Petition for Writ of Certiorari — Harris v. City of Chattanooga, Tennessee (No. 05-863)

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[magistrate judge] to hear and determine any pretrial

matter pending before the court, except 2 motion for

injunctive relief, for judgment on the pleadings, for

summary judgment, to dismiss or quash an indictment

or information made by the defendant, to suppress

evidence in a criminal case, to dismiss or to permit

maintenance of a class action, to dismiss for failure to

State a claim upon which relief can be granted, and to

involuntarily dismiss an action. A judge of the court

may reconsider any pretrial matter under this

subparagraph (A) where it has been shown that the

magistrate’s [magistrate judge's] order is clearly

erroneous Or contrary to law.

(B) a judge may also designate a magistrate

{magistrate judge] to conduct hearings, including

evidentiary hearings, and to submit to a judge of the

court proposed findings of fact and recommendations

for the disposition, by a judge of the court, of any

motion excepted in subparagraph (A), of applications

for posttrial relief made by individuals convicted of

criminal offenses and of prisoner petitions challenging

conditions of confinement.

(C) the magistrate [magistrate judge] shall file his

proposed findings and recommendations under

subparagraph (B) with the court and a copy shail

forthwith be mailed to all parties.

Within ten days after being served with a copy, any party

may serve and file written objections to such proposed

findings and recommendations as provided by rules of court.

A judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made. A judge of the

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court may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate

{magistrate judge]. The judge may also receive further

evidence or recommit the matter to the magistrate [magistrate

judge] with instructions. 28 U.S.C. § 636.

STATEMENT OF THE CASE

This petition seeks review of a decision of the United

States Court of Appeals for the Sixth Circuit upholding a

decision of the district court dismissing the Petitioner’s civil

action brought under 42 U.S.C. § 1983.

(a) Petitioner believes the decision of the Court of

Appeals conflicts with prior decisions of this Court and other

circuits holding that a federal court may not exercise its

inherent power in a manner that conflicts with Constitutional

and statutory provisions. Here, the Court of Appeals denied

Due Process to the Petitioner in its arbitrary refusal to apply

an exception to its waiver rule. The issue of how appellate

courts must apply exceptions to their waiver rules is an issue

previously reserved by this Court.

(b) The district court below committed plain error in

finding the Petitioner’s former attorney had apparent authority

to enter into the settlement agreement where controlling

precedent in the state court of last resort holds that attorneys

do not have apparent authority to compromise 4 suit.

(c) The Court of Appeals acted in direct conflict with

prior holdings of this Court and with Federal Rule of Civil

Procedure 52(a) as it reviewed the record de novo and made

its own factual findings. This decision sets a dangerous

precedent for appellate courts in overreaching in the scope of

their authority to review factual findings under Rule 52.

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This case arose when Petitioner’s son, Torris Harris,

suffered death by suffocation at the hands of five City of

Chattanooga police officers and two private citizens during a

traffic stop.

Petitioner brought suit pursuant to 42 U.S.C. § 1983.

Sometime in or around December of 2003, Ms. Harris’

former counsel made a demand to the City of Chatianooga to

settle the case for one-hundred thousand dollars

($100,000.00). Counsel for the City of Chattanooga

responded with a counter-offer of twenty-eight thousand five-

hundred dollars ($28,500.00), and, in a December 18, 2003

letter, Petitioner’s former counsel accepted the offer. On or

about January 1, 2004, Ms. Harris advised her former

counsel that she would not accept the offer, and he wrote to

the Defendants advising them that she rejected their offer.

Afterward, the Defendants filed various motions to

enforce the purported settlement agreement. The motions

were referred to the magistrate judge for an evidentiary

hearing, and on February 11, 2004, the magistrate issued a

Report and Recommendation, recommending that the District

Court enforce the purported agreement. The magistrate found

Petitioner did not understand the terms of the settlement

agreement. (App. at 25a). The magistrate further found

Petitioner’s former counsel accepted the settlement on her

behalf, finding he had apparent authority to do so, and basing

this apparent authority solely on his status as counsel of

record for Petitioner. (App. 25a). This finding directly

contradicts applicable state law holding attorneys do not have

apparent authority to settle a suit, and cannot comprise a

matter without the express authority of the client.

On March 3, 2004, the District Court entered an Order

adopting the Report and Recommendation. Appellant’s former

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counsel moved to withdraw on March 14, 2004, and on

March 18, 2004, he delivered documents, including the

Report and Recommendation and Order, to Petitioner. On

March 23, 2004, Petitioner, pro se, filed her objections to the

Report and Recommendation and motion for reconsideration

of the Order adopting the Report and Recommendation.

The District Court considered the objections and motion

of the Plaintiff, and denied the same under a Fed. R. Civ. P.

60(b) standard in a Memorandum and Order, both dated May

14, 2004.

The issue of the lack of authority of Petitioner’s former

attorney to comprise the suit on her behalf was properly

raised below in Petitioner’s objections and motion for

reconsideration, and on appeal.

In its opinion, the Court of Appeals held that by failing to

timely object to the Magistrate’s Report and Recommendation

within ten days, the Petitioner waived her right to appeal. In

so holding, however, the Court of Appeals ignored a long-

standing exception to its waiver rule, which allows appeal

where the District Court entertains a late-filed objection. The

Court of Appeals premised its departure from this rule on the

fact that the District Court viewed the Petitioner’s objections

under a Fed.R. Civ. P. 60 standard, despite there having been

at least one prior Sixth Circuit opinion allowing appeal where

a late objection was viewed by the District Court under a Rule

60 standard.

The Court of Appeals then reviewed the record de novo

and held that the Petitioner accepted the settlement — a finding

not reached by the district court. By reviewing the record de

novo and making its own factual findings, the Court of

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Appeals overstepped the bounds of its authority under Federal

Rule of Civil Procedure 52(a).

The Sixth Circuit denied Petitioner’s request for rehearing

and for rehearing en banc without opinion.

REASONS FOR GRANTING THE WRIT

I. This Court Should Grant Certiorari Because The

Decision Below Conflicts With Decisions Of This Court

And Other Circuits Holding That A Federal Court

May Not Exercise Its Supervisory Power In A Way

That Conflicts With Constitutional And Statutory

Provisions.

A. The Waiver Rule at Issue.

At issue here is a rule, adopted by the Sixth Circuit in

United States v. Walters, 638 F.2d 947 (6" Cir. 1981),

conditioning appeal upon a party filing objections to a

magistrate’s report within ten days as provided for in 28

U.S.C. § 636 (b)(1).

In Thomas v. Ar, 474 U.S. 140 (1985), this Court

considered the Sixth Circuit’s waiver rule and held that “a

court of appeals may adopt a rule conditioning appeal, when

taken from a district court judgment that adopts a magistrate’s

recommendation, upon the filing of objections with the district

court identifying those issues on which further review is

desired. Such a rule, at least when it incorporates clear notice

to the litigants and an opportunity to seek an extension of time

for filing objections, is a valid exercise of the supervisory

power that does not violate either the Federal Magistrate’s

Act of the Constitution.” /d. at i5S5.

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This Court noted that because the waiver rule approved by

the Court was a nonjurisdictional waiver provision, default

could be excused “in the interests of justice,” referencing in

a footnote Fed. R. of Crim. Proc. 52(b), which states that a

court may correct plain error despite the failure of a party to

object. 474 U.S. at 155.

B. Certiorari is Warranted Where This Court

Expressly Reserved the Issue of How Appellate

Courts Must Apply Exceptions to the Waiver Rule

and Where There is a Split Among the Circuits in

Their Application of Exceptions.

In Thomas, the Court expressly reserved the issue of how

appellate courts must apply exceptions to their waiver rules,

stating, “[w]e need not decide at this time what standards the

courts of appeals must apply in considering exceptions to their

waiver rules.” 474 U.S. at 155.

A grant of certiorari by this Court is appropriate where a

decision of the court of appeals is predicated upon a point

expressly reserved or left undecided in prior decisions of this

Court. See, American Textile Mfrs. Institute v. Donovan, 452

U.S. 490, 495 (1981); United States v. Martinez-Fuerte, 428

U.S. 543, 545 (1976); El Al Israel Airlines, Ltd. v. Tseng,

525 U.S. 155, 161-62 (1999).

Since the decision in Thomas, there has been a definitive

split among the circuits in considering exceptions to their

waiver rules.

A grant of certiorari is also appropriate where there is a

conflict between decisions of courts of appeals on the same

matter. Supreme Court Rule 10(a); see also, Thompson v.

Keohane, 516 U.S. 99, 106 (1995) (certiorari granted where

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Circuits disagreed “because uniformity among federal courts

is important on questions of this order”); Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (certiorari

granted “to resolve a conflict among the Circuits on the

appealability question” as to certain district court decisions);

Marks v. United States, 430 U.S. 188, 189 (1977) (certiorari

granted “to resolve a conflict in the Circuits”).

C. An Appellate Court’s Supervisory Power is Invalid

Where It Conflicts With Constitutional and

Statutory Provisions.

