Walson v. Walson

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia

FAYE E. WALSON
OPINION BY
v. Record No. 1701-00-4 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 18, 2001
ROBERT C. WALSON

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

Betty A. Thompson (Paul Varriale, on brief),
for appellant.

Eric F. Schell for appellee.

Faye E. Walson (wife) appeals a decision of the trial court

finding her bound by an agreement signed by her attorney and

subsequently incorporated by reference into her final decree of

divorce from Robert C. Walson (husband). She contends the trial

court erred in determining that her attorney had apparent

authority to sign the agreement on her behalf and, thus,

compromise her claim. 1 We hold that the trial court's factual

finding that wife's attorney had apparent authority is

1
For purposes of this appeal, we have consolidated wife's
interrelated first three questions presented. Furthermore, we
do not address wife's fourth question presented because she did
not raise at the trial level her claim therein that the trial
court misplaced upon her the burden of showing that she apprised
husband or his attorney of any restrictions on her attorney's
authority. See Rule 5A:18.
unsupported by the evidence in the record and, accordingly,

reverse the trial court's judgment and remand this case for

further proceedings. Because we conclude that the trial court

erred in finding, as a matter of fact, that, under the

circumstances of this case, wife's attorney had apparent

authority to execute the agreement on wife's behalf, we do not

address the issue of whether an attorney may, as a matter of law,

bind his or her client to a written property settlement agreement
by apparent authority.

I. BACKGROUND

We view the evidence and all reasonable inferences fairly

deducible therefrom in the light most favorable to husband, the

party prevailing below. See Stockdale v. Stockdale, 33 Va. App.

179, 181, 532 S.E.2d 332, 333 (2000). So viewed, the evidence

established that husband initiated divorce proceedings on

September 3, 1998. On October 13, 1998, the trial court entered

a consent pendente lite order reflecting the terms of an

agreement executed by the parties when they separated. The

trial court set a trial date for July 7, 1999. On May 27, 1999

wife and her attorney, Richard Byrd, met in Byrd's conference

room with husband and his attorney, Eric Schell, to negotiate a

settlement of the issues arising from the dissolution of the

parties' marriage. Based on the discussions at that conference,

Byrd submitted a letter on behalf of wife to Schell on June 23,

1999 setting forth wife's proposals for a settlement.

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Thereafter, Byrd drafted and submitted to Schell a formal

eighteen-page property settlement agreement reviewed and

approved, but not executed, by wife. That draft agreement

included designated spaces at the end of the document for the

parties' respective signatures and attestation clauses for

notarization of those signatures. The paragraph immediately

preceding the spaces for the parties' signatures read:

IN WITNESS WHEREOF, the parties hereto,
after free and full discussion of the terms
contained herein and with an understanding
of the meaning and intent of those terms and
provisions, have this day first mentioned
placed their signatures and seals upon this
Agreement and by so signing they hereby
agree with all the terms and provisions
thereof.

Husband rejected the proposed property settlement agreement.

Following a continuance of the trial date to November 1,

1999, Byrd drafted and submitted to Schell a second formal

eighteen-page property settlement agreement reviewed and

approved, but not executed, by wife. The second draft, like the

first proposed agreement, provided spaces for the parties'

signatures and for notarization of those signatures. It also

included a paragraph, immediately preceding the signature lines,

that was identical to the paragraph quoted above from the first

proposed agreement. Husband did not accept the second proposed

property settlement agreement.

No final agreement having been reached, a second

negotiation meeting was held on October 27, 1999. Husband,

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Schell, and Byrd attended the meeting in the conference room at

the offices of Byrd's firm. Wife chose not to attend the

meeting, "because she didn't want to be in the same room with

her husband." She instead made herself available to Byrd by

telephone. Byrd left the meeting and telephoned wife from his

private office periodically throughout the meeting.

Byrd testified that, during the meeting, he, Schell, and

husband went item-by-item through the issues and that he

discussed with wife on the telephone everything he discussed

with Schell and husband. By Byrd's count, he spoke with wife

"every ten minutes" during the meeting, at least ten times.

"[T]here were," according to Byrd, "various offers back and

forth to settle the issues."

After approximately four hours of negotiations, Byrd

returned to the conference room after speaking with wife and

told Schell and husband that wife had agreed to sell the house

and divide the net proceeds evenly. After conferring with

husband, Schell replied that wife would have to be responsible

for one-half of the mortgage payment, pending sale of the house.

