[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            Nov. 25, 2009
                             No. 09-12445                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 07-01854-CV-UWC-B-J

BONITA RENEA BATTON,

                                                           Plaintiff-Appellant,

                                  versus

CITY OF JASPER, ALABAMA, THE,
JASPER POLICE DEPARTMENT, THE,
M. JONES,
Jasper Police Officer,


                                                        Defendants-Appellees.

                       ________________________

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

                           (November 25, 2009)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       This case began in October 2007 when plaintiff filed a pro se complaint

against defendants seeking damages under 42 U.S.C. § 1983 for the injuries she

allegedly sustained following, and as the result of, a vehicle stop conducted by

officers of the City of Jasper police department. In November 2007, plaintiff

obtained the services of an attorney, Henry Sherrod III,who promptly entered into

settlement negotiations with counsel for the defendants, Daniel Pickett. Claiming

that a settlement agreement had been reached, the defendants moved the district

court to enforce agreement.

       At a status conference on the motion, the district court announced that it was

converting the conference into a formal hearing so there would be a record.1 The

court then heard from Sherrod and Pickett and plaintiff.2 The two lawyers related

the gist of the settlement negotiations that had taken place, and the terms they had

agreed to. Plaintiff told the court that she did not want to settle, that she had not

consented to the terms expressed, and that she was being pressured by her lawyer

to agree to them. The court stated that her disagreement with Sherrod was a matter

that she would have to resolve with him, granted the defendants’ motion to enforce

the settlement agreement, and dismissed the case with prejudice. Plaintiff,


       1
         The transcript of the hearing does not indicate that any who addressed the court did so
under oath.
       2
           None testified before the court under oath.

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proceeding pro se, now appeals the court’s judgment.

      In her brief, plaintiff argues that her attorney lacked express authority to

accept the settlement agreement the defendants proffered to the district court and

that the record contains no evidence to support the court’s finding that her attorney

had authority to enter into such agreement. She contends that the court, as a basis

for enforcing the agreement, erroneously relied on Ala. Code § 34-3-21, which

gives an attorney authority to bind a client, failed to give her notice that the status

conference would be transformed into a formal hearing, and failed to grant her a

continuance so she could obtain the representation of counsel and present evidence.

       We review the district court’s decision to enforce a settlement agreement for

an abuse of discretion. Hayes v. National Service Industries, 

, 1254

(11th Cir. 1999); see also Murchison v. Grand Cypress Hotel Corp., 

,

1485 (11th Cir. 1994) (reviewing for abuse of discretion a decision to enforce a

settlement agreement without an evidentiary hearing). “In the Eleventh Circuit,

state law governs the scope of an attorney’s authority to enter into a settlement

agreement.” 

(11th Cir. 1994).

      “Section 34-3-21, Ala.Code 1975, governs the validity and enforcement of

settlement agreements reached between parties at the trial-court level.” Mays v.

Julian LeCraw and Co., Inc., 

, 554 (Ala. Civ. App. 2001). “An



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attorney has authority to bind his client, in any action or proceeding, by any

agreement in relation to such case, made in writing, or by an entry to be made on

the minutes of the court.” Ala. Code § 34-3-21. “A settlement agreement once

entered into cannot be repudiated by either party and will be summarily enforced.”

      The Alabama courts have limited an attorney’s authority to enter into a

settlement agreement, holding that:

              An attorney cannot settle a client’s action or claim or prejudice
      a client’s rights without authorization from the client. The power to
      compromise a demand does not arise from the power to sue or from an
      attorney’s general authority which is usually limited in both duty and
      authority to the vigilant prosecution or defense of the rights of the
      client. The authority to settle is not incidental, but it is essential that
      an attorney have express, special authority from his client to do so. A
      person dealing with an attorney must ascertain the extent of the
      attorney’s authority to compromise the client’s claim. An attorney
      employed to represent a litigant in the prosecution or defense of a suit
      is a special agent of his client and has no implied or inherent authority
      or right to compromise and settle it. An agent’s apparent authority
      must be founded upon the conduct of the principal and not upon the
      conduct of the agent.

Benitez v. Beck, 

, 847 (Ala.Civ.App.2003) (quotations and citations

omitted, emphasis in original). Thus, “[a] judgment entered upon an agreement by

the attorney may be set aside on affirmative proof that the attorney had no right to

consent to its entry.” 

alteration omitted).

      “Whether an attorney has the authority to settle a case on behalf of his client

                                           4
is always a question of fact.” 

the court held that “[b]ecause the trial

court did not hold a hearing and did not hear testimony or receive evidence

[regarding the authority of the attorney], it could not have made a finding of fact

that [the attorney] had the ‘express, special authority’ to bind the plaintiffs to the

settlement agreement.” 

therefore vacated the trial court’s decision

and remanded the case so that such a hearing could be held. 

       The district court abused its discretion in this case by enforcing the proffered

settlement agreement without holding an evidentiary hearing and taking sworn

testimony. We therefore vacate the court’s judgment and remand the case for an

evidentiary hearing and a factual determination of whether plaintiff expressly

authorized her attorney to accept the settlement agreement the defendants proffered

to the court.

       VACATED and REMANDED.




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