Brown v. Brown

ORME, Judge:

(dissenting)

I think what is said in the main opinion about the requirements for a binding stipulation is correct. I agree the requirements for a valid stipulation were not met in this case. However, there are situations where a settlement agreement is reached — where all parties have had a meeting of the minds as to the basis for settlement of an action or proceeding — through a device other than a stipulation. That agreement might be memorialized by an exchange of letters, dictation to a shorthand reporter, or even just a handshake. In my view, such agreements, intended to be binding when made, are enforceable and should be enforced. They should be enforced even though one party might have a change of heart or otherwise balk at signing a formal stipulation designed to implement the valid and binding agreement previously made. Parties have no right to welch on a settlement deal during the sometimes substantial period between when the deal is struck and when all necessary signatures can be garnered on a stipulation.

The key in this case, then, is whether appellant assented to the settlement agreement which was dictated to the reporter in her presence. She concededly sat mute throughout the proceeding. Her duly employed attorney, however, manifested assent on her behalf. The pivotal issue is whether he had authority to do so.

The facts are in conflict on this point. Appellant suggests she was stupefied by her former attorney’s betrayal and rendered unable to speak or, apparently, even to storm out. On the other hand, it is reasonable to infer, as those present did, that a principal who says nothing when her agent speaks for her is in accord with the sentiments expressed by the agent. This inference is bolstered by evidence which is usually quite reliable — the subsequent course of conduct of the parties. Following the apparent agreement, respondent made payment at the higher level contemplated by the putative settlement and for several months appellant accepted those payments without incident. No unfavorable inference would be available from her merely cashing the checks, which were mostly for amounts clearly due her. But her retention and use of the extra amount not due her under the original decree is consistent only with an understanding that a settlement had been reached — or, I suppose, of dishonesty on her part. Laypersons fully understand that they may spend money only if it is theirs. There being nothing to suggest appellant was dishonest, the fact that she kept the extra amount rather than returning it tends to show she thought it was hers to keep; it could be hers to keep only if the decree were modified, as per the settlement, to increase the monthly total due for her support and that of the children. Thus, her retention and use of the larger payments tendered subsequent to the alleged settlement tends to show she had agreed to the terms of the settlement.

The facts concerning whether appellant assented to the settlement would support a conclusion either way. After hearing the motion to enforce the settlement, which a commissioner earlier heard and recommended be granted, the trial court made findings of fact to the effect that appellant was bound by the settlement. I concede, however, that those findings are not entitled to the usual deference because the court did not receive actual testimony. Cf. *337 Diversified Equities, Inc. v. American Savings & Loan, 739 P.2d 1133, 1136 (Utah Ct.App.1987). 1 The court received affidavits and counsels’ representations about what the testimony would show. Thus, the trial court’s usual advantage in terms of viewing the witnesses and their demeanor does not obtain in this case. We are in as good a position to review the affidavits and consider the proffer 2 as was the trial court. 3 After considering these items, I agree with the commissioner and the trial judge that the facts more readily support the conclusion that appellant initially agreed to the settlement and then had a change of heart than the conclusion that she never agreed but was rendered unable to say so and simply regarded the extra amounts tendered as a coincidental gift from her ex-husband.

I would affirm.

.In Diversified Equities, the trial court received an extensive recitation of facts to which the parties had stipulated. 739 P.2d at 1134 . The trial court then entered "findings” of fact. We observed: "Generally, a trial court’s findings of fact are accorded great deference. However, without regard to the labels used, when those "findings” proceed from stipulated facts ... the "findings” are tantamount to conclusions of law, with the stipulation of facts being the functional equivalent of the findings of fact.” 739 P.2d at 1136 . That conclusion is premised on two factors: First, a disposition based on stipulated facts is "not one involving resolution by the trial court of conflicting testimony.” Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo.1979) (en banc). Second, since the facts are written or recited and do not turn on witness credibility, an appellate court has “the same means as the trial court had of reaching a correct conclusion of law_” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). Those same factors apply to the affidavits and proffer which substituted for testimony in the instant case. Although the conflict between the affidavits should have prompted an evidentiary hearing, see Note 3, infra, we are in as good a position as was the trial court to read the affidavits and the proffer and draw logical conclusions therefrom.

. Fortunately, one of the two attorneys requested that the hearing be reported or the proffer would be unavailable to us. Such a hearing should be reported as a matter of course. See Briggs v. Holcomb, 740 P.2d 281, 283 (Utah Ct.App.1987) ("Although consistently making a record of all proceedings imposes a greater burden on the trial court and court reporters, it is impossible for an appellate court to review what may ultimately prove to be important proceedings when no record of them has been made.”).

. In retrospect, an evidentiary hearing would probably have been preferable. Had the testimony been consistent with the affidavits and proffer and the same findings made, those findings would clearly be entitled to the usual deference and the trial court’s disposition would clearly be entitled to affirmance. However, neither side requested an evidentiary hearing and appellant does not argue on appeal that she was entitled to one.