Byrd responded, "I didn't talk to her about that. I don't have

agreement on it. I'm going to have to get back to her, and see

if she will." Byrd then left the conference room to call the

wife regarding that issue, which, in Byrd's opinion, "was the

only unsettled part of the negotiations, at that moment." While

speaking on the phone with wife, Byrd became upset because he

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thought wife was changing her mind about issues that were

already settled and raising other matters that were beyond the

focus of the current negotiation. He put the phone down, threw

a cup through the wall of his office, and left the building

without returning to the meeting.

The next day, having received an e-mail from wife that he

believed expressly authorized and directed him to settle the

case, Byrd drafted, signed, and transmitted to Schell the subject

two-page final settlement agreement entitled "Agreement: Walson

v. Walson." Wife did not see the agreement before Byrd signed it

and sent it to Schell. Prior to signing and sending the

agreement, Byrd had attempted to call wife three times to review

the document he had prepared, but she did not return his calls.

Following transmission of the document to Schell, counsel

notified the court that the case was settled and could be removed

from the trial docket.

The following day, wife went to Byrd's office expecting to

review a draft of the "fully typed out property settlement

agreement." Instead, she was given a copy of the agreement

signed on her behalf by Byrd. That agreement, according to wife,

did not represent what she had agreed to, did not contain many of

the items in the earlier proposed property settlement agreements

that she expected to be included in the final agreement, and was

signed by Byrd without her authority or consent. Wife testified

that, had she, as expected, been given

the opportunity to review the agreement signed by Byrd, she would

not have approved or signed it.

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 On November 11, 1999 wife filed an objection to entry of a

final decree of divorce, wherein she challenged the agreement

signed by Byrd as not being a full and final agreement of all

property distribution issues arising out of the marriage. An

ore tenus hearing on wife's objection was held on April 19,

2000. The trial court held that, although wife had not

expressly or impliedly authorized Byrd to execute the agreement,

wife was bound by the terms of the agreement because Byrd had

apparent authority to execute the agreement on her behalf. In

finding that Byrd had apparent authority to sign the document,

the court relied on the Supreme Court's decision in Singer

Sewing Machine Co. v. Ferrell, 144 Va. 395, 132 S.E. 312 (1926).

The trial court entered an order memorializing its ruling on May

23, 2000.

A final decree of divorce, affirming and incorporating the

agreement, was entered by Judge M. Langhorne Keith on June 22,

2000. Wife now appeals from the trial court's order of May 23,

2000, entered by Judge Arthur B. Vieregg, Jr., finding her bound

by the settlement agreement signed by her attorney.

II. ANALYSIS

The sole issue on appeal is whether the trial court erred in

finding Byrd had apparent authority to execute the subject

agreement on wife's behalf. 2 We will affirm the trial court's

2
Because neither wife nor husband challenges the trial
court's finding that Byrd did not have express or implied

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decision unless it was plainly wrong or without evidence to

support it. See Lapidus v. Lapidus, 226 Va. 575, 580, 311

S.E.2d 786, 789 (1984) (noting that a court's finding based on

evidence heard ore tenus will not be disturbed unless plainly

wrong or unsupported by the evidence).

Husband argues that Singer controls the outcome of this

case. The Virginia Supreme Court stated in Singer that

"it is well settled that while a compromise
made by an attorney without authority or in
violation of his client's commands will not
be enforced to the client's injury, yet if
the authority of the attorney be apparent,
then his client will be bound, unless the
compromise possessed such elements of
intrinsic unfairness as to provoke inquiry
or imply fraud."

144 Va. at 403-04, 132 S.E. at 315 (quoting Black v. Rogers, 75

Mo. 441 (1882)). The Court went on to describe apparent

authority as follows:

"[A]s between the principal and agent and
third persons, the mutual rights and
liabilities are governed by the apparent
scope of the agent's authority, which is
that authority which the principal has held
the agent out as possessing, or which he has
permitted the agent to represent that he
possesses, and which the principal is
estopped to deny. The apparent authority,
so far as third persons are concerned, is
the real authority, and when a third person
has ascertained the apparent authority with
which the principal has clothed the agent,
he is under no obligation to inquire into
the agent's actual authority."

authority to sign the agreement on wife's behalf, we will not
address those two bases of authority.

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Id. at 404, 132 S.E. at 315 (quoting J.C. Lysle Milling Co. v.

S.W. Holt & Co., 122 Va. 565, 571-72, 95 S.E. 414, 415 (1918)).

