, 565 (1988), quoting Manchester Hous. Auth. v . Zyla,

118 N.H. 268, 269 (1978). As the New Hampshire Supreme Court

noted, “[t]he authority of attorneys to make [settlement]

agreements is in practice never questioned. It is essential to

the orderly and convenient dispatch of business, and necessary

for the protection of the rights of the parties.” Id., quoting

Beliveau v . Amoskeag Mfg. Co., 68 N.H. 225, 226 (1895).

2 While New Hampshire law broadly favors enforcing settlement

agreements made by attorneys on behalf of clients, still “[i]f a

settlement agreement has in fact been reached by counsel, the

critical inquiry in determining its enforceability is whether the

lawyer was authorized by the client to make the agreement.” Bock

v . Lundstrom, 133 N.H. 161 (1990) (citation omitted). “Whether

an attorney is acting within the scope of his or her authority is

a question of fact.” Clark v . Mitchell, 937 F. Supp. 110, 114

(D.N.H. 1996), citing Norberg v . Fitzgerald, 122 N.H. 1080, 1082

(1982); Gauthier v . Robinson, 122 N.H. 365, 368 (1982).

Since plaintiff asserts that he did not authorize his

attorney to settle his claims on the terms described, and

defendants seek to enforce counsel’s (as well as plaintiff’s

personal) agreement to do s o , it is clear that plaintiff is

entitled to an evidentiary hearing to determine, as a factual

matter, whether he authorized his attorney to settle his case,

and, as well, whether he himself agreed to settle his case,

during the mediation process. See Michaud v . Michaud, 932 F.2d

77 (1st Cir. 1991).

Conclusion

Plaintiff’s motion to reconsider (document n o . 57) is

granted. The court’s order enforcing the settlement as to

plaintiff, dated February 1 4 , 2011, is vacated. The Clerk will

3 schedule an evidentiary hearing on the defendants’ motion to

enforce settlement as to this plaintiff. Defendants bear the

burden of showing that Attorney Vogelman settled the case on

plaintiff’s behalf and was authorized by plaintiff to do s o , o r ,

that plaintiff settled the case on his own behalf during the

mediation process.

SO ORDERED.

October 2 4 , 2011

cc: David P. Slawsky, Esq. Lawrence A . Vogelman, Esq. John Gosselin, pro se Danielle L. Pacik, Esq. Nancy J. Smith, Esq. Anne M. Edward, Esq.