Jackson v. Con-Way Transportation Services, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 15, 2007
No. 06-14417 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00431-CV-KD-B

BARON K. JACKSON,
MICHELLE L. JACKSON,

Plaintiffs-Appellants,

versus

CON-WAY TRANSPORTATION SERVICES, INC.,
a.k.a. Con-Way Southern Express,

Defendant,

FIKES TRUCK LINE, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(March 15, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:

Baron Jackson and Michelle Jackson appeal the district court’s order

denying their motion for reconsideration under Federal Rule of Civil Procedure

60(b), in which they challenge the denial of their motion to reinstate their

underlying diversity action. We AFFIRM.

I. BACKGROUND

The Jacksons filed a complaint against defendant Con-Way Southern

Express and defendant-appellee Fikes Truck Line, Inc. for injuries suffered in an

vehicular collision. They alleged that their automobile was involved in a collision

caused by the defendants’ negligent operation of two tractor trailers. The Jacksons

sought compensatory and punitive damages. Both named defendants filed a notice

of removal to federal court which removed this case to the Southern District of

Alabama based on diversity under 28 U.S.C. § 1332.

Subsequently, the Jacksons settled their case with Con-Way Transportation

Services, Inc., and the district judge dismissed the complaint against Con-Way

with prejudice. The remaining defendant, Fikes, filed a notice of settlement to

notify the court that a confidential settlement agreement had been negotiated. The

district judge entered an order dismissing the case with prejudice, but the order also

provided for “the right of any party to reinstate the action within thirty (30) days

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of the date of this order should the settlement agreement not be consummated.”

Doc. 24 at 2. Within the thirty days, the Jacksons’ attorney and the attorney for

Fikes filed a Joint Stipulation for Dismissal for the dismissal with prejudice of all

claims against Fikes.

The Jacksons, proceeding pro se, filed a motion for reinstatement and

sought to reinstate their case against Fikes because the Jacksons rejected the

settlement offer and did not consummate a settlement. Fikes filed an objection and

argued that the Jacksons executed a general release and settlement agreement that

provided for the release of “all claims arising out of the [collision at issue].” Doc.

27, Ex. A at 1(General Release and Confidential Settlement Agreement, May 30,

2006). Additionally, the release provided that the Jacksons “acknowledge that

they have read and understand this Release and Confidential Settlement Agreement

and execute it freely with the express knowledge and consent of counsel for the

undersigned.” Id. at 3.

Fikes further argued that the Jacksons endorsed the settlement check, which

read, “IN FULL PAYMENT OF ANY AND ALL CLAIMS.” Doc. 27 at 2. The

settlement check was attached to a piece of paper that read, “WHEN YOU SIGN

(ENDORSE) THE ATTACHED SETTLEMENT CHECK, YOU HAVE

ACCEPTED PAYMENT IN FULL FOR ANY AND ALL CLAIMS.

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ACCEPTANCE OF THIS PAYMENT SHALL OPERATE AS A RELEASE OF

ALL LIABILITY FOR ALL DAMAGES ARISING OUT OF THE ACCIDENT

OF 06/30/03.” Id.

The Jacksons’ former attorney filed a response to the plaintiffs’ motion to

reinstate their case, wherein he states that, on May 4, 2006, the Jacksons had

authorized him to settle their claims against Fikes for $25,000, that he had received

a settlement check for $25,000 on May 22, 2006, and that he had deposited the

check into his trust account that day. Filed with the response was a copy of the

$25,000 settlement check. On May 30, 2006, the Jacksons signed the settlement

agreement and received a check from their attorney's trust account for their

proceeds of the settlement. The Jacksons’ former attorney also filed the signed

copy of the settlement statement, a copy of the check issued from his trust account

with his response, a letter to the Jacksons regarding the disbursement of the

settlement proceeds, a disbursement summary sheet signed by the Jacksons that

itemized the disbursement of the proceeds, and a copy of a letter sent to the

Jacksons in which their former attorney verified the amount of the medical lien.

