The full case caption appears at the
end of this opinion. ROVNER, Circuit Judge. Some litigants inpursuing settlement of their claims hold thebelief that they can change their mind at anytime before they actually sign the settlementagreement. As this case illustrates, thatperception is often unfounded in the law. The genesis of this case was a lawsuit byMichael Pohl, an aircraft inspector for UnitedAirlines, against United alleging violations ofthe Uniformed Services Employment andReemployment Rights Act (USERRA). The complaintincluded three counts, alleging discriminationbased on his military status (Count 1),retaliation (Count 2), and failure to properlycredit Pohl’s employee stock ownership (“ESOP”)account for time spent fulfilling his duties inthe Reserves (Count 3). Eventually, the partiesbegan to discuss settlement, although there is awide divergence between Pohl’s perception of thediscussions and that portrayed by his attorneyand opposing counsel. What is undisputed is thatthe attorneys engaged in a number of settlementdiscussions by telephone between December 15,1998, and March 8, 1999, and eventually informedthe court that they had reached a settlement ofthe entire case. Shortly thereafter, Pohl calledthe court himself, and expressed surprise wheninformed of the news of a full settlement. Thejudge convened a status conference, at which timePohl reviewed the written settlement proposal forthe first time and refused to sign it. Unitedthen brought a motion to enforce the settlement,which Pohl opposed on the ground that hisattorney did not have the authority to negotiatethe settlement. After holding an evidentiary hearing on theissue, the district court entered an opinionwhich granted enforcement of the settlement.Unfortunately, the court did not enter a separatejudgment in the case as is required under Fed. R.Civ. P. 58. At oral argument, however, theparties both agreed that the opinion by thedistrict court disposed of all issues, and thata separate judgment would merely have reflectedthe language in the opinion. Specifically, theyagreed that enforcement of the settlementrequired dismissal of the case with prejudice,and that the settlement agreement itself wouldnot have been incorporated into the judgment.Accordingly, under Bankers Trust v. Mallis, 435U.S. 381 (1978) we may proceed to consider theappeal despite the technical violation of R. 58. Pohl asserts that his attorney lacked theauthority to negotiate a settlement of his case.Issues regarding the formation, construction, andenforceability of a settlement agreement aregoverned by local contract law, Carr v. Runyan,89 F.3d 327 (7th Cir. 1996), and therefore wemust look to the law of Indiana in deciding thisclaim. As the Indiana Supreme Court held in Kovalv. Simon Telelect, 693 N.E.2d 1299, 1301 (Ind.1998), in order to bind a client to a settlement,an attorney must have either express, implied, orapparent authority, or must act according to theattorney’s inherent agency power. The Koval courtfurther held, however, that retention of anattorney does not, in itself, confer implied orapparent authority to settle. Id. The authorityto settle, therefore, derives from other actionsof the client with respect to the attorney orthird parties, including but not limited toexpress grants of actual authority. For instance,[t]he client may not intend for the attorney tosettle a claim but may nonetheless imply thatintention to the attorney. If so, the client isbound by a resulting settlement. Further, bothapparent authority and inherent agency power maybe created by actions of the client in itsdealings with third parties even if the attorneyknows there is no actual authority. Under thesecircumstances, the client is bound even if it isa breach of the attorney’s professionalobligations to make the commitment. Id. at 1303 n.6. The district court determinedthat Pohl’s attorney had actual authority tosettle, and we review that decision only forabuse of discretion. Carr, 89 F.3d at 331; Wilsonv. Wilson, 46 F.3d 660, 664 (7th Cir. 1995). Thecourt reached that conclusion after conducting anevidentiary hearing, and the history of thenegotiations and of the communications betweenPohl and his attorney establishes that thecourt’s determination is well-supported by therecord. The relevant history begins at a December 15,1998, settlement conference with Magistrate JudgeShields. The discussions turned to Count 3, andUnited agreed to look into whether the ESOPaccount had been properly credited. The othercounts were not discussed at any length. Pohlclaims that was because they could not reach aconsensus on those counts, but the attorneysmaintain that the talks centered on Count 3because the other counts had turned out to havelittle merit. It is of little import who isright. The parties left the settlement conferencewith the understanding that United would contactPohl’s attorney with the ESOP calculations.United did so, and agreed that the ESOP accounthad not been properly credited. The attorneysthen discussed language for a settlementagreement. Among other provisions, the settlementrequired United to: agree to credit Pohl’s ESOPaccount and provide documentation regarding thecredits; promise not to retaliate against Pohlfor filing the litigation; and pay Pohl’sreasonable attorneys’ fees. In return, Pohl woulddismiss the entire complaint, release United fromany liability for claims arising from the factsin the complaint except to the extent that thosefacts formed the basis for a claim under theAmericans With Disabilities Act, 42 U.S.C.sec.sec. 12101 et seq., and maintain theconfidentiality of the agreement. The billing records from Pohl’s attorneydocument ten phone calls between Pohl’s attorneyand either Pohl or his wife in the time periodfrom December 15, 1998, to March 8, 1999. Therecords further reveal that before or after eachone of those calls, Pohl’s counsel was in contactwith opposing counsel. On March 8, 1999, Pohl’sattorney sent Pohl a letter confirming “thesettlement of [Pohl's] current federal court caseagainst United Airlines.” It further discussesthe recovery of attorneys’ fees for the “militarydiscrimination suit,” and mentions that it doesnot include fees for a separate ADA claim thatwas not part of that