In Bank of Nova Scotia v. United States, 487 U.S. 250,

254 (1988), this Court held that a federal court may not

invoke its inherent power to circumvent the harmless error

inquiry of Fed. R. Crim. P. 52, and observed, “[i]t follows

that Rule 52 is, in every pertinent respect, as binding as any

Statute enacted by Congress, and federal courts have no more

discretion to disregard the Rule’s mandate than they do to

disregard constitutional or statutory provisions.”

In United States v. Paynor, 447 U.S. 727 (1980), this

Court ruled that the district court erred when it invoked its

inherent power to suppress evidence even though an illegal

search did not violate the accused’s Fourth Amendment

rights, finding that, “[w]Jere we to accept this use of the

supervisory power, we would confer on the judiciary

discretionary power to disregard the considered limitations of

the law it is charged with enforcing. We hold that the

supervisory power does not extend so far.” /d. at 737; see

also, Societe Internationale pour Participations Industrielles

et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209 (1958)

(rejecting the appellate court’s reliance on inherent power to

uphold a dismissal of a complaint for failure to comply with

a production order, holding, “there are constitutional

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limitations upon the power of courts, even in the aid of their

own valid purposes, to dismiss an action without affording a

party the opportunity for a hearing on the merits of his

cause.”).

Indeed, in Thomas, 474 U.S. 140, where this Court

allowed the waiver rule at issue here, this Court observed,

“[ejven a sensible and efficient use of the supervisory power,

however, is invalid if it conflicts with constitutional or

statutory provisions. A contrary result ‘would confer on the

judiciary discretionary power to disregard the considered

limitations of the law it is charged with enforcing. ”” Id. at

148 (citing Payner, 447 U.S. at 737).

The discord among the circuits in considering exceptions

to their waiver rules, and as applied by the Sixth Circuit in

the manner in which it considers exceptions to its waiver rule,

has had the practical effect of denying Due Process to the

Petitioner in the instant case.

D. The Sixth Circuit’s Waiver Exceptions.

The Sixth Circuit excuses the waiver provision “in the

interest of justice”. Kelly v. Withrow, 25 F.3d 363, 366 (6

Cir. 1994 ), cert. denied, 513 U.S. 1061 (1994): see also,

Kent v. Johnson, 821 F.2d 1220, 1223 (6" Cir. 1987).

Compliance is also excused in the Sixth Circuit when a

district court considers untimely objections. Patterson v.

Mintzes, 717 F.2d 284 (6" Cir. 1983). In Patterson, the

Court concluded that, “when written objections to a

magistrate’s report are tendered beyond the 10 day period of

28 U.S.C. § 636(b)(1), but are nevertheless filed and

considered by the district court, the criteria identified in

Walters in justification of the waiver rule promulgated therein

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dissipate and the rule will not apply to bar appellate review.”

Id. at 286; see also, Kent, 821 F.2d at 1223.

The underlying rationale, as explained by the Court in

Patterson is that, “[t}he district court, rather than the

magistrate, is charged with the ultimate responsibility of

properly adjudicating the Article III controversy before it.

Accordingly, the district court may place upon the

magistrate’s recommendation such reliance as is warranted

through the ‘exercise of sound judicial discretion.’” Jd. at

287. (citation omitted).

In Kent, 821 F.2d 1220, the court decided to entertain the

appeal “in the interests of justice” because the appellant did

not receive the report and recommendation until ihe eleventh

day, holding that, “[t}he interests of justice must be weighed

on a case by case basis.” Jd.

E. The Split Among the Circuits in Applying

Exceptions to Their Waiver Rules.’

Like the Sixth Circuit, many other courts hz held that

where a district court considers a late-filed objection, the

court’s waiver rule does not apply. See, United States v.

Robinson, 30 F.3d 774, 777 (7" Cir. 1994) (holding that its

appellate waiver rule would not apply when untimely

objections are not “egregiously late” and the opposing party

' The Third and Ninth Circuits do not apply an appellate waiver

rule t6 accepted unobjected-tc proposed legal conclusions °a a

magistrate judge’s report. See, Henderson v. Carlson, 812 . 2d

874, 878-79 (3d Cir.), cert. denied, 484 U.S. 837 (1987); Flaten

v. Secretary of Health & Human Servs., 44 F.3d 1453, 1458 (9%

Cir. 1995). The First Circuit has not applied any exceptions to its

waiver rule. See, Davet v. Maccarone, 973 F.2d 22, 31 (1* Cir.

1992).

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has not been prejudiced); see also, Nabors v. United States,

929 F.2d 354, 355 (8" Cir. 1990) (holding time was

“implicitly enlarged where district court considered untimely

objections.”); Grandison v. Moore, 786 F.2d 146 (3" Cir.

1986) (remanding trial court’s order adopting a magistrate’s

findings and conclusions in order for district court to consider

whether plaintiff adequately justified delay in filing

objections).

The Second Circuit has created an excstion for pro se

litigants unless the magistrate’s report “explicitly states” that

failure to object to the report within ten days will preclude

appellate review and specifically cites 28 U.S.C. § 636(b)(1),

Fed. R. Civ. P. 72, 6(a) and 6(e). F.D.1.C. v. Hillcrest

Associates, 66 F.3d 566, 569 (2™ Cir. 1995).

Like the Second Circuit, in the Tenth and Fourth Circuits,

the rule does not apply to a pro se litigant’s failure to object

when the magistrate’s order does not apprise the pro se

litigant of the consequences of a failure to object. Moore v.

United States, 950 F.2d 656, 659 (10" Cir. 1991); Wright v.

Collins, 766 F.2d 841, 846-47 (4" Cir. 1985). The Tenth

Circuit also holds the waiver rule “need not be applied when

the interests of justice so dictate.” Moore, 950 F.2d at 659.

The Fifth Circuit and Eighth Circuits have a “plain error”

exception. Douglass v. United Servs. Auto. Ass'n, 79 F.3d

1415, 1428-1429 (5" Cir. 1996); Thompson v. Nix, 897 F.2d

356, 357 (8" Cir. 1990). The Eleventh Circuit reviews

accepted unobjected-to proposed factual findings for “plain

error or manifest injustice.” See, Resolution Trust Corp. v.

Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11" Cir.

1993).

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F. In this Case, the Arbitrary Application of the

Waiver Rule and Exceptions by the Court of

Appeals Denied Petitioner Due Process.

In Thomas, 474 U.S. at 146, this Court stated that, “[t]he

Sixth Circuit has also shown that its [waiver] rule is not

jurisdictional by excusing the procedural default in a recent

case. See Patterson v. Minizes, supra (considering appeal on

merits despite pro se litigant’s late filing of objections). We

therefore conclude that neither the intent nor the practical

effect of the Sixth Circuit’s waiver rule is to restrict the

court’s own jurisdiction.”

In the instant case, the Court of Appeals refused

Petitioner’s appeal, disregarding the court’s own exception to

its waiver rule, as explained in Patterson v. Mintzes, where

appeal is allowed if the district court entertains late-filed

objections. While recognizing the district court did, in fact,

entertain the Petitioner’s late-filed objections, the court

distinguished Patterson, stating, “[t]here the district court

considered the untimely objections on the merits. Id. By

contrast, in this case, the district court considered this matter

under Rule 60(b) only, not on the merits.” (App. at 9a-10a).

However, the Sixth Circuit previously held in Dunn vy.

State of Ohio, 42 F.3d 1388 (6” Cir. 1994), that it would

consider an appeal and not apply the waiver rule based upon

the Patterson exception where, as in this case, the district

. court considered a late-filed objection under a Fed. R. Civ. P.

60(b) standard.

The Court of Appeals’ refusal to apply the Patterson

exception to its waiver rule had the effect of denying the

Petitioner her statutory right of appeal. Furthermore, where

the court applied its late-filed objection exception in Dunn but

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not in the instant case, where both cases involved objections

reviewed under a Rule 60 standard, the refusal to hear the

Petitioner’s appeal was an arbitrary denial of Due Process.

The Due Process Clause of the Fifth Amendment asserts

that no person shall “be deprived of life, liberty, or property

without due process of law.” The Constitution does not

create property interests but instead extends various

procedural safeguards to certain interests “that stem from an

independent source such as a [federal] law.” Board of Regents

v. Roth, 408 U.S. 564, 577 (1972). A claim of entitlement

under federal law, to be enforceable, must be derived from

statute or legal rule or through a mutual understanding. Perry

v. Sinderman, 408 U.S. 493, 601-602 (1972).

When presented with a Due Process challenge, a court

must determine, first, whether there has been a deprivation of

a property interest, and, if so, what process is due. Morrissey

v. Brewer, 408 U.S. 471, 481 (1972).

Petitioner’s entitlement here is clear because Petitioner’s

right to appeal is vested in 28 U.S.C. § 1291. Accordingly,

because Petitioner possessed a cognizable property interest

within the terms of the Fifth Amendment, the Constitution

obligated the district court to afford her procedural due

process before depriving her of her property in denying her

the opportunity to have her appeal heard.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 437

(U.S. 1982), this Court held that a party’s Due Process rights

were violated where state arbitrarily failed to convene a

hearing within limitations period, thus extinguishing the

claim.