The Court further explained:

"Where one, without objection, suffers
another to do acts which proceed upon the
ground of authority from him, or by his
conduct adopts and sanctions such acts after
they are done, he will be bound, although no
previous authority exists, in all respects
as if the requisite power had been given in
the most formal manner. If he had justified
the belief of a third party that the person
assuming to be his agent was authorized to
do what was done, it is no answer for him to
say that no authority had been given, or
that it did not reach so far, and that the
third party had acted upon a mistaken
conclusion. He is estopped to take refuge
in such a defense. If a loss is to be
borne, the author of the error must bear it.
If business had been transacted in certain
cases, it is implied that the like business
may be transacted in others. The inference
to be drawn is that everything fairly within
the scope of the powers exercised in the
past may be done in the future, until notice
of revocation or disclaimer is brought home
to those whose interests are concerned.
Under such circumstances, the presence or
absence of authority in point of fact is
immaterial to the rights of third persons
whose interests are involved. The seeming
and reality are followed by the same
consequences. In either case the legal
result is the same."

Id. at 404-05, 132 S.E. at 315 (quoting Bronson v. Chappell, 79

U.S. 681, 683 (1870)).

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 Here, there is no suggestion that fraud was practiced on

wife in reaching the settlement agreement or that the agreement

executed by Byrd was intrinsically unfair. Therefore, husband

argues, if wife, by word or act, clothed Byrd with apparent

authority to execute the settlement agreement on her behalf,

husband and Schell could rely on such authority regardless of

whether Byrd had wife's actual authority, and wife would be bound

by the agreement.

Viewing the record in the light most favorable to husband,

we find it devoid of any verbal or nonverbal representations by

wife that could reasonably lead husband or Schell to conclude

that Byrd had wife's authority to sign the final property

settlement agreement on her behalf. The record discloses no

direct communications between wife and husband or between wife
3
and Schell regarding Byrd's authority. Through her conduct,

wife plainly held Byrd out as possessing the authority to conduct

settlement negotiations on her behalf. She permitted him to

attend the two negotiation meetings and to relay her offers and

counteroffers to husband and Schell, as well as her rejections

and acceptances of husband's offers and counteroffers. However,

nothing in the record indicates that

3
The record contains no evidence from husband or his
attorney as to how they ascertained the apparent authority with
which they assert wife clothed Byrd. Neither testified at the
hearing.

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wife held out Byrd as possessing the authority to execute the

final property settlement agreement on her behalf.

At the ore tenus hearing in this case, Byrd recognized that

wife "never gave [him] any authority to settle the case without

her consent." Wife, rather than Byrd, was clearly in charge of

the negotiations. It was unmistakably evident at the second

negotiation meeting that Byrd had no authority to act on his own.

He could not accept husband's counteroffer without first calling

wife to obtain her assent.
Moreover, the two draft formal property settlement

agreements sent by Byrd, with wife's approval, to Schell in the

past were indicative of Byrd's limited authority. Those proposed

agreements, meant to be signed by the parties, clearly manifested

to husband and Schell wife's intention that she, rather than

Byrd, would sign any final settlement agreement.

In Singer, the Supreme Court held that plaintiff's attorney

had apparent authority to settle the case because he "consulted

with his client relative to the compromise in the presence of the

defendant and returned with assent." 144 Va. at 404, 132 S.E. at

314. In the instant case, wife was not in the presence of

husband and his attorney when Byrd consulted with her relative to

the settlement or when Byrd returned with her purported assent.

Indeed, from Schell's standpoint, not only was Byrd's

consultation with wife not in Schell's presence, Byrd's belated

return with wife's alleged assent came only after Byrd had left

the negotiation meeting the previous night to call wife and had,

without explanation, never returned to the meeting. We believe

that, under such circumstances, husband and Schell's reliance on

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Byrd's alleged authority to execute the settlement agreement was

not reasonably justified and, thus, was at their own peril.

We hold, therefore, that the trial court's finding that Byrd

had apparent authority to sign the settlement agreement on wife's

behalf is not supported by the evidence. Accordingly, we reverse

the trial court's decision finding wife bound by the property

settlement agreement signed by her attorney and remand the case

for further proceedings.

Reversed and remanded.

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Annunziata, J., dissenting.

