that is there was no effort in the district court's ruling to sustain its conclusion on the basis of apparent authority that is that dr roberts did anything to manifest a defense that his attorney had authority to settle the case and the second is to clear up any confusion about the exercise here on appeal the standard of review we are not challenging any of the district court's findings of fact but we are challenging is this conclusion of law and that conclusion of law as it paragraph eleven page twenty three of the findings of fact in conclusion of law specifically that the words from dr roberts in the text message on the morning of october twentieth please do not dismiss the case and the district court i think reading that that opinion concluded that that was not sufficient to revoke mcdougal's authority to settle the case on dr roberts behalf and if you read that opinion from the district court it concludes that that authority persisted and was not revoked until later meeting on november fourteenth when the district included court concluded that was the first time that dr roberts expressed that he changed his mind that he did not want to settle the case that is similar to a higher level of analysis isn't the case about whether the defendants responses to macdougal accepting the settlement offer were effective i mean isn't that at that moment maybe effective is the wrong word but the question is at that moment do the parties reaches settlement we you and i might get to that moment different ways you might say well there wasn't you know the mcdougal's authority to offer a settlement had been withdrawn how can that be but i want to i want to rest on that moment for just one second and here's my question you said this is not an apparent authority case hadn't mcdougal represented himself as your clients agent throughout the litigation everyone everyone at that point in the case all the other lawyers knew that they could rely on mr mcdougal in fact they would be breaching their ethical duties if they were to try to contact your client directly right i certainly can see the last point yes your honor but oregon law is very clear has been consistent for a long time simply because of the attorney client relationship that does not enough to convey to the opposing side that the attorney has settlement authority and that's been clear since one thousand nine hundred thirty eight as a matter of oregon law simply because you are the attorney does not mean that the other side's entitled to rely on the notion that the attorney is settlement authority in fact they've said that you have a duty to inquire in dealing with your counterpart as an attorney about the extent of that authority and is that true prior to any transaction that a lawyer might engage in any case that prior to engaging in any transaction the lawyer has to go to the other side's where and so do you really have authority to to make this deal i'm not sure i'd go that far your honor but but it's certainly the case with settlement settlements regarded in oregon law as something sort of sacrosanct it's a momentous undertaking and at least at least to go that far you  to ascertain your counterparts ability to settle the case let's put that to one side for a moment and the question of whether they had to check or not can we agree that on this record there is no evidence that the defendant saw any sion and mcdougall's with already they had no reason to they were not aware of any facts that would cause them to think that whatever authority mcdougall had had before he no longer had that authority that's true your honor but i would say they never inquired in the first place they didn't know if the offers had been extended with authority as i think we point out in the brief it's as if authority was granted or denied behind closed doors for them and then when we go through this settlement hearing and process they find out oh yes there was authority to begin with but it was revoked and that's the point we make in the reply brief that there simply are simply no prejudice there no worse off than if mcdougal didn't have authority in the first place to extend the offers let me read to you the paragraph twenty eight which contains the message sent by dr roberts and it doesn't merely say please don't dismiss until you've had a chance to discuss dr roberts writes i have now had a bit more time to consider case options i would like to speak to you about case beaten let me know a good time to work for you please do not dismiss the case until we've had a chance to discuss this let's you mean by abatement i think at the time dr roberts the evidence was that on october sixteenth the prior week they had discussed various options about proceeding forward in abatement was one of those i think that's and it was a different from settlement well it is i struggle to understand how please do not dismiss the case and the exercise below in distinguishing this was to say dismissal what he actually meant by that was don't enter the judgment of dismissal don't actually submit that document but you can bind me to do that it's our contention that that's just not a reasonable construction of that text message i mean this is a non lawyer speaking to a lawyer and i think the the suggestion below at least was well he had to say don't enter me into a binding settlement as opposed to please don't dismiss case and it's our position and just as a reasonable construction manifestation by the principle to the agent that's not a reasonable construction of that i mean please do not dismiss case means please do not dismiss case do not bind me to that course of action and that's our contention on that point of law and that the district court just erred in and concluding that he had authority to bind