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By applying an exception to the waiver rule in Dunn v.

State of Ohio, where the late-objection was considered under

a Rule 60 standard, but refusing to do so in the case at bar,

without ¢istinction, the Sixth Circuit is arbitrarily applying its

waiver rule and exceptions, and thus denying the Petitioner

her statutory right to appeal.’

Where there is discord among the decisions of the circuit

courts of appeal, and within the Sixth Circuit, in how the

courts apply exceptions to their waiver rules, such that the

Due Process rights of litigants is being eviscerated by the

arbitrary and dissonant application by the appellate courts,

this Court should review the issue it previously reserved, of

“what standards the courts of appeals must apply in

considering exceptions to their waiver rules.” 474 U.S. at

155 n.15 (emphasis added).

II. This Court Should Grant Certiorari Where The

District Court Committed Plain Error.

A grant of certiorari is appropriate here, pursuant to

Supreme Court Rule 10(a), because the district court decision

below directly conflicts with the controlling authority from the

State court of last resort.

? Additionally, as noted above, the Second, Fourth and Tenth

Circuits all provide an exception to their waiver rule for pro se

litigants who do not receive adequate notice of waiver. Here,

Petitioner’s former attorney withdrew his representation on March

14, 2004, and Petitioner filed her objections, pro se, on March 23,

2004, just one day outside the ten days provided under Fed. R. Civ.

P. 59 for review on the merits of the court’s March 3, 2004 Order

(when considered with Fed. R. Civ. P. 6 time computation), and

certainly within ten days of Petitioner’s receipt of the decisions

from her former attorney on March 18, 2004.

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Additionally, the refusal by the Court of Appeals to

address the issue of whether the district court committed plain

error, and instead reviewing the case de novo (as discussed in

section III, infra.) is a clear departure from the accepted and

usual course of judicial proceedings, and a sanctioning of the

district court’s own such departure.

This Court has, on many occasions, granted certiorari

where there is a question of whether a doubtful determination

or plain error was committed below. See, Kyles v. Whitley,

514 U.S. 419, 422 (1995); Arizona v. Maricopa County

Medical Society, 457 U.S. 332, 336 (1982); New York Transit

Authority v. Beazer, 440 U.S. 568, 571 (1979); Perma Life

Mufflers v. International Parts Corp., 392 U.S. 134, 136

(1968); Williams v. Lee, 358 U.S. 217, 218 (1959).

In this case, there was plain error committed by the

District Court in its finding that the Petitioner’s former

attorney had apparent authority to settle the lawsuit on her

behalf. In determining the enforceability of a settlement

agreement, the state law of the state where the purported

agreement was entered into is applicable. See, Zink v. GE

Capital Assurance Co., 73 Fed. Appx. 858, 861 (6" Cir.

2003). In the case at bar, the alleged Settlement Agreement

was entered into in Tennessee, and as such, Tennessee law

must apply.

The District Court found the Petitioner’s former attorney

was clothed with apparent authority. However, Tennessee law

leaves attorneys naked as to such authority. It is the client

who holds the authority as to whether to settle a matter, and

it is the client who must expressly give such authority.

In Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct. App.

1992), the court held that, “{t}he general rule in Tenness<e is

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that an attorney cannot surrender substantial rights of a client,

including agreeing to dismissal of litigation which

permanently bars a client from pursuing his claim, without the

express authority of the client.” (citing, Long v. Kirby-Smith,

292 S.W.2d 216, 222 (Tenn. 1956); Davis v. Home Insurance

Co., 155 S.W. 131, 133 (Tenn. 1913)).

In the instant case, the District Court held that the

Petitioner never understood the terms of the agreement,

holding “the plaintiff herself testified she thought the

$28,500.00 was simply a first installment for $100,000.00.

This mistaken understanding of the settlement amount

apparently came from her own attorney’s settlement demand,

which was rejected, of $100,000.00.” (App. at 25a). The

court found that it was the Petitioner’s former attorney who

accepted the settlement on her behalf, holding that, “the

plaintiff clothed her attorney to enter into a settlement on her

behalf of all her claims against defendants.” (App. at 26a).

The opinion of the Magistrate was plain error because the

applicable law holds that attorneys do not have apparent

authority to settle matters, and that the client must give their

express authority to settle a case. As such, the district court

below committed plain error in finding that the Petitioner’s

former counsel had apparent authority to compromise this suit

on her behalf.°

* The district court also committed plain error in finding that the

purported Settlement Agreement was met on all material terms as

it held, “[Petitioner’s former attorney] entered into an agreement

with the defendants in which the material but simple terms of the

agreement were set.” (App. at 25a). Here, the magistrate’s

analysis stopped with finding the Petitioner’s former attorney had

apparent authority to settle the suit - which was plain error.

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Without the intervention of this Court, the plain error of

the court below will lead to a miscarriage of justice in the

termination of Petitioner’s suit in an unjust compromise to

which she never assented.

I11.This Court Should Grant Certiorari Where The Court

Of Appeals Acted Contrary To Precedent Of This

Court And Overstepped The Bounds Of Its Duty

Under Federal Rule of Civil Procedure 52(a) In

Weighing The Evidence De Novo And Making Factual

Findings.

| In the instant case, the Court of Appeals, despite its

finding as to waiver, considered the case on its merits, finding

against the Petitioner.‘ In its review of the case, however, the

court blatantly overstepped the bounds of its review, in

considering the record de novo and making factual

determinations contrary to that of the district court.°

* The court stated that, “[e]ven if we consider the ‘merits of

Plaintiff's claims, she cannot prevail.” (App. at 10a). The Court

of Appeals then made specific, binding holdings in this case. The

character of its review makes clear these findings were not dicta.

Even if this Court considers the review of the record by the Court

of Appeals to be dicta, the deliberate and unrestrained review of the

record, de novo, so far departed from the accepted and usual course

of judicial proceedings that it warrants review by this Court.

* The panel also improperly found that the Appellant never raised

the issue “of the proper law to be applied” below. This is

semantics without substance. Taken to its logical conclusion, this

holding would throw into question every case in every federal

court. It is preposterous to require that a litigant must first raise,

as a separate issue, whe’er the court must apply the proper law.

This holding is a clear departure from the accepted and usual course

of judicial proceedings, such that certiorari is warranted under

18

Supreme Court Rule 10(c) states that certiorari may be

granted where a “United States Court of Appeals has decided

an important question of federal law in a way that conflicts

with relevant decisions of this Court,” and the Court has on

many occasions undertaken concideration of a case where the

decision of a court of appeals appears to have misapplied,

misconstrued or misconceived prior precedent of this Court.

See, Elder v. Holloway, 510 U.S. 510, 515 (1994); Schlude

v. Commissioner, 372 U.S. 128, 130 (1968); Wilkinson v.

United States, 365 U.S. 399, 401 (1961); Upshaw v. United

States, 335 U.S. 410 (1948); McCandles v. Furlaud, 296

U.S. 140 (1935).

Federal Rule of Civil Procedure 52(a) provides that,

“[flindings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the witnesses. ”°

Supreme Court Rule 10({a). A court must always apply the proper

law to the substantive issue before it. In the instant case, the

Petitioner properly raised the issue of apparent authority, which

was the issue below. Application of Tennessee law simply provides

the correct solution to the issue. The issue was properly raised

below by the appellant in her objections that were considered by the

District Court, and on appeal.

° Additionally, the Sixth Circuit holds that the proper standard of

review in deciding whether to affirm the district court’s decision to

uphold a settlement agreement [which was the issue below], is for

the Court of Appeals to review the district court’s factual findings

for clear error and review de novo the district court’s conclusions

of law. Performance Unlimited, Inc. v. Questar Publishers, Inc.,

52 F.3d 1373, 1381 (6th Cir. 1995).

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This Court has clearly and consistently held that, “[t}he

reviewing court oversteps the bounds of its duty under Fed.

R. Civ. P. 52(a) if it undertakes to duplicate the role of the

lower court. ‘In applying the clearly erroneous standard to the

findings of a district court sitting without a jury, appellate

courts must constantly have in mind that their function is not

to decide factual issues de novo.’” Anderson v. City of

Bessemer City, North Carolina, 470 U.S. 564, 572 (1983)

(citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U.S. 100, 123 (1969)).

“(Ejven when the trial judge adopts proposed findings

verbatim, the findings are those of the court and may be

reversed only if clearly erroneous.” Jd. (citing United States

v. Ei Paso Natural Gas Co., 376 U.S. 651, 656-657 (1964);

United States v. Marine Bancorporation, 418 U.S. 602, 615,

n. 13 (1974)).

In the instant case, the decision of the Court of Appeals is

in direct conflict with prior holdings of this Court, and with

Fed. R. Civ. P. 52(a), as the Court of Appeals reviewed the

facts de novo and came to a conclusion not reached by the

district court.

The Magistrate below held that the Petitioner never

understood the terms of the settlement agreement, holding,

that the Petitioner had a “mistaken understanding of the

settlement amount.” (App. at 25a). After finding that the

Petitioner did not understand the terms of the agreement, the

Magistrate held that, “the plaintiff clothed her attorney with

apparent authority to enter into a settlement on her behalf.”