I respectfully dissent from the majority's decision. I

find that the evidence in this case sufficiently supports the

trial court's finding that wife clothed her attorney with

apparent authority to enter into a binding final settlement

agreement on her behalf. In the context of an attorney's

authority to bind a client to an agreement or stipulation,

traditional agency principles apply. See Edwards v. Born, Inc.,

792 F.2d 387, 389 (3rd Cir. 1986); see also Virginia Electric &

Power Co. v. Bowers, 181 Va. 542, 547, 25 S.E.2d 361, 363 (1943)

(noting that "an attorney is the agent of his client").

Accordingly, the attorney/agent has three types of authority

under which action may be taken on behalf of the

client/principal: express, implied, and apparent. Restatement

(Second) of Agency § 7, 8 (1958).

A client may be bound where the attorney acted with the

apparent authority to bind the client. See Singer Sewing

Machine Co. v. Ferrell, 144 Va. 395, 132 S.E. 312 (1926)

(holding that the client, by her actions, clothed her attorney

with apparent authority to settle her claim); Restatement

(Second) of Agency § 8 (1958). In Singer, the Virginia Supreme

Court described the principle of apparent authority:

"[A]s between the principal and agent and
third persons, the mutual rights and
liabilities are governed by the apparent
scope of the agent's authority, which is
 that authority which the principal has held
the agent out as possessing, or which he has
permitted the agent to represent that he
possesses, and which the principal is
estopped to deny. The apparent authority,
so far as third persons are concerned, is
the real authority, and when a third person
has ascertained the apparent authority with
which the principal has clothed the agent,
he is under no obligation to inquire into
the agent's actual authority."

144 Va. at 404, 132 S.E. at 315 (quoting J.C. Lysle Milling Co.

v. S.W. Holt & Co., 122 Va. 565, 571-72, 95 S.E. 414, 415

(1918)); see also National Labor Relations Board v. Donkin's

Inn, Inc., 532 F.2d 138, 141 (5th Cir. 1976) ("'Apparent

authority results when the principal does something or permits

the agent to do something which reasonably leads another to

believe that the agent had the authority he purported to have.'"

(citation omitted)). Therefore, if the principal, by word or

act, cloaks the agent with apparent authority, third persons may

rely on such authority unless "'the compromise possessed such

elements of intrinsic unfairness as to provoke inquiry or imply

fraud.'" Singer, 144 Va. at 404, 132 S.E. at 315 (citation

omitted).

Wife asserts that in Dawson v. Hotchkiss, the Virginia

Supreme Court abandoned the principle it enunciated in Singer

that a client may be bound by a settlement entered into by an

attorney where the client cloaks the attorney with apparent

authority. 160 Va. 577, 169 S.E. 564 (1933). Wife misconstrues

Dawson. In Dawson, the Court conducted an extensive factual

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analysis to determine whether the attorney had apparent

authority to enter an agreement on behalf of the client.

Dawson, 160 Va. at 582, 169 S.E. at 566. The Supreme Court

concluded that, in "light of all the facts and circumstances

shown by the evidence," the attorney did not have "apparent

authority to make a binding contract for [the client]." Id. at

586, 169 S.E. at 567. The Supreme Court thus affirmed the legal

theory of apparent authority in the context of an

attorney/client relationship, but found the evidence failed to

support a finding of apparent authority in that case.

Furthermore, the position enunciated in Singer and accepted in

Dawson is consistent with that taken in numerous jurisdictions. 4

4
Several of our sister courts have held that apparent
authority is a valid legal ground for binding a client to a
final settlement entered into by the client's attorney.
Columbus-America Discovery Group v. Atlantic Mut. Ins., 203 F.3d
291, 298 (4th Cir. 2000) ("As a general rule, counsel of record
have the apparent authority to settle litigation on behalf of
their client."); Fennell v. TLB Kent Co., 865 F.2d 498 (2nd Cir.
1989); Edwards v. Born, Inc., 792 F.2d 387, 390 (3rd Cir. 1986)
(holding "that enforcing settlement agreements on the basis of
apparent authority is consistent with the principles of agency
law, the policies favoring settlements generally, and the
notions of fairness to the parties in the adjudicatory process,"
and remanding for a factual determination of apparent
authority); Blanton v. Womancare, Inc., 696 P.2d 645 (Cal.
1985); Ballard v. Williams, 476 S.E.2d 783, 785 (Ga. 1997)
("[A]n attorney of record has apparent authority to enter into
an agreement on behalf of his client and the agreement is
enforceable against the client by other settling parties."
(citation omitted)); Scott v. Randle, 697 N.E.2d 60, 67 (Ind.
Ct. App. 1998) (finding attorney had apparent authority to
execute a binding settlement agreement where clients supported
attorney's efforts to negotiate a final settlement on their
behalf); Miotk v. Rudy, 605 P.2d 587, 591 (Kan. Ct. App. 1980);
Nelson v. Consumers Power Co., 497 N.W.2d 205, 206 (Mich. Ct.