The settlement agreement provided that, in exchange for $25,000, the

Jacksons agreed to release Fikes and Fikes’s insurer from claims arising out of the

underlying collision. The settlement agreement also states, “the settlement amount

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shall be kept confidential and shall not be disclosed, made public, disseminated,

released, or otherwise referenced, alluded to, or suggested to any person in any

manner whatsoever.” Doc. 27, Ex. A at 2. Additionally, the settlement agreement

prohibited the disclosure “of the settlement or the demands and offers involved in

negotiations and discussions leading up to this settlement.” Id. The settlement

agreement further prohibited any “statement or implication that the settlement is

greater or lesser than any specified amount, or any other direct or indirect

quantification of the settlement amount.” Id.

The Jacksons’ former attorney stated that he was notified of two contracts

that the Jacksons had signed on July 8, 2003, with a healthcare provider, which

created a lien in the amount of $5,585.09 against any settlement proceeds. He

submitted copies of these contracts with his response. In addition to creating a

lien, the contracts state, “I, further authorize my attorney . . . to disclose . . . the

settlement status and amount of any settlement, if requested by [the healthcare

provider] for any reason.” Doc. 28, Doctor's Lien Exs. The contract also provided

that, at the time of settlement, the balance due would be paid in full, but that

payment was not contingent on settlement. The Jacksons’ attorney informed them

that he would have to use the settlement proceeds to pay the amount owed their

healthcare provider. The morning after executing the settlement documents,

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Michelle Jackson returned the trust account check to her attorney’s office and

informed an employee at the office that they no longer wished to settle.

The district judge denied the Jacksons’ motion to reinstate their case. The

judge explained that the Jacksons, pro se, stated that they had rejected and not

consummated the settlement. Their counsel and Fikes, however, submitted copies

of the settlement agreement, executed by the Jacksons, and evidence that the

Jacksons had accepted a check from Fikes for settlement of their claims.

Eleven business days later, on July 11, 2006, the Jacksons moved for

reconsideration of the order denying their pro se motion for reinstatement. They

did not dispute that their attorney had received the settlement check and deposited

it into his trust account, nor did they dispute that they had signed the settlement

agreement. Instead, they argued that they did not instruct their attorney to mail the

executed settlement documents, that they did not authorize their attorney to submit

the notice of settlement, and that they did not authorize their attorney to enter into a

settlement on their behalf or to accept the settlement check. Essentially, the

Jacksons argued that fraud and misrepresentation on part of their attorney to the

court made the settlement agreement void.

The Jacksons further contended that they had repudiated the settlement

agreement. The settlement agreement provided that the settlement would remain

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confidential, and that confidentiality was a material part of the settlement

agreement. The contracts that the Jacksons had signed with their healthcare

provider authorized the Jacksons’ attorney to disclose the amount of settlement to

the healthcare provider. By entering into the contract with their healthcare

provider, the Jacksons argued that they had refused to keep the settlement

confidential and had repudiated the settlement agreement.

The district judge denied the motion to reconsider. She reasoned that, even

though the Jacksons had argued that they did not authorize their attorney to submit

the notice of settlement and did not authorize him to mail the executed settlement

documents, they did execute the settlement agreement and other documents related

to the settlement, and they had accepted a check drawn on their attorney’s trust

account. Based on these acts, the judge rejected the Jacksons’ argument that they

did not realize they were consummating the settlement.

II. DISCUSSION

The Jacksons argue that the district judge erred by enforcing a settlement

agreement that was obtained through fraud, accident, or mistake. They also

contend that the settlement agreement was not valid because there was a dispute

over material terms of the agreement; they did not intend to execute the settlement

agreement; the settlement agreement conflicted with their respective contracts with

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their healthcare provider; and the district judge had ordered the breach of the

confidentiality provisions of the settlement agreement. The Jacksons further argue

that the district judge erred by failing to hold an evidentiary hearing concerning the

settlement agreement.