(App. at 26a).

In its opinion, the Court of Appeals reviewed de novo the

district court’s factual finding that the Petitioner did not

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understand the terms of the agreement, holding that, “in this

case, a review of her testimony before the magistrate reflects

that the Plaintiff accepted the offer of $28,500 and later

reversed her acceptance,” and further held, “it is clear from

the record that Plaintiff initially gave [her former counsel]

express authority to settle the matter, and then later reversed

her position.” (App. at 12a, 14a) (emphasis added). By

making factual findings not made by the district court, the

Court of Appeals unabashedly reviewed the record de novo,

with complete disregard for standard under Fed. R. Civ. P.

52(a) and prior holdings of this Court.

Review under Fed. R. Civ. P. 52(a), “plainly does not

entitle a reviewing court to reverse the finding of the trier of

fact simply because it is convinced that it would have decided

the case differently.” Anderson, 470 U.S. at 572.

By making a finding that the Appellant accepted the offer,

which finding the District.Court never made, the panel

abandoned the proper standard of review, and set a dangerous

precedent of inserting itself into the role of the district court

trier of fact. As such, this Court should reverse the holdings

of the Court of Appeals that were based upon an sae: aie ied de

novo review of the record.

CONCLUSION

For the reasons set out, this Court should grant the

petition for writ of certiorari, reverse the judgment of the

Court of Appeals and remand for trial.

21

Respectfully submitted,

Amelia C. Roberts

707 Georgia Avenue, Suite 401

Chattanooga, TN 37402

Telephone (423) 266-8400

Facsimile (423) 265-8055

Counsel for Petitioner

la

APPENDIX A

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 04-5421

[Filed September 29, 2005]

TONYA HARRIS, an Administratrix of —_)

the Estate of decedent Torris Harris )

Plaintiff-Appellant, )

)

Vv. )

3 : )

CITY OF CHATTANOOGA, et al., )

Defendants-Appellees. )

)

ORDER

BEFORE: SUHRHEINRICH, BATCHELDER, and

GIBSON, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

* Hon. John R. Gibson, Senior United States Circuit Judge for the

Eighth Circuit Court of Appeals, sitting by designation.

2a

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 04-5421

[Filed June 15, 2005}

TONYA HARRIS, an Administratrix of the Estate )

of decedent Torris Harris,

Plaintiff-Appellant;

Vv.

CITY OF CHATTANOOGA;

JUSTIN MCCOMMON,

MARTIN PENNY, CHRIS SMITH,

DAVID ALLEN, MARK SMELTZER,

City of Chattanooga Police

Officers, in Their Official and Individual

Capacities; CHARLES R. KINSEY,

CHRISTOPHER L. GAYNOR, Private

Citizens in Their Capacity as Agents for

the City of Chattanooga and in their

Individual Capacities,

Defendants- Appellees.

i ee ee ee

4a

OPINION

SUHRHEINRICH, J

Plaintiff Tonya Harris, individually and as administratrix

for the estate of Torris Harris, appeals from the order of the

district court granting Defendants’ motion to enforce a

settlement agreement. We AFFIRM.

I.

This action arises out of the suffocation death of Torris

Harris, Tonya Harris’s son, after an altercation with five

Chattanooga police officers, Justin McCommon, Martin

Penny, Chris Smith, David Allen, Mark Smeltzer, and two

private citizens, Charles Kinsey, and Christopher Gaynor. On

December 26, 2001, Defendants initiated a traffic stop of

Torris Harris. Harris exited the vehicle, and the officers

chased him. After they caught him, all Defendants restrained

him. Torris died following the struggle.

On December 26, 2002, Plaintiff filed a complaint against

the City of Chattanooga, five City of Chattanooga police

officers, and two private citizens, alleging violations of 42

U.S.C. §§ 1983, 1985. On November 14, 2003, Harris’s

former counsel, Robin Ruben Flores, made a written demand

to the City of Chattanooga to settle the case for $100,000. On

December 18, 2003, Flores sent by facsimile a letter to Phil

Noblett. The letter is entitled “Acceptance of Offer to Settle”

and states as follows:

Thank you for your attention to this case. As we

discussed yesterday, December 17, via telephone, my

client has accepted your offer on behalf of your client,

the City of Chattanooga, to settle this matter for a sum

Sa

of twenty-eight thousand five hundred dollars

($28,500.00). I assume that your client will also pay

all court costs. I further assume that this amount shall

constitute a settlement of all claims associated with

this matter, state and federal, present and future.

This letter was copied to Ms. Tonya Harris, Lee Davis, Esq.,

Johnny Houston, Esq., W. Jeffrey Hollingsworth, Esq., John

T. Rice, Esq.

On December 18, 2004, Noblett sent the following letter

to Flores:

Pursuant to our telephone conversation yesterday

afternoon, this letter will confirm that your client has

agreed to settle her claims against the City of

Chattanooga and all other parties regarding the death

of Torris Harris in the amount of $28,500.00. It is my

understanding that this settlement will resolve all

outstanding claims that your client has filed in federal

court and in state court concerning this matter.

Attached with this letter you will find, pursuant to our

discussion, an Order of Dismissal for both lawsuits

which will be filed in federal court and in Circuit

Court and a Release of All Claims which I have

prepared reflecting this settlement.

A copy of this letter was sent to attorneys Lee Davis, Johnny

D. Houston, Jeffrey Hollingsworth, and John T. Rice. As

noted in the letter, enclosed were a proposed “AGREED

ORDER OF DISMISSAL” for the state action and a proposed

“AGREED ORDER OF DISMISSAL” for the federal action.

These proposed orders would dismiss both causes of action

with prejudice as to all defendants. Also enclosed was a

proposed “RELEASE OF ALL CLAIMS” releasing and

6a

| forever discharging all claims against the defendants in

| consideration of the sum of $28,500.00.

Attorney Flores stipulated to the correctness of both

letters. (JA. 204). In a letter dated December 22, 2003,

postponing a hearing on a motion to compel filed by defendant

Kinsey, Flores remarked to Attorney John Rice that “as you

are probably now aware, my client has accepted an offer to

settle the cases in state and federal courts as to all

defendants.”

On January 1, 2004, Flores sent the following letter to

Noblett:

My client has reversed her position on her acceptance

of your client’s offer to settle this matter for $

28,500.00. She now rejects the offer and does not

wish to sign the documents you forwarded to my

office on December 18, 2003.

Instead, she makes a counter offer to settle for

seventy-five thousand dollars ($75,000.00), plus the

funeral costs and expense and medical bills we have

submitted to you.

I am aware that you are free to file a motion to enforce

the settiement Ms. Harris has accepted. However, she

now claims that she believed that she was accepting an

offer of one hundred thousand dollars.

On January 13, 2004, subsequent to the settlement

rejection, Plaintiff filed documents entitled “Motion for

Enlargement of Time to Disclose Expert Witnesses,” and a

“Motion for Enlargement of Time.” In the first motion, —

Plaintiff stated that she “would show that the parties reached

7a

a settlement agreement on or about December 17, 2003, and ©

that Plaintiff's counsel, in anticipation of the settlement,

halted all work not associated with finalizing the settlement.

Plaintiff would further show that she rejected the settlement

in early January.”

After receiving notice of rejection of the settlement

agreement, Defendants filed motions to enforce the contract

of settlement. The matter was referred by the district court to

the magistrate judge pursuant to 28 U.S.C. §

636(b)(1)(B)&(C) for a report and recommendation. The

magistrate judge conducted an evidentiary hearing on

February 3, 2004. The magistrate judge found that

(t]he evidence adduced in this case unequivocally

indicates that the plaintiff hired Attorney Flores as her

agent in pursuing her claim against defendants and

later in negotiating a settlement of her ciaims. Flores

entered into an agreement with the defendants in

which the material but simple terms of the agreement

were set: all plaintiff's claims against all defendants

arising from her son’s death on December 26, 2001,

were released and waived for the sum of $28,500.00.

There is a0 evidence to the contrary on that score even

though the plaintiff herself testified she thought the

$28,500.00 was simply a first installment of a

settlement for $100,000. This mistaken understanding

of the settlement amount apparently came from her

own attorney’s settlement demand, which was

rejected, of $100,000.00.

In footnote two, the magistrate judge specifically indicated

that any objections had to be served and filed within ten days

or the right to appeal the district court’s order was waived.

8a

None of the parties filed objections. On March 3, 2005,

the district court accepted and adopted the magistrate’s report,

granted Defendants’ motion, and entered judgment. Plaintiff

filed a ietter dated March 23, 2004, more than ten days after

the order entered by the magistrate judge, which was treated

as a motion for reconsideration. This letter states that on

March 12, 2004, Plaintiff terminated Attorney Flores’s

employment. Plaintiff's motion also requested that the district

court to set aside its order adopting the magistrate’s report

and recommendation. Plaintiff filed a pro se notice of appeal ©

on Apri! 2, 2004.

