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Luethke v. Suhr8/9/2002
retion. See Clark v. Burden, 917 S.W.2d 574 (Ky. 1996). See, also, Kansas City Laborers Pension F. v. Paramount Indus., 829 F.2d 644 (8th Cir. 1987) (concluding that under federal law, district court abused discretion in failing to conduct hearing on whether attorney had actual authority to consent to settlement). We agree that disputes over a lawyer's authority to settle are factual issues to be resolved by the trial court; however, we will not set aside a trial court's factual findings regarding settlement disputes unless such findings are clearly erroneous.
After reviewing the record, we conclude that the district court did not clearly err in determining that Luethke did not grant express authority to Wickenkamp to compromise or settle his personal injury claim for the sum of $16,000. The record, in fact, would support a finding that Luethke did not authorize Wickenkamp to settle his personal injury claim for $16,000.
Having decided the primary issue in this appeal, we conclude that the appellants' remaining assignments of error are without merit. The appellants had argued that the district court erred in receiving evidence, over a § 7-107(2) objection, pertaining to the settlement agreement at issue. We note briefly that § 7-107(2) does not apply to the present case, because a lawyer's "proper duties and powers" do not include settling a lawsuit without a client's express authority. Moreover, Luethke testified regarding interactions and agreements between himself and Wickenkamp, not about the settlement agreement between Wickenkamp and Plessman. Thus, Luethke's testimony and Schmitt's testimony were properly admitted into evidence, and the court did not err in overruling the appellants' § 7-107(2) objection.
CONCLUSION
For the foregoing reasons, we conclude that the district court did not err in determining that Wickenkamp could not enter into an out-of-court settlement agreement, and bind her client to the agreement, without the express authority of Luethke, her client. The judgment of the district court is, therefore, affirmed, and this cause is remanded to the district court for a trial on the merits of the personal injury cause of action.
Affirmed, and cause remanded with directions.
McCormack, J., not participating.
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