The Jacksons did not specify whether their motion for reconsideration was

filed pursuant to Federal Rule of Civil Procedure 59(e) or 60(b). Because their

motion was filed eleven business days after the district judge entered her order, it

is treated as if it were filed pursuant to Rule 60(b). Mahone v. Ray, 326 F.3d 1176,

1177-78 n.1 (11th Cir. 2003). We review a district judge’s denial of relief under

Rule 60(b) for abuse of discretion. Waddell v. Hendry County Sheriff’s Office,

329 F.3d 1300, 1309 (11th Cir. 2003). Under an abuse-of-discretion analysis, “'we

must affirm unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.'” Amlong & Amlong, P.A. v.

Denny’s, Inc., 457 F.3d 1180, 1188 (11th Cir. 2006) (citation omitted).

Additionally, an appeal from a Rule 60(b) motion is limited to the denial of that

motion and does not bring up the underlying judgment for review. American

Bankers Ins. Co. of Fla. v. Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th

Cir. 1999).

Rule 60(b) provides:

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 [T]he court may relieve a party . . . from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for a
new trial . . .; (3) fraud . . . , misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged . . .; or (6) any other reason justifying
relief from the operation of the judgment.

Fed. R. Civ. P. 60(b). Under Rule 60(b)(3), the movant “must prove by clear and

convincing evidence” that the judgment was obtained by “fraud,

misrepresentations, or other misconduct” by an adverse party, and must show that

the conduct prevented the full presentation of the movant’s case. Waddell, 329

F.3d at 1309.

Alabama courts have found consent to a settlement agreement where there is

evidence that a party is informed of the terms of the settlement agreement and

agrees to it. See Sayre v. Dickerson, 179 So.2d 57, 66-67 (Ala. 1965) (finding

consent to a settlement agreement where a party’s testimony in open court

provided evidence that settlement agreement was agreed upon, even though

consent was later withdrawn and characterized as made under protest). Under

Alabama law, repudiation of a contract requires “'words or acts evincing an

intention to refuse performance within the future time allowed by the contract.'”

Coaker v. Washington County Bd. of Educ., 646 So.2d 38, 41 (Ala. Civ. App.

1993) (citation omitted). A settlement agreement, however, may not be repudiated

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and will be enforced by the courts. Id. at 41-42. “A settlement agreement will be

reopened only for accident, mistake, or fraud.” Id. at 42. If a settlement

agreement was obtained by fraud, then the entire agreement may be set aside. Id.

“'The elements of fraud are (1) a false representation (2) of a material

existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as

a proximate consequence of the misrepresentation.'” Waddell & Reed, Inc. v.

United Investors Life Ins. Co., 875 So.2d 1143, 1160 (Ala. 2003) (citation

omitted). Under Alabama law, even an “innocent misrepresentation” can

constitute fraud if it “concerns an existing material fact upon which the plaintiff

relied” that proximately resulted in damage. Coaker, 646 So.2d at 42.

The settlement agreement and contracts with the Jacksons’ healthcare

provider were before the district court. The contracts with the Jacksons’ healthcare

provider created a lien against any settlement proceeds that the Jacksons received

and authorized the Jacksons’ attorney to disclose the settlement status and amount

of settlement if requested by either a doctor or the clinic that treated the Jacksons.

These contracts were executed by the Jacksons on July 8, 2003. It is undisputed

that the Jacksons executed the settlement agreement with Fikes on May 30, 2006.

The settlement agreement provided that the amount of the settlement be

confidential.

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 There is no evidence that the confidentiality provision was breached or

would be breached by either the Jacksons or their attorney. The medical liens

authorize the Jacksons’ attorney to communicate the settlement amount, if

requested by the healthcare provider. The Jacksons’ attorney admits that he

verified the amount of the lien, but there is no evidence that he was asked to

disclose the settlement amount or that he did disclose the settlement amount.

Additionally, the district judge did not order disclosure of the settlement amount.

The Jacksons presented no evidence that the settlement agreement was

obtained through fraud or misconduct by any of the parties. They have shown no

false representation. The Jacksons rely on a provision in the contracts that they

executed with their healthcare provider that has the potential to conflict with the

confidentiality requirements of their settlement agreement. The district judge did

not abuse her discretion in denying the Jacksons’ motion for reconsideration

because they provided no evidence that the settlement agreement was procured

through fraud, misrepresentation, or misconduct by any party.