Flores was allowed to withdraw on April 8, 2004, by .

order of the magistrate judge. On May 14, 2004, the district

court issued an order denying Plaintiff's motion for

reconsideration. Because the order was not filed within ten

days of the entry of the court’s order of summary judgment,

the court treated the motion as a Rule 60(b) motion for relief

from judgment instead of a Rule 59(e) motion to alter or

amend the judgment. The district court held that there were

no circumstances justifying relief from judgment under Rule

60(b). The district court stated in relevant part:

Plaintiff's circumstances, while undoubtedly

frustrating and emotional, do not amount to the

unusual or extreme situation (sic) contemplated by

Rule 60(b)(6). Plaintiff’s contentions and

representations regarding Attorney Flores’ actions and

her own state of mind do not call into question either

the R&R or the Court’s previous Order enforcing the

settlement agreement. The Court entered the Order

enforcing the settlement agreement upon concurring

with Magistrate Judge Carter’s conclusion attorney

Flores had apparent authority to settle Plaintiff's case

on her behalf. Whether or not attorney Flores had

9a

actual authority to do so has no impact on liability as

between Plaintiff and the various Defendants. At this

point, Plaintiff's only recourse lies in a separate action

against attorney Flores.

The district court therefore denied Plaintiff's motion for

reconsideration. Plaintiff is currently represented by counsel

on appeal.

A.

Il.

On appeal, Plaintiff contends that the district court erred

in failing to apply Tennessee law to the issue of enforcement

of the proposed Settlement Agreement. However, because

Plaintiff failed to object timely to the magistrate judge’s report

and recommendation, despite notice from the magistrate, she

waived the right to appeal from the district court’s order

affirming the magistrate judge’s report. United States v.

Campbell, 261 F.3d 628, 632 (6th Cir. 2001); United States

v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); see also

Thomas v. Am, 474 U.S. 140, 144, 155, 88 L. Ed. 2d 435,

106 S. Ct. 466 (1985)(affirming constitutionality of Sixth

Circuit rule).'

' Relying on Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983),

Plaintiff contends that the waiver of her appeal was abrogated by

the district court’s review of her late filing. In Patterson, this Court

concluded that “when written objections to a magistrate’s report are

tendered beyond the 10-day period of 28 U.S.C. § 636(b)(1), but

are nevertheless filed and considered by the district court, the

criteria identified in Walters in justification of the waiver rule

promulgated therein dissipate and the rule will not apply to bar

appellate review.” /d. at 286. Patterson is distinguishable. There,

the district court considered the untimely objections on the merits.

Id. By contrast, in this case, the distrie* court considered this

10a

In short, Plaintiff's failure to timely object to any matters

addressed in the magistrate judges report and recommendation

constitutes a waiver of these issues on appeal. More to the

point, she has waived the three issues presented on appeal: (1)

whether the district court erred in [sic]’ applying Tennessee

law regarding enforcement of the proposed settlement

agreement; (2) whether the district court erred in finding

Plaintiff's former counsel had “apparent authority to settle

lawsuits,” and (3) whether the district court erred in finding

the proposed settlement agreement had been met on all

material terms.

Plaintiff's appeal is also defective because she failed to

raise the issue of the proper law to be applied until this

appeal. It is well-settled that this Court will not consider

arguments raised for the first time on appeal. See Foster v.

matter under Rule 60(b) only, not on the merits.

Because the Walters rule is not jurisdictional, it may be excused

in two situations. First, issues not raised in an objection may be

considered on appeal if the district court addressed them. /d.;

Roach v. Chater, No. 96-5780, 1997 WL 330649, at *2 (6th Cir.

June 16, 1997)(order). As noted, the district court did not in this

case address the merits. In addition, we may choose not to adhere

to the Walters rule if exceptional circumstances indicate that it

would be in the “interests of justice” to consider the merits. Kent

v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987). In this

situation, the Supreme Court has suggested that this exception

might be applicable where the district court has committed “plain

error.” Thomas, 474 U.S. at 155 & n.15. The record does not

support application of the exception here, however.

* The opinion contains a typographical error inasmuch as the

question presented was actually, “whether the district court erred

in failing to apply Tennessee law.”

lla

Barilow, 6 F.3d 405, 407 (6th Cir. 1993)(issues presented for

the first time on appeal are waived). Even if we consider the

merits of Plaintiff's claims, she cannot prevail.

Plaintiff contends that the magistrate judge erred in

applying Michigan law instead of Tennessee law in

determining whether the settlement agreement was

enforceable. In support, she points out that the agreement was

entered into in Tennessee. See Capital Dredge & Dock Corp.

v. City of Detroit, 800 F.2d 525, (6th Cir. 1986); Zink v. GE

Capital Assur. Co., 73 Fed. Appx. 858, 861 (6th Cir.

2003)(holding that “the settlement agreement was entered into

in Kentucky . . . as a result, Kentucky law governs whether

the settlement agreement was enforceable”).

As Plaintiff notes, the magistrate judge did not rely upon

Tennessee law, but cited two Sixth Circuit opinions, Capital

Dredge & Dock Corp. v. City of Detroit, 800 F.2d at 530 and

Noga v. Parts Assocs., 2000 U.S. App. LEXIS 1937, 2000

WL 178385 (6th Cir. Feb. 8, 2000), which applied Michigan

law. She claims that this is problematic because Michigan law

holds that when a client hires an attorney and holds him out

as counsel representing him in a matter, “the client clothes the

attorney with apparent authority to settle claims connected

with the matter.” Capital Dredge, 800 F.2d at 530. By

contrast, Tennessee law holds that attorneys do not have

apparent authority to settle matters, but rather the client must

give express authority to settle a case.

Indeed, in Tennessee law “the general rule . . . is that an

attorney cannot surrender substantial rights of a client,

including agreeing to dismissal of litigation which

permanently bars a client from pursuing his claim, without the

12a

express authority of the client.” Absar v. Jones, 833 S.W.2d

86, 89-90 (Tenn Ct. App. Jan. 27, 1992)(citations omitted);

see also Austin Powder Co. v. Thompson, 1995 Tenn. App.

LEXIS 42, No. 03A01-9408-CH-00294, 1995 WL 33778

(Tenn. Ct. App. Jan. 27, 1995)(stating that “we adhere to the

universal rule that a client’s employment of an attorney does

not clothe the attorney with authority to compromise and

settle [the] client’s cause of action, and such authority may not

be implied” (internal quotations marks and citation omitted));

Fort Sanders Reg’! Med. Ctr. v. Collins, 1992 Tenn. App.

LEXIS 667, No. 03A01-9202-00041 , 1992 WL 184682 (Tenn.

Ct. App. Aug. 5, 1992)(same). However, in this case, a

review of her testimony before the magistrate judge reflects

that Plaintiff accepted the offer of $28,500 and later reversed

her acceptance.

Attorney Flores questioned Plaintiff about the settlement

as follows:”

? Just prior to this testimony, Plaintiff testified to the following:

Q: Okay. Tonya, what was your understanding -- What

did you understand, from me, the terms of the

settlement offer from Mr. Noblett, who is the counsel

over here . . . what did you understand the offer was

from him that I communicated to you back on

December the 16th -- the 17th?

A: 28,500.

Q: 28,500?

A: Yes. But I thought that was coming out of the hundred

thousand.

Q: Out of what hundred thousand?

13a

Q: How many times have we met as far as discussing

the terms of an offer that we made and an acceptance

of the offer; do you recall how many times?

A: Maybe about -- probably about 3 times, maybe...?

Q: About three times?

A: Yeah.

Q: Okay, was that -- where was that? Where were

those meetings?

A: Well, two was at the office. And then you called

me over the phone and told me about the settlement.

Q: Okay, an acceptance of an offer, do you recall

what we discussed about that?

A: The only thing that I remember was to accept the

$28,000 because I was losing my house.

A: I thought I had a settlement of a hundred thousand.

Q: What made you think that you had a settlement for a

hundred thousand dollars?

A: When we got the letter.

Q: What letter was that?

That was the letter that had the hundred thousand on it.

And I thought since I was losing my house, that they

would just go ahead and take part of that and take it

out of the hundred thousand.

l4a

Q: Did you feel pressured to accept the $28,000? A:

Yes, I did. Yes.

Q: You thought that -- All right. Let’s go back to the

house issue, to the house issue, Tonya. Why were you

getting ready to lose your house? Let me back up a

bit, do we agree that your house was in foreclosure?

A: Yeah.

On cross-examination by Joun Rice, Plaintiff

acknowledged that she has a college education. She further

admitted that she received a copy of the December 18, 2003

letter, which clearly stated at the top in bold type “Acceptance

of Offer to Settle.” Plaintiff also stated that she did not call to

tell her attorney that the letter was not correct. Plaintiff

admitted that she also received the December 22 letter

addressed to John Rice confirming the settlement. Finally,

Plaintiff admitted to the following:

Q: And when you got these letters, you understood

the terms of the settlement, did you not?

A: Yes, I did.

Q: And you later on decided to reject the settlement?

A: Yeah.