case. According to Pohl’stestimony at the evidentiary hearing, hisreaction to the letter was “I thought, okay,great, they settled it, but what exactly is thesettlement? Show me the settlement and show methe proof. . . .” He claims that he still did notthink that the settlement included all of thecounts. Although he spoke with his attorney anumber of times after receipt of the letter,including a meeting with him, Pohl neverexpressed any concerns regarding the possibilityof a settlement, other than to request it inwriting and to request the documentationconcerning his ESOP account. As mentionedearlier, Pohl eventually refused to sign thesettlement when it was presented to him at thestatus conference. Based on that history, the district courtrejected Pohl’s claim that the settlement wasreached without authority from him. The courtspecifically relied on the objective evidence ofcommunications between Pohl and his counsel,which supported the testimony of Pohl’s counselthat Pohl was informed of each aspect of thesettlement and approved of each one. During thenegotiation period from December 15 until March8, there is an absolute correlation between phonecalls by Pohl’s counsel to opposing counsel, andcalls by Pohl’s counsel to Pohl on the same day.That supports the testimony of Pohl’s counselthat he constantly communicated the proposedsettlement terms to Pohl. Moreover, Pohl failedto register any objection with his counsel wheninformed by letter that the “case” was settled,even though he testified that when he first readthe March 8 letter confirming the settlement hethought it might include the whole case. In fact,his first reaction was “okay, great, they settledit;” that is hardly the reaction one would expectof someone who has not given his attorney theauthority to settle the case. Furthermore, as thecourt in Koval recognized, Pohl may be bound bythe settlement if he implied an intention tosettle the claim to his attorney, regardless ofwhether he actually intended to settle the claim.Koval, 693 N.E.2d at 1303 n.6. The testimony ofPohl’s attorney, which the court credited, wouldhave been enough to establish implied authorityto settle, even if express authority had not beenfound. In light of the record, the district courtcertainly did not abuse its discretion in holdingthat the settlement was obtained with actualauthority from Pohl and that Pohl was bound byit. Pohl counters, however, that he believed thathe had the ultimate authority to approve ordisapprove the settlement, and that he was notbound until he signed off on it. Pohl points toa clause in the retainer agreement with hiscounsel, which he altered ostensibly to retainthat authority. In Part X, the retainer agreementgranted the Firm the “Power of Attorney toexecute all documents connected with the claim .. . including . . . settlement agreements . . ..” Pohl added the handwritten language “with myauthorization” in the margin next to that clausebecause he and his wife “did not like the idea of[the Firm] having total authority to settle thismatter without [their] intervention.” Thatprovision, however, merely specifies that hisattorney may not settle the case without hisauthority. It does not require writtenauthorization of a settlement. As we have alreadynoted, the district court did not err in holdingthat Pohl authorized his attorney to settle thecase. That oral authorization satisfied thehandwritten clause, and provided his attorneywith the actual authority to settle the case.Pohl’s misplaced belief that he could back out ofthe settlement at any time prior to signing itdoes not entitle him to legal relief from asettlement negotiated with actual authority byhis attorney. Finally, Pohl attempts to raise a new argumenton appeal, that the June 2 settlement agreementcannot be enforced because even if there was ameeting of the minds regarding settlement onFebruary 24, the June 2 agreement did notproperly memorialize that agreement. Pohlconcedes that he never raised this issue in thedistrict court, but argues that he was thenarguing that there was no authority to enter intothe February 24 agreement, and he had no reasonat that time to argue that the June 2 agreementfailed to reflect the terms agreed to on February24. That argument is nonsensical. The issuebefore the district court was whether it shouldenforce the June 2 agreement. Pohl should haveraised at that time any claims that he had thatwould affect the enforceability of thatsettlement agreement. It certainly should havebeen foreseeable to Pohl that he could lose onhis argument regarding lack of authority, andthat he should present any alternative argumentsat that time. This circuit has held numeroustimes that arguments against the enforceabilityof settlement agreements are waived if not raisedin the district court. Carr, 89 F.3d at 333;Wilson, 46 F.3d at 667; Laserage Technology Corp.v. Laserage Laboratories, Inc., 972 F.2d 799, 804(7th Cir. 1992). In fact, even arguments raisedin the district court may be waived if notpresented in a timely manner, such as thoseraised for the first time in a motion forreconsideration. Wilson, 46 F.3d at 667. Pohl didnot raise this argument at any time in thedistrict court, and in fact expressly limited theissue before the court, stating: “I think we allunderstand that the only issue today is whetheror not attorneys for Mr. Pohl had the authorityto enter into this deal.” Transcript ofEvidentiary Hearing at 105. There are noextraordinary circumstances present to avoidwaiver. Laserage, 972 F.2d at 804. Accordingly,that argument is waived. We note, however, thatthe uncontradicted testimony of both attorneyswas that the written agreement simplymemorialized the terms agreed upon orally inFebruary, and thus his claim would have beenmeritless even if properly raised. Accordingly, the decision of the district court is AFFIRMED.
Michael Pohl v. United Airlines, Inc. In the United States Court of Appeals For the Seventh Circuit No. 99-4007 MICHAEL G. POHL,Plaintiff-Appellant, v. UNITED AIRLINES, INCORPORATED,Defendant-Appellee. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97 C 1246–Sarah Evans Barker, Chief Judge. Argued April 7, 2000–Decided May 10, 2000 Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.