The Jacksons also have challenged the validity of the settlement agreement.

They argue on appeal that they did not intend to enter into the settlement

agreement because they had previously signed a contract that conflicted with it.

Not only did the Jacksons, with the assistance of their counsel, review the

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settlement agreement before they executed it, but also the settlement check was

endorsed, and it was deposited into their attorney’s trust account.1

Under Alabama law, a settlement agreement may not be repudiated. Coaker,

646 So.2d at 41. Where there is evidence that a party is informed of the terms of

the settlement agreement and agrees to it, a court will find consent to the settlement

agreement. See Sayre, 179 So.2d at 66-67. The Jacksons do not dispute that they

executed the settlement agreement. The settlement agreement reads in part, “The

undersigned . . . hereby acknowledge that they have read and understand this

Release and Confidential Settlement Agreement and execute it freely with the

express knowledge and consent of counsel for the undersigned.” Doc. 27, Ex. A at

3. The Jacksons also signed a Disbursement Summary Sheet itemizing the

disbursement of the settlement proceeds, and they accepted a check drawn on their

attorney’s trust account for those proceeds.

The Jacksons did not support their motion for reinstatement with any

evidence and argued only that they had rejected the settlement offer and did not

consummate the settlement. In their motion for reconsideration, the Jacksons

argued that they did not consummate the settlement agreement because they did

not authorize their attorney to mail the signed settlement documents or file a notice

1
The Jacksons’ attorney endorsed the settlement check with their permission.

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of settlement with the court. The district judge did not abuse her discretion in

denying the Jacksons’ motion for reconsideration because the evidence supports

the conclusion that the Jacksons consummated the settlement agreement.

To the extent that the Jacksons argue that the district judge erred by

enforcing the settlement agreement that conflicted with the contracts with their

healthcare provider, and that the district judge ordered the breach of the settlement

agreement, we disagree. The settlement agreement and the contracts with their

healthcare provider do not conflict, and there is no evidence that any party

breached the settlement agreement. The Jacksons presented no evidence that their

attorney disclosed the settlement amount, and the contracts that the Jacksons

signed with their healthcare provider obligated their former attorney to disclose

any settlement amount if requested. The record shows only that their attorney

verified the amount of the lien. The Jacksons also fail to show anything in the

record to support their conclusion that the district judge ordered the breach of the

settlement agreement. The district judge did not abuse her discretion in denying

the Jacksons’ motion for reconsideration on the basis that the settlement agreement

conflicted with the contracts with their healthcare provider.

The Jacksons also argue that “there was a substantial factual dispute as to the

terms of the settlement.” Appellant's Br. at 1. They fail to state or show any terms

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in the settlement agreement over which there was a dispute as to the meaning. The

Jacksons reviewed with their attorney the settlement agreement, which states the

settlement amount, and they signed it. Accordingly, their argument as to the terms

of the settlement agreement is without merit.

Finally, the Jacksons argue for the first time on appeal that the district judge

erred by failing to hold an evidentiary hearing on the settlement agreement. There

is no indication in the record that the Jacksons ever requested an evidentiary

hearing in the district court. Generally, we will not consider an issue unless it was

raised in the district court, and the alleged failure to hold an evidentiary hearing on

the settlement agreement does not fall within one of the exceptions to that rule.

Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994). Therefore, we will not

address the district judge’s failure to hold an evidentiary hearing.

III. CONCLUSION

The Jacksons have appealed the district judge's order denying their motion

for reconsideration under Rule 60(b) to reinstate their underlying diversity action.

As we have explained, they have provided no evidence of fraud, misrepresentation,

or other misconduct by any party, nor did they provide any evidence under any

other permissible reason for relief pursuant to Rule 60(b) that would require

reconsideration of the district judge’s order. Because the district judge did not

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abuse her discretion in denying the Jacksons’ motion for reconsideration, we

AFFIRM.

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