From Flores’ January 1, 2004 letter, and Plaintiff's own

testimony, it is clear from the record that Plaintiff initially

gave Flores express authority to settle the matter, and then

later reversed her position. By her acceptance of the offer she

gave her attorney express authority to accept the offer on her

15a

behalf. Under Tennessee law, where a principal gives an

agent express authority to settle a case, either orally or in

writing, the principal is bound by the acts of the agent within

the scope of authority expressly conferred upon the agent. S.

Ry. v. Pickle, 138 Tenn. 238, 197 S.W. 675 (Tenn. 1917). As

the district court stated at the evidentiary hearing, “I think it’s

fair to say that if a party directs their lawyer to settle a case,

and that is communicated, the fact that a person later on may

change their mind about the settlement does not affect the fact

that it is settled.” In any event, by waiting two weeks before

notifying her attorney of her intent to revoke her acceptance

of the settlement agreement, Plaintiff ratified the settlement

agreement through her silence. See Austin Powder, 1995

Tenn. App. LEXIS 42, 1995 WL 33778 at 43 (noting that

silence can amount to ratification where the party with

knowledge of the transaction fails for a reasonable time to

protest or dissent). Thus, as the district court held, any

dissatisfaction Plaintiff has regarding the settlement can only

be directed towards her attorney.

C.

Plaintiff also asserts that the district court erred in finding

that the proposed settlement agreement had been met on all

material terms, because Plaintiff never understood the most

important term, the amount of the settlement. However, as

reflected above, Plaintiff testified that she understood the

settiement agreement and later decided to reject it.

Plaintiff further alleges that she never understood that

negotiations were taking place, and therefore there was never

a meeting of the minds between herself and the defendants as

to the settlement amount. Again, the foregoing testimony

establishes that Plaintiff was aware of the fact that she was

accepting an offer of $28,500, and that she was doing so

l6a

because she was faced with the potential of losing her home.

The record also clearly shows that Plaintiff received copies of

all correspondence from her attorney relating to the

acceptance of the written settlement offer made by the City of

Chattanooga on December 17, 2003, and that she was capable

of understanding them.

In sum, there was clearly a meeting of the minds as to the

essential terms of the contract on December 18, 2003, such

that a binding contract under Tennessee law was created. The

district court did not err in enforcing it, and did not err in

finding there was no adequate basis for relief under Rule

60(b).

Il.

AFFIRMED.

17a

APPENDIX C

|

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF

TENNESSEE AT CHATTANOOGA

Case No. 1:20-CV-385

[Filed March 3, 2004]

TONYA HARRIS, )

Plaintiffs, )

)

Vv. )

)

CITY OF CHATTANOOGA, etal., )

Defendants. )

)

ORDER

United States Magistrate William B. Mitchell Carter filed

his report and recommendation pursuant to 2.8 U.S.C. §

636(b)(1) and Fed. R. Cir. P. 72(b) (Court File No. 89).

Neither party filed an objection within the given ten (10)

days.

After reviewing the record, the Court agrees with the

magistrate judge’s report and recommendation. The Court

ACCEPTS and ADOPTS the magistrate judge’s findings of

fact, conclusions of law, and recommendations pursuant to

18a

Section 636(b)(1) and Rute 72(b). Accordingly, the Court

ORDERS:

Defendants’ Motions to-Enforce a Settlement Agreement

is GRANTED (Court File Nos. 68, 72, 75, 80, and 83).

Accordingly, the Clerk of Court is hereby ORDERED TO

CLOSE THIS CASE.

SO ORDERED.

/s/

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

19a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF

TENNESSEE AT CHATTANOOGA

Case No. 1:20-CV-385

[Filed February 11, 2004]

TONYA HARRIS,

Plaintiffs,

Vv.

CITY OF CHATTANOOGA,

JUSTIN MCCOMMON, MARTIN PENNY,

CHRIS SMITH, DAVID ALLEN,

MARK SMELTZER, CHARLES KINSEY,

And CHRISTOPHER GAYNOR,

Defendants.

i

REPORT AND RECOMMENDATION

I. Introduction

Defendants City of Chattanooga, Martin Penny. Chris

Smith, David Allen, and Charles Kinney have filed Motions

to Enforce a Settlement Agreement which have been referred

to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B)&(C)

20a

for a Report and Recommendation by the District Court

(Court File Nos. 68, 72, 75, and 80). The undersigned

Magistrate Judge shall also address in this report and

recommendation defendants Justin McCommon’s, Mark

Smeltzer’s and Christopher Gaynor’s motion to enforce

settlement (Court File No. 83).' This action arises from an

incident occurring on December 26, 2001, involving

defendants Justin McCommon, Martin Penny, Chris Smith,

David Allen, Mark Smeltzer, Charles Kinsey, Christopher

Gaynor, and plaintiff Tonya Harris’ now deceased son, Torris

Harris. At the time in question, all of the individual

defendants were police officers with the Chattanooga Police

Department. The plaintiff alleges that her son, Torris Harris,

was subjected to an unlawful arrest and that the defendants

used excessive force in arresting him resulting in Torris

Harris’ death. The plaintiff, as administratrix of Torris

Harris’ estate, seeks damages for the alleged violations of

Torris Harris’ civil rights pursuant to 42 U.S.C. §§ 1983 and

1985. All defendants in this case seek to enforce a settlement

agreement which defendants assert have been reached with the

plaintiff.

' The District Court entered the Order of Referral on January 26,

2004. Subsequently, on January 28, 2004, defendants Justin

McCommon, Mark Smeltzer, and Christopher Gaynor also filed a

Motion to Enforce Settlement Agreement between the plaintiff and

defendants (Court File No. 83). McCommon, Smeltzer, and

Gaynor adopted and incorporated by reference into their motion the

other defendants’ motions to enforce contract of settlement. Even

though the Order of Referral does not specifically refer this motion

(Court File No 83) to the undersigned magistrate judge, because it

concerms the same issue and requests the same relief as the other

order referred by the District Court, the undersigned shall address

this motion as well.

21a

II.Relevant Facts

An evidentiary hearing was held on Monday, February 3,

2004, on defendants’ motions to enforce the settlement

agreement. The undersigned relies on the evidence adduced at

this evidentiary hearing as well as the evidentiary materials

accompanying the defendants’ motions in preparing this

recitation of facts. |

While this particular claim has been pending in the United

States District Court, plaintiff brought another cause of action

in the Circuit Court of Hamilton County, Tennessee, against

the same defendants arising from the same incident under

Docket No. 02C-2227 (Affidavit of John Rice, | 4, Court File

No. 69). By letter dated December 18, 2003, the plaintiff's

counsel, Atty. Robin Reuben Flores, sent by facsimile and by

United States mail a letter to Phil Noblett, attorney for the

City of Chattanooga (City), in this matter. The letter was

entitled, “Acceptance of Offer to Settle” (See Exhibit 1, Court

File No. 69). The letter stated:

As we discussed yesterday, December 17, via

telephone, my client has accepted your offer on behalf

of your client, The City of Chattanooga, to settle this

matter for a sum of twenty-eight thousand five

hundred dollars ($28,500.00). I assume that your

client will also pay all court costs. I further assume

that this amount will constitute a settlement of all

claims associated with this matter, state and federal,

present and future.

Id. The letter was copied to the plaintiff, Ms. Tonya Harris,

and to Attys. Lee Davis, Johnny D. Houston, Jeffery

Hollingsworth, and John T. Rice. Lee Davis represents Mark

Smeltzer. Johnny D. Houston represents Christopher Smith.

224

Jeffery Hollingsworth represents David Allen. John T. Rice

represents Charles R. Kinsey, and Phil Noblett represents the

City of Chattanooga, Justin McCommon, Christopher

Gaynor, and Martin Penny.

By letter dated December 18, 2003, City Attorney Phil

Noblett wrote plaintiff's counsel, Robin Flores:

Pursuant to our telephone conversation yesterday

afternoon, this letter will confirm that your client has

agreed to settle her claims against The City of

Chattanooga and all other parties regarding the death

of Torris Harris in the amount of $28,500.00. It is my

understanding that this settlement will resolve all

outstanding claims that your client has filed in federal

court and in state court concerning this matter.

Attached with this letter you will find, pursuant to our

discussion, an Order of Dismissal for both lawsuits

which will be filed in federal court and in Circuit

Court and a Release of All Claims which I have

prepared reflecting this settlement.

(Exhibit 2, Court File No. 69). A copy of this letter was sent

to Attys. Lee Davis, Johnny D. Houston, Jeffery

Hollingsworth, and John T. Rice. A proposed “AGREED

ORDER OF DISMISSAL” for the state action and a proposed

“AGREED ORDER?” of dismissal for the federal action were

enclosed in the letter. These proposed orders would dismiss

with prejudice the entire causes of action in both state and

federal courts as to all defendants (See Exhibits 3 and 4,

Court File No. 69). Also enclosed with Mr. Noblett’s letter

was a proposed “RELEASE OF ALL CLAIMS” releasing

and forever discharging all claims against the defendants in

consideration of the sum of $28,500.00 (Exhibit 5, Court File

No. 69). In his affidavit, Atty. Jeffery Hollingsworth, who

23a

represents defendant David Allen, stated that Mr. Noblett sent

him a letter on December 18, 2003, confirming the terms of

the settlement agreement and confirming that ail other parties

were to be included in the proposed Release (Court File No.