his client to a settlement of dismissal but not to actually dismiss the case didn't there there was a moment in time when mcdougal did have this authority correct premis this issue was litigated below but that's no longer an issue on appeal as a mother yes so he did have that authority so isn't this case different from go because and all brit were in question never had the authority and i thought that was the basis on which the court made its decision i think that's correct i think you're dealing with a very unusual fact pattern and this is not arisen in oregon law what happens in these circumstances ga bryce i can see would not be directly controlling but it certainly has the principle you are on as an opposing party you duty to inquire the point that it doesn't address that and i don't think any of these cases though is where is the where is the evidence in the record below that there was a valid acceptance from each of these defendants community and it to be a valid acceptance to an agent the kincaid case is you have to communicate that to someone who's validly authorized but this gets back to earlier discussion if they think he's authorized and then under the restatement of agency and they have good reason for thinking that except and says affective and your client's cause of action is against mcdougal well again your honor i think that's injecting the concept of apparent authority in oregon laws clearly they weren't entitled to assume that he had that authority he either did or did not and as it turns out in the event he did not and so at the time the acceptance is conveyed and acceptance conveyed to an unauthorised agent is no more effective than one conveyed to a stranger on the street or the lamp post over here i mean it was an unauthorised agent at that point is a clear matter of this record and so unless you're further questions i would reserve the balance of my time for a bottle with the cour good morning my name is key to the end of it may please the court counsel i will speak on behalf of all the pallies and fairness let me start at the end and i'll go back to the beginning eventual in your question asked about the authority to receive an acceptance the supreme court of oregon said in the wiggins vs barrett case that the express authority to do a certain thing carries with it the implied authority to do those things that are reasonably necessary to carry out the authorized task here what we have is an attorney who has expressed authority to make a settlement offer he therefore has the implied authority to receive acceptances mr mcdougal had no discretion to reject those acceptances he was authorised to make an offer so as a ministerial act once he received the acceptance is he had the implied authority to receive those acceptance and there is a contract at that point in time and do you mean that he had the implied authority because of the his own client or simply views of your client the implied authority comes from the express authority that d roberts granted in mr mcdougal and therefore when he extended that offer it was implied to those people that received the offer that he had the authority to receive an acceptance so let me go back to the beginning it is our position first that this issue was actually not properly preserved or presented to the district court yes it was discussed at the very beginning of the hearing but it was abandoned it was abandoned for a good reason there is simply no factual support for the revocation argument in the hearing so even if it has been preserved as i said there's simply no factual evidence the supports of the hypothesis that the october twenty  you've got the record in front of you and i brought an enlargement if you read those words very carefully it's quite clear that what was going on is dr roberts had agreed to settle the case but he wanted to have some additional time to discuss as soon as the judgment was entered that lien would become doing owing and he wanted to figure out how to get out from underneath the lien he had that discussion with mr mcdougal before he authorized the settlement and wanted additional time to negotiate with the markets firm that's what abatement was about and at no time in that communication did dr roberts ever communicate to withdraw the offer or withdraw the authority those are similar but they're different and in neither circumstance did he do either could you explain to me a little bit about that lin how did that come about the merc was horrible the firm was working for dr roberts on an hourly basis apparently he became in arrears when they resigned from the case they had a lien on the case so it fall the case when another firm took over mr mcdougal the lien attached to the case and any proceeds of the case but there were going to be no proceeds true but it doesn't mean  and how would some to live allowed him to escape or diminish that liability i don't know it's not in the record but certainly he could have negotiated with the markets firm he could have talked to them and said look i'm not getting any money out of this case would you release your lien would you release it for ten cents on the dollar what he wanted was some time to work out the lien the record doesn't say how he was going to work it up yes if you could just follow up on judge switchers question to your opponent about what a basement litigation here so you can settle a case and abate the case they are not inconsistent indeed mr mcdougal said from his perspective they were consistent that's why he had a further conversation with dr roberts and it wasn't until november that he recognized that dr roberts had changed his mind abatement simply was going to put the case on hold no discovery would take place the parties wouldn't litigate he was just simply