IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00040-SCT

CHARLENA WIRTZ, AS EXECUTRIX OF THE

ESTATE OF LENA WATSON WHITLEY, CHARLENA

WIRTZ, LYNN WIRTZ, ELIZABETH WIRTZ,

ANDREW WIRTZ AND CLAY WIRTZ

v.

DENNIS R. SWITZER AND DENNIS R. SWITZER,

CPA, LTD.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 12/06/93

TRIAL JUDGE: HON. RICHARD T. WATSON

COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: LYNN WIRTZ, PRO SE

ATTORNEY FOR APPELLEES: RICHARD D. GAMBLIN

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 11/6/97

MOTION FOR REHEARING FILED: 11/20/97

MANDATE ISSUED: 12/31/97

BEFORE PRATHER, PJ., ROBERTS AND MILLS, JJ.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

On June 18, 1985, Charlena Wirtz, as Executrix of the Estate of Lena Watson Whitley, and Charlena

Wirtz, Lynn Wirtz, Elizabeth Wirtz, Andrew Wirtz, and Clay Wirtz, as residuary beneficiaries under

the will of Lena Whitley, filed a Complaint in the Circuit Court of Adams County against Dennis

Switzer and Dennis Switzer, CPA, Ltd. Wirtz alleged that Switzer failed to exercise the degree of

care, skill, and diligence required of