77, 16).

By letter dated December 2, 2003, plaintiff's attorney,

Robin Flores, wrote counsel for Charles Kinsey, John Rice,

the following:

As you probably are now aware, my client has

accepted an offer to settle the cases in state and federal

courts as to all defendants. I have notified my intended

experts about this development. Thus, I believe the

discovery issue is now moot. I assume that you will

strike your motion to compel discovery responses. If

I am wrong, please let me know.

The letter was copied to Tonya Harris (Exhibit 6, Court File

No. 69).

By letter dated January 1, 2004, Arty. Flores wrote the

City’s counsel, Phil Noblett, to inform him that she (plaintiff)

had rejected the $28,500.00 settlement offer:

My client has reversed her position on her acceptance

of your client’s offer to “settle this matter for

$28,500,00. She now rejects the offer and does not

wish to sign the documents you forwarded to my

office on December 18, 2003.

Instead, she makes a counter-offer to settle for

Seventy-five thousand dollars ($75,000.00). plus the

funeral costs and expense [sic] and medical bills we

have submitted to you.

24a

I am aware that you are now free to file a motion to

enforce the settlement Ms. Harris has accepted.

However, she now claims that she believed that she

was accepting an offer of $100,000.00.

(Exhibit 7, Court Pile No. 69).

In his affidavit, Atty. Phil Noblett stated that he never

made any settlement offer to Atty. Flores for $100,000.00

(Court File No. 74, 2). During the evidentiary hearing,

plaintiff testified that she thought the $28,500.00 settlement

was simply the first installment of a $100,000 settlement

agreement. No evidence was produced, however, to the effect

that any defendant, through counsel or otherwise, ever made

a settlement offer of $100,000 though plaintiffs counsel did

state that he had originally made a demand of the defendants

for $100,000 to settle the case. The plaintiff also testified at

the evidentiary hearing that she talked with her attorney three

or four times before finally agreeing to the settlement

agreement with the defendants.

Finally, on January 15, 2004, the plaintiff filed a motion

for “enlargement of time for expert witness disclosures under

F.R.C.P. 26 (Court File No. 70). In this motion, the plaintiff

stated that she was requesting additional time to disclose her

expert testimony and “[flor cause, Plaintiff would show that

the parties reached a settlement agreement on or about

December 17, 2003, and that Plaintiff's counsel, in

anticipation of the settlement, halted all work not associated

with finalizing the settlement. Plaintiff would further show

that she rejected the settlement in early January.”

25a

Ill. Discussion

A federal court has the inherent authority to enforce

settlement agreements made in a case pending before it.

Re/Max International, Inc. v. Realty One, Inc., 271 F.3d 633,

654-46 (6"Cir.), cert denied, 535 U.S. 987 (2002); Brock v.

Scheuner Corp,, 841 F.2d 151, 154 (6" Cir. 1988). Before

enforcing a settlement, however, an agreement must have

been met on all material terms. If an agreement has been met

on all material terms, then the parties are bound by the

agreement. Ke/Max/international, Inc., 271 F.3d at 645-46;

Brock, 841 F.2d at 154. Finally, “when a client hires an

attorney and holds him out as counsel representing him in this

matter, the client clothes the attorney with apparent authority

to settle claims connected with the matter.’” Capitol Dredge

and Dock Corp. v. City of Detroit, 800 F.2d 525, 531 (6"Cir.

1986); see also Noga v. Parts Associates, Inc., 2000 WL

178385 (6" Cir. Feb. 8, 2000) (same).

The evidence adduced in this case unequivocally indicates

that the plaintiff hired Attorney Flores to act as her agent in

pursuing her claim against defendants and later in negotiating

a settlement of her Claims. Flores entered into an agreement

with the defendants in which the material but simple terms of

fine agreement were set: all plaintiff's claims against all

defendants arising from her son’s death on December 26,

2001, were released and waived for the sum of $28,500.00.

There is no evidence to the contrary on that score even though

the plaintiff herself testified she thought the $28,500.00 was

simply a first installment of a settlement for $100,000. This

mistaken understanding of the settlement amount apparently

came from her own attorney’s settlement demand, which was

rejected, of $100,000.00.

26a

IV. Conclusion

In summation, the plaintiff clothed her attorney with

apparent authority to enter into a settlement on her behalf of

all her claims against defendants in exchange for $28,500.00.

Defendants are entitled to enforcement of this settlement.

Accordingly, it is RECOMMENDED that defendants’

motions to enforce the settlement agreement be GRANTED.’

/s/

William B. Mitchell Carter

United States Magistrate Judge

? Any objections to this Report and Recommendation must be

served and filed within ten (10) days after service of a copy of this

recommended disposition on the objecting party. Such objections

must conform to the requirements of Rule 72(b) of the Federal

Rules of Civil Procedure. Failure to file objections within the time

specified waives the right to appeal the District Court’s order.

Thomas v. ALN, 474 U.S. 140, 88 L.Ed.2d 435, 106 S. Ct. 466

(1985). The district court need not provide de novo review where

objections to this report and recommendation are frivolous,

conclusive or general. Mira v. Marshall, 1106 F.2d 636 (6" Cir.

1986). Only specific objections are reserved for appellate review.

Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6 Cir.

1987).

- Supreme Court. U.S.

a) FILED

: | FEB 2006

No. 05-863 | OFFICE OF THE CLERK |

In the

Supreme Court of the United States

TONYA HArRIS,

AS ADMINISTRATRIX OF THE

EstaTE OF DECcEDENT Torris HARRIS,

Petitioner,

V.

THe City OF CHATTANOOGA, TENNESSEE, ET AL.;

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Puiu A. Nospcetr

Micuaket A. MCMAHAN

Counsel of Record

City ATTORNEY'S OFFICE

801 Broap Srreet, Suite 400

CHATTANOOGA, TN 37402

(423) 757-5338

Counsel for Respondent

City of Chattanooga, Tennessee, etal.

Becker Gallagher Legal Publishing, Inc. 800.890.5001

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Sixth Circuit Court of Appeals improperly

exercised its supervisory power in a way that conflicted

with Petitioner’s right of due process by denying

Petitioner's statutory right to appeal and/or arbitrarily

applying its waiver rule and exceptions?

A.

Whether the Waiver Rule at issue was improperly

applied?

Whether Certiorari is warranted because the District

Court committed “plain error?”

Whether the actions of the Sixth Circuit, in reviewing

this case, denied the Petitioner due process of law?

. Whether the Sixth Circuit acted contrary to the

precedent of this Court in weighing the evidence

presented at hearings and making factual findings

consistent with the evidence in the record?

. Whether any split among the Circuits in applying

exceptions to waiver rules, was previously recognized

in Thomas v. Arn?

. Whether there was any arbitrary application of Sixth

Circuit waiver exceptions in this case which would

warrant any grant of certiorari?

LIST OF ALL PARTIES TO THE PROCEEDING

& CORPORATE DISCLOSURE STATEMENT

The caption of the case contains the names of all the

parties involved in this matter.

The City of Chattanooga is a municipal corporation and

has no parent companies or non-wholly owned subsidiaries

required to be disclosed under Supreme Court Rule 29.6.

Defendants Martin Penney and Christopher Gaynor are

individuals who were employed at various times by the City

of Chattanooga in their capacity as police officers. At the

time of this incident, defendant Gaynor was a ride-along and

was not employed by the City of Chattanooga.

