concurring in result.
I write a separate opinion because I find that the trial court failed to provide Conrail with a clear and certain order of what the term “full settlement authority” meant. I cannot agree with the majority’s statement in section II. B. that “full settlement authority” is a phrase that is not difficult to interpret and Conrail knew what the order was mandating.
I would note that the trial court provided Conrail with an order that “counsel and their clients, with full settlement authority” were to appear at the settlement conference. Therefore, the dispositive issue in this case is whether the trial court’s order was clear and certain such that Conrail could willfully disobey the court’s order. As the majority previously stated, orders of a court must be clear and certain so that there can be no question as to what the person must do or not do, and no question regarding when the order is violated. Martinal, 225 N.E.2d at 185.
As I review the trial court’s sanction order, I am mindful that the Record must reflect sufficient evidence of the sanctioned parties’ willful disobedience of the court’s order. My review of the Record does not reveal sufficient evidence to determine that Conrail’s actions were in willful disobedience of the trial court’s order. The Record merely contains the trial court’s orders and fails to include a record of any discussion between the court and the parties regarding the order to bring someone with full settlement authority to the settlement conference. As a result, we can only review the trial judge’s discretion from a review of his orders. The trial court ordered Conrail to bring someone to the settlement conference with full settlement authority, but the trial court judge failed to define the term “full settlement authority.” The majority wishes to interpret the trial judge’s order to mean that the judge was ordering that some person, representative, committee, or the like, be present and able to settle the matter, fully and finally, regardless of whether or not $250,-000 was, indeed, the full and final amount that Conrail was willing to offer. I cannot interpret the trial judge’s order in this way because I find that the trial judge’s order was not clear as to whether “full settlement authority” meant someone with the power to bind Conrail to settle or whether it meant the authority to settle a maximum settlement value, McQuestion’s appearance at the settlement conference with authority to settle at the maximum settlement value as assessed by Conrail was reasonable and not in willful disobedience of the court’s order. Because the trial court’s order was not clear or certain as to provide Conrail with a sense of what the order mandated or when Conrail would be in violation, Conrail could not willfully disobey the order.
As the majority recognizes, Conrail relies on State v. Carter for the proposition that “full settlement authority” means someone empowered to enter into settlement for the full value that the defendant is willing to pay. 658 N.E.2d 618 (Ind.Ct.App.1995). However, the majority fails to discuss that this court based its decision in Carter on the Colorado Supreme Court case of Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902 (Colo.1992). In that *1268case, the Colorado Supreme Court held that the trial court erroneously sanctioned a law firm for not participating in a court-ordered settlement conference in good faith. During the settlement conference, the plaintiffs offered to settle the case for a specified amount, but defense counsel responded that he only had authority to settle for $300, thereby ending the settlement conference. The settlement judge later issued an order that the law firm had acted in bad faith by violating the court’s order for a settlement conference and the order that the parties attend the settlement conference with full settlement authority. However, the Colorado Supreme Court rejected the trial court’s finding that the law firm lacked settlement authority, holding that the law firm did not lack settlement authority; but instead, the settlement offer was just not adequate in the opinion of the settlement conference judge. State v. Carter, 658 N.E.2d at 623 (citing Halaby, 831 P.2d at 908). The Colorado Supreme Court further reasoned that “[a]n ‘adequate’ amount of settlement authority will vary based on the circumstances of each case, and a settlement conference judge should not impose sanctions because, in his opinion, the amount is insufficient.” Id.
Conrail applies the reasoning in the Carter case to the facts surrounding the case at hand. Specifically, Conrail argues that it was not ordered to attend the settlement conference with a representative vested with unlimited settlement authority, and further, it was not ordered to appear with a representative vested with authority to offer more than it had offered at mediation or more than the maximum settlement value as assessed by its settlement committee. Conrail argues that the facts of this case are analogous to the facts of Carter and Halaby, and therefore, Conrail’s representative, McQuestion, did not lack settlement authority. In sum, Conrail contends that the trial judge erred by imposing sanctions because it was not for the trial court to decide the reasonableness of Conrail’s assessment of the value of the case, but only that Conrail, via McQuestion, was prepared to settle at some point.
However, the majority finds that McQuestion was not vested with “full settlement authority” as the court order mandated, and also that Conrail’s settlement committee was not even available for consultation during the settlement conference. Because I find that the trial judge’s order was not clear as to whether “full settlement authority” meant someone with the power to bind Conrail to settle or whether it meant the authority to settle at a maximum settlement value, McQuestion’s appearance at the settlement conference with authority to settle at the maximum settlement value as assessed by Conrail was reasonable and not in willful disobedience of the court’s order.
Therefore, I agree with the majority that Conrail did not willfully disobey the trial court’s order, however, I would hold that the trial court failed to provide Conrail with a clear and certain order of what the term “full settlement authority” meant. From my review of the Record I can only surmise that Conrail believed that “full settlement authority” meant to bring someone with authority to settle the case at the maximum settlement amount as determined by Conrail. Thus, because the Record fails to include sufficient evidence in order for us to determine whether Conrail willfully disobeyed the trial court’s order we must reverse the sanction order.