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 In accordance with agency principles, the words and conduct

of wife govern the determination of whether Byrd had apparent

authority to enter the Agreement on wife's behalf. See

Restatement (Second) of Agency § 27, cmt. a, b (1958)

("[A]pparent authority to do an act is created as to a third

person by written or spoken words or any other conduct of the

principal which, reasonably interpreted, causes the third person

to believe that the principal consents to have the act done on

his behalf by the person purporting to act for him."). The

conduct of her agent, Byrd, is not material to the inquiry.

Analyzing the evidence in light of these principles, the

trial court concluded that wife clothed Byrd with apparent

authority to execute the agreement on her behalf:

App. 1993) (holding that "an attorney, acting solely in the
interest of a client and without any improper motives, has the
apparent authority to settle a lawsuit on behalf of the
client."); Rosenblum v. Jacks or Better of America West, Inc.,
745 S.W.2d 754, 760-63 (Mo. Ct. App. 1998); Amatuzzo v. Kozmiuk,
703 A.2d 9 (N.J. Super. Ct. App. Div. 1997); Hallock v. State,
485 N.Y.S.2d 510, 513-14 (N.Y. 1984); Kaiser Foundation Health
Plan of the Northwest v. Doe, 903 P.2d 375, 379 (Or. Ct. App.
1995) (finding that defendant had vested her attorney with
apparent authority to bind her to final settlement with
plaintiff), modified on other grounds, 908 P.2d 850 (Or. Ct.
App. 1996); Southwestern Bell Telephone Co. v. Vidrine, 610
S.W.2d 803 (Tex. Ct. App. 1980); New England Educational
Training Service, Inc. v. Silver Street Partnership, 528 A.2d
1117, 1119-21 (Vt. 1987) (same); see also Rest. of Law Governing
Lawyers § 27 (1998) ("A lawyer's 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's (and not the lawyer's) manifestations of such
authorization.").

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 Mrs. Walson plainly held Mr. Byrd out as
having authority to negotiate this case.
She authorized him to attend the October
27th meeting. All understood that she chose
not to attend because of her supposed
dislike of her husband, but that
arrangements were made for her to
communicate with her attorney during the
course of that meeting. That Mr. Byrd did
participate and, further, that he
continually conferred with her by telephone
in the course of this lengthy meeting. She
did nothing to inform her former husband or
his attorney of any restrictions on Mr.
Byrd's authority.

Because the trial court's finding that Byrd had apparent

authority is one of fact, see Nolde Bros. v. Chalkley, 184 Va.

553, 567, 35 S.E.2d 827, 833 (1945), we must sustain that

finding unless we conclude that it is plainly wrong or without

evidentiary support. Naulty v. Commonwealth, 2 Va. App. 523,

527, 346 S.E.2d 540, 542 (1986); Code § 8.01-680. "It is well

settled that issues of credibility and the weight of the

evidence are within the unique province of the trier of fact."

Parish v. Spaulding, 26 Va. App. 566, 575, 496 S.E.2d 91, 95

(1998), aff'd, 257 Va. 357, 513 S.E.2d 391 (1999). Therefore,

we "review the evidence in the light most favorable to

[husband], the party prevailing below and grant all reasonable

inferences fairly deducible therefrom," Anderson v. Anderson, 29

Va. App. 673, 678, 514 S.E.2d 369, 372 (1999), and we do "not

substitute [our] judgment for the trial court's determination

unless we find that the testimony relied upon by the trial court

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is inherently incredible," Parish, 26 Va. App. at 575, 496

S.E.2d at 95.

I find that the evidence amply supports the trial court's

finding that wife clothed Byrd with apparent authority to enter

into a final settlement agreement on her behalf. The

negotiations conducted by the parties over a six-month period

were manifestly characterized by Byrd acting on wife's behalf to

reach a final settlement. In May 1999, wife accompanied Byrd to

the first negotiation meeting for the express purpose of

obtaining an agreement on the disputed property issues. Between

that meeting and the October 1999 meeting, wife consistently

communicated her proposals and rejection of husband's proposals

to husband's counsel through Byrd's agency. These

communications were made on her behalf and in her absence.