ill

TABLE OF CONTENTS

Questions Presented for Review ................. i

List of All Parties to the Proceeding &

Corporate Disclosure Statement ................ il

SC GE 6. > 6 od be a oe ee ee en ill

PE RID dW a cs a be dd eee iV

NE tN 84-5 CN pe Oe eee ewe ees l

Statement of the Basis for Jurisdiction. ............ l

Constitutional Provisions, Treaties, Statutes,

Ordinances, and Regulations Involved ............ l

IN OGG 6 5 8 56-s FKS oh e boo eS 2

Argument - Reasons to Deny the Writ ............ 5

SNE: 5 civ’ wA ob 048 + CH FieL boc eae 16

Appendix

Appendix |

United States District Court for the Eastern

Division of Tennessee at Chattanooga

WG BU NE ih Wes hoes ew cee oR Ib

Appendix 2

United States District Court for the Eastern

Division of Tennessee at Chattanooga

Memorandum; May 14, 2004 ............... 3b

iv

TABLE OF AUTHORITIES

Cases

Armstrong v. Manzo,

Sr is ee REE 8 ain he VA Oe Re Re 10

Century Marine, Inc. v. United States,

aa Pe i Cs i Sai eww te ea we 13

Kelley v. Withrow,

25 F.3d 363 (6" Cir. 1994), cert. denied,

EEE I; ME RO EE 4 hicigarw Yas a ee oe la lek 15

Kent v. Johnson,

eT ae Ev ews ek ieee 15

Patterson v. Mintizes,

Fit P.2R TOOe Cir T98) so. eb aren. 15, 16

Performance Unlimited, Inc. v. Questar Publishers, Inc.,

RE Bate Gl MMOD a aia eis ea ee es 13

S. Ry. v. Pickle,

183 Tenn. 238, 197 S.W. 675 (Tenn. 1917) ...... 11

Thomas v. Arn,

Gear es SD 6 a ee Sie ws i, 6-11, 14-16

United States v. Campbell,

eS Fe Ce te) io ea bk wee 11

United States v. Walters,

636 F.2d O47 (6° Cir. 1981)... ...5....%. 6,7, 11

Zack v. Commissioner,

ee ee CD og ov oc koe cv eke 13

Statutes

Rules of the Supreme Court, Rule 10... .... 5, 6, 14-16

Rules of the Supreme Court, Rule 10(a) .... 2.2... 13

Rules of the Supreme Court, Rule 29.6 ........... ii

Federal Rules of Civil Procedure, Rule 6(b) ........ 16

Federal Rules of Civil Procedure, Rule 52(a) ....... 13

Federal Rules of Civil Procedure, Rule 60 ......... 10

Federal Rules of Civil Procedure, Rule 60(b) ....... 12

Federal Rules of Civil Procedure, Rule 72(b) ...... 8,9

Federal Rules of Criminal Procedure, Rule 52(b) .. . . . 10

Sy on fe i Bs 7, 9, 16

i 2g Oa a 6

Co A en one wee ee ee 2

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit was not recommended for full-text publication.

The full opinion of the Sixth Circuit is attached as Appendix

B to the Petition for Writ of Certiorari.

STATEMENT OF JURISDICTION

Respondent, City of Chattanooga, adopts and incorporates the

Statements of Jurisdiction set forth in the Petition for Writ of

Certiorari filed by Petitioner, TONYA HARRIS, as

Administratrix of the Estate of Decedent Torris Harris.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND

REGULATIONS INVOLVED

Respondent City of Chattanooga adopts and incorporates

the Constitutional provisions, treaties, statutes, ordinances and

regulations involved set forth in the Petition for Writ of

Certiorari filed by Petitioner, TONYA HARRIS, as

Administratrix of the Estate of Decedent Torris Harris.

2

STATEMENT OF THE CASE

On December 26, 2002, plaintiff filed a Complaint against

the City of Chattanooga, five City of Chattanooga police

officers, and two private citizens pursuant to 42 U.S.C. §

1983. On November 14, 2003, Appellant’s former counsel,

Attorney Robin Ruben Flores, made a demand to the City of

Chattanooga to settle the case for $100,000.00.

On December 17, 2003, Attorney Phillip A. Nobiett,

attorney for the City of Chattanooga and Martin Penny, and

Attorney Flores engaged in settlement negotiations and

reached the settlement agreement to release all claims for

$28,500.00. On December 18, 2003, Flores sent by facsimile

a letter to Phil Noblett. The letter is entitled “Acceptance of

Offer to Settle” and states as follows:

Thank you for your attention to this case. As we

discussed yesterday, December 17, via telephone, my

client has accepted your offer on behalf of your

client, the City of Chattanooga, to settle this matter

for a sum of twenty-eight thousand five hundred

dotlars ($28,500.00). I assume that your client will

also pay all court costs. I further assume that this

amount shall constitute a setthkement of all claims

associated with this matter, state and federal, present

and future. (Emphasis supplied).

This letter was copied to Ms. Tonya Harris, and to other

attorneys of record: Lee Davis, Esq., Johnny Houston, Esq.,

W. Jeffrey Hollingsworth, Esq., John T. Rice, Esq.

On December 18, 2003, Noblett sent the following letter

to Flores:

3

Pursuant to our telephone conversation yesterday

afternoon, this letter will confirm that your client has

agreed to settle her claims against the City of

Chattanooga and all other parties regarding the death

of Torris Harris in the amount of $28,500.00. It is my

understanding that this settlement will resolve all

outstanding claims that your client has filed in federal

court and in state court concerning this matter.

Attached with this letter you will find, pursuant to our

discussion, an Order of Dismissal for both lawsuits

which will be filed in federal court and in Circuit

Court and a Release of All Claims which I have

prepared reflecting this settlement.

Thereafter, the Petitioner sought to revoke her acceptance

of the settlement offer. On or about January 1, 2004,

Petitioner’s counsel sent a letter which stated: “My client has

reversed her position on her acceptance of your client’s offer

to settle this matter for $28,500. She now rejects the offer

and does not wish to sign the documents you forwarded to my

office on December 18, 2003. . . . | am aware that you are

free to file a Motion to Enforce the Settlement Ms. Harris has

accepted.”

The Respondent and other defendants to the action then

filed various motions to enforce the settlement. The District

Judge referred the motions for an Order to Enforce the

Contract of Settlement to the Magistrate Judge on January 26,

2004. The hearing regarding the motions to enforce

settlement agreement was held on February 3, 2004 before the

Magistrate Judge. On February 11, 2004, the Magistrate

Judge entered his Report and Recommendation in which he

recommended that the defendants’ motions to enforce

settlement agreement be granted. On March 3, 2004, the

4

District Judge adopted the Report and Recommendation of the

Magistrate Judge and terminated the case.

Appellant filed a letter dated March 23, 2004, more than

ten (10) days after the Order entered by the District Court

Judge which also was treated as a pro se Motion for

Reconsideration. This letter states that on March 12, 2004,

Appellant terminated the employment of Attorney Flores.

Attorney Flores was eventually allowed to withdraw on April

8, 2004 by Order of the Magistrate Judge. The

Plaintiff/Appellant’s Motion for Reconsideration also

requested that the District Court Judge set aside his March 3,

2004 Order adopting the Magistrate’s Report and

Recommendation. On April 2, 2004, Plaintiff/Appellant

Tonya Harris filed her Notice of Appeal to the Sixth Circuit

Court of Appeals. On the same day, the Plaintiff/Appellant

filed her Application to Proceed in Forma Pauperis.

On May 14, 2004, the District Court Judge entered an

Order granting Attorney Flores’ Motion to Declare Attorney

Lien, denying the Defendants’ Motion for Reconsideration,

rejecting the Defendants’ objections to the Magistrate’s Order

of April 8, 2004, granting the defendants leave to deposit

funds in the Court, and granting the plaintiff application to

proceed in forma pauperis. The District Court Judge also

entered a Memorandum detailing his reasoning behind such

decisions. ‘This Memorandum and Opinion of the District

Judge was not attached to the Petition. A copy of the

Memorandum and Opinion and Order of the District Court

Judge is attached to this Brief in Opposition as Appendix |

and 2.

The Sixth Circuit Court of Appeals affirmed the ruling of

the District Court on June 15, 2005, and clearly found that the

plaintiff's failure to timely object to any matters in the

5

Magistrate Judge’s Report and Recommendation constituted

a waiver of these issues on appeal. On September 29, 2005,

the Sixth Circuit entered an Order concluding that no

rehearing en banc should issue anc denying a petition for

rehearing en banc.

REASONS WHY THE PETITION

SHOULD BE DENIED

None of the criteria set forth in Supreme Court Rule 10

that could establish a “compelling reason” to grant the petition

is present here. Petitioner has failed to identify any way in

which the Sixth Circuit’s decision either:

1. conflicts with the decision of another United States

Court of Appeals,

2. decides an important federal question in a way that

conflicts with the decision by a state court of last

resort,

3. so far departs from the accepted and usual course of

judicial proceedings to justify an exercise of this

Court’s supervisory power,

4. decides an important question of federal law

previously undecided by the Court, or,

5. conflicts with relevant decisions of this Court.

Supreme Court Rule 10 specifically provides that a

petition for writ of certiorari “is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” The petition

for writ of certiorari to this Court in this case is nothing more

6

than a claim by Petitioner that the Sixth Circuit failed to

follow its own procedural rule on waiver of appeal pursuant

to 28 U.S.C. § 636(b)(1)(B) adopted in United States v.

Walters, 638 F.2d 947, 949-950 (6" Cir. 1981) and affirmed

by the decision of this Court in Thomas v. Arn, 474 U.S. 140

(1985).

This case involves an alleged failure of the District Judge

and the Court of Appeals to consider an untimely objection to

the report and recommendation of a magistrate that enforced

a settlement agreement between the parties. This case is not

suitable for review because the Sixth Circuit did not misapply

any rule of law which is otherwise appropriate for review

based on Supreme Court Rule 10.

This Petition for Certiorari is premised upon an alleged

arbitrary application by the Sixth Circuit of this Court’s

opinion in Jhomas v. Am. Pursuant to the doctrine of

Thomas v. Arn, a Court of Appeals may adopt a rule

conditioning an appeal when taken from a district court

judgment that adopts a magistrate’s recommendation. The

rule adopted by the Sixth Circuit requires a timely filing of

objections to the magistrate’s recommendation with the district

court. The Sixth Circuit did not under the facts of this case

waive the timely filing of objections to the magistrate’s

recommendation and consider other legal arguments raised for

the first time on appeal.

Petitioner also claims that the Sixth Circuit should have

waived the application of this rule “in the interest of justice”

- a matter involving the exercise of judicial discretion.