Appeal from the Circuit Court of Morgan County; the Hon. David
E. Bone, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 10, 1986.
Two plaintiffs, out of an original group of 61, appeal from an order of the circuit court of Morgan County which enforced a settlement agreement entered into by attorneys for all of the plaintiffs and the defendants.
The factual background may be sketched briefly. The 61 plaintiffs brought an original suit seeking to enjoin the defendant city of Jacksonville and its superintendent of inspections from issuing certain building permits; alternatively, the suit sought to enjoin the defendant construction companies and a housing authority from proceeding with the construction of buildings on certain described real estate. The basis of the suit was that the use of the buildings would violate applicable zoning ordinances.
In the course of the proceedings the city of Jacksonville and the superintendent were dismissed on their motions and a number of plaintiffs were granted permission to withdraw.
Attorney Robert A. Huffman represented plaintiffs and entered into settlement negotiations with the attorneys representing defendants. A meeting was called of all plaintiffs, apparently to present a proposed settlement. Huffman testified at a hearing on his motion to withdraw as counsel for plaintiffs that he believed he had authority to settle as a result of the meeting. Although not all plaintiffs were present at the meeting, those who were not present subsequently agreed to settle. However, this first settlement agreement was rejected by defendants.
Thereupon, a second settlement agreement was drafted. Huffman stated:
"I personally contacted everybody I could get hold of, and by the rules that the group had operated by all along the majority, they all agreed that a majority would control the actions of the group, each of the individuals agreed to it. A majority was contacted, some people who had been opposed earlier remained opposed; those who had agreed earlier to settle continued to agree to settle to the modified proposal."
After documents were drafted to implement the second settlement, a plaintiff called Huffman and indicated that she was not satisfied with it. A second meeting of the plaintiffs was then held. During the meeting controversy arose among the plaintiffs as to whether the case should be settled. In view of that controversy, Huffman advised the plaintiffs that he would seek leave to withdraw as plaintiffs' counsel. Such a motion was filed on October 2, 1985. The basis of the motion was the repudiation of the settlement agreement entered into by Huffman with the defendants on behalf of the plaintiffs.
On October 7, 1985, defendant construction companies filed a petition to enforce the settlement. It alleged that the parties, through their attorneys, had entered into a settlement agreement on October 1, 1985, and it had attached to it a copy of the alleged settlement agreement together with a copy of Huffman's motion to withdraw as counsel.
A hearing on Huffman's motion to withdraw was held on October 10, 1985. At that hearing he testified as to what has been set forth above, that is, he believed as a result of the first meeting that the majority would rule and that he had the authority to settle and so acted with regard to the second agreement. The motion to withdraw was allowed.
A hearing on the petition to enforce the settlement was begun on October 10, 1985, and continued on October 23, 1985. On the latter date Shirley Hearold, one of the plaintiffs on appeal, testified that a meeting of all plaintiffs was held on September 28, 1985, and discussions took place concerning settlement. She stated that she did not agree to the settlement and had never given anyone authority to settle for her. On cross-examination she stated that a vote was taken on the question of majority rule and that a majority of the group present voted in favor of such a rule. She herself voted against it. She also testified that another meeting was held on October 2, 1985. On redirect she stated that the terms discussed at the September 28 meeting were not the same as those contained in a stipulation for dismissal presented to her and introduced into evidence.
Ken Hearold, also one of the plaintiffs on appeal, testified on October 23. He stated that he attended the September 28 meeting but left prior to its completion. He further stated that Huffman was his attorney on September 28, 1985, but he had not given anyone authority to settle the case for him. He also attended the October 2 meeting.
Kathy Mussat, apparently 1 of the 61 original plaintiffs but not a plaintiff on appeal, testified on October 23. She stated that she attended the September 28 meeting at which Huffman asked if anyone "would be uncomfortable with going along with the majority, and no one spoke up." ...