Wife acknowledged that the purpose of the October

settlement negotiation meeting was to try "to resolve [the]

matter" prior to the trial, which was scheduled to begin the

following Monday. She admitted authorizing Byrd to attend the

October meeting "on her behalf," for the specific purpose of

negotiating a settlement of all issues in dispute. To that end,

wife employed Byrd to communicate her offers and rejection of

counteroffers to opposing counsel and his client, a function he

had filled during the six-month negotiation period.

Byrd testified that he spoke with wife on the phone

concerning each issue presented at the October meeting. At the

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end of the meeting, Byrd had spoken with wife at least ten

times, and the parties had reached an agreement as to all terms

except who would pay the mortgage while wife lived in the house

pending its sale. Byrd left the meeting to communicate

husband's counteroffer to wife, a course he had been following

throughout the afternoon. Byrd did not return to the meeting

until the following day, when he communicated wife's acceptance

of husband's counteroffer to husband's counsel through a

stipulation detailing the terms of the agreement. Both

attorneys then signed the agreement.

Because wife, throughout the settlement negotiations, held

out Byrd as having the authority to communicate wife's offers

and rejection of counteroffers, husband and his counsel

reasonably believed that Byrd had the authority to communicate

wife's acceptance of husband's counteroffer. See Scott v.

Randle, 697 N.E.2d 60, 67 (1998) ("[W]hen a party places an

agent in the position of sole negotiator on his behalf, it may

be reasonable for the third person to believe that the agent

possesses authority to act for the principal. In such instance,

the conduct of the principal constitutes the requisite

manifestation or communication, although indirect.").

Wife relies on Auvil v. Grafton Homes, Inc., 92 F.3d 226

(4th Cir. 1996), to support her contention that the trial court

erred in finding that Byrd had apparent authority to bind her to

a final settlement. In Auvil, the court found that "[t]he

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authority to negotiate . . . is far different from the authority

to agree to a specific settlement." Auvil, 92 F.3d at 230.

Wife's reliance on Auvil is misplaced. Auvil merely restates

the need for evidence demonstrating that the client clothed the

attorney with apparent authority to bind her to a final

settlement. Id. at 230 ("An agent's authority must be conferred

by some manifestation by the principal that the agent is

authorized to act on the principal's behalf." (emphasis in

original) (citation omitted)).

In this case, wife's actions clothed Byrd with authority to

reach final settlement on her behalf. Several of the settlement

proposals that wife authorized Byrd to present during the four

hours of negotiations were full and complete, such that, if

accepted by husband, they would have bound wife to a final

settlement. By her actions and conduct, wife led husband and

his counsel to reasonably believe that Byrd had authority to

finalize the negotiations. Byrd, thus, had apparent authority

to bind wife to a final settlement agreement.

Furthermore, the parties are bound despite the fact that

they did not execute a written agreement. The evidence, viewed

in the light most favorable to husband, demonstrates that the

parties did not contemplate that a written agreement be executed

as a condition precedent to their being bound. See Richardson

v. Richardson, 10 Va. App. 391, 396, 392 S.E.2d 688, 690 (1990)

("Where parties involved in contract negotiations do not

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expressly state that the validity of an agreement between them

is subject to the preparation, approval, and signing of a formal

written contract, it is a question of fact whether they intended

that no contract would exist until a written agreement was

executed."). Byrd testified that a formal property settlement

agreement was not intended. Rather, he and husband's counsel

had "discussed it, and just picked a method of either drafting a

decree, and putting it in the decree, or doing it by

stipulation, to be put into the decree." The trial court did

not credit wife's testimony that she intended that a formal

property settlement agreement be drafted and signed by both

parties before either party would be bound. We are bound by the

trial court's determination of fact on this issue. Anderson, 29

Va. App. at 686, 514 S.E.2d at 376 (holding that trier of fact

determines credibility of witnesses). Therefore, despite the

absence of a written agreement signed by both parties, once Byrd

communicated, with apparent authority, to husband's counsel that

wife had accepted husband's counteroffer, both parties were

bound. Id. at 394, 392 S.E.2d at 689.

In sum, I find that the holding in Singer that an attorney

may bind his or her client to a final settlement on the basis of

apparent authority remains controlling Virginia law. I also

find there is sufficient evidence to support the trial court's

decision that Byrd had apparent authority to bind wife to a

final settlement. Because both attorneys signed the stipulation

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with legal authority, wife is bound by the agreement. I,

therefore, would affirm the decision of the trial court.

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