giving getting an opportunity to look at the record what we know is that there's the e mail itself doesn't mention anything about revocation but that's not all that judge simon had in front of him he had the custom of any of the witnesses and it's a factual finding about whether or not that october twenty is a revocation and that is reviewed for clear and because it is an issue that is wrapped around credibility determinations the us supreme court said in the andersen vs city of bessemer case that that demands even greater deference to the trial court's ruling mightn't it be because of these questions of agency also a factual question as to whether judge simon found that mr mcdougal didn't interpret it as a revocation i mean is is mcdougal's as mr mcdougal's intent issue in this appeal i don't think it's mr mcdougal's intent i mean understanding is the word i should have been absolutely and his testimony was pretty clear that at no time did he perceive that his authority had been revoked indeed at the elbow his response doesn't quite mesh with that because he's basically trying to persuade dr roberts how to of backing out of an tng for example if we back out my credibility as an issue he clearly regarded that e mail as dr roberts having second thoughts at a minimum  only in respect to the abatement issue because they'd already discussed abatement and dr roberts is now saying geez i want to bateman and mr mcdougal's and we've already talked about abatement why do you want to go back and undo the deal does he have concerns that dr robert is backing out possibly but at no time to dr roberts ever instruct him to withdraw the offers mr mcdougal clearly testified that he didn't perceive that he had been instructed to withdraw the offers and there's certainly no evidence that mr mcdougal felt that email was a revocation of his authority but the most more important thing frankly is to recognise that as doc thirty three it's pretty clear his lawyer asked him why didn't you say yourself i'm an authority authorities here by revoked and dr robert said he never had settlement authority so i never would have thought to say that that's d roberts testimony so the record is real clear that that october twenty eighth mail is not a revocation but even if it is as your honor started to talk about that revocation of the offer has to be communicated to the offer read for it to be effective you can't just rely upon someone subjective second thoughts the settlement offer had to be withdrawn and that communication had to go directly to the offer reviews as we stated on page thirteen of our brief terminations by revocation occurs only when the offeree receives from the offer or a man a face station of an intention not to enter into the proposed contract so if i offer you my car until i do something that says i'm taking the offer back you have the power to accept it i have in control the ability to terminate the offer but until i communicate that to you it is a ripe offer that you can accept in this case and on this record there is no communication of the  mcdougal's authority which is clearly implied the defendants all accepted before november fourteen and therefore there was no revocation of the offer the offer remain ripe in was accepted it was a full contract at that point so in conclusion it's our belief that the record does not show that the issue has properly been preserved second  facts simply do not support revocation at all and even if there had been a revocation because it was never communicated to the defendants it is not an effective revocation the offer was accepted and therefore the judgment should be  and you've saved just about two minutes  i heard no answer to the legal point there in that argument that to be effective a an acceptance must be communicated to a ballot the authorized agent i'm not contending that the  somehow revoked when dr roberts communicated with his attorney or because of the the defendant's what we are saying is there had to be a valid communication of acceptance and there's been no answer to that legal point and there's no evidence that it  last acceptance by the last defendant last acceptance the evidence was somewhat unclear on why and when one of them accepted but the evidence is very clear that at least one of them accepted  as we have bade long enough right you can dismiss that as as we go down the road at some later time please do not dismiss case means please do not dismiss case and if you look at mr mcdougal's response to that he clearly understood what it meant he said we shouldn't well what he says is this is money coming back to dr roberts he says listen if we made it and don't dismiss now we run the risk of being stuck with various tourney fees and costs in the interim between now and the ultimate  missal that that's that's the one of this is there's concerns and he also says i'm going to lose my credibility but i'm not sure lose credibility because there's no good offer and acceptance of the settlement when might be a more subtle thing listen well in the ordinary course of events once we do this we just get into a settlement but the text of the email that goes back to dr roberts talks about the possibility and worries about the possibility of costs and fees building up during the period of basement which course is not a surprise fair enough and i i caution the court against relying too much on that response i mean our contention is please do not dismiss case there no other reasonable interpretation when the question is actually thirty hinges on what was manifested from principle to age please do not dismiss case means please do not dismiss case got it ok do you think both sides helpful argument what roberts versus pacific spine specialist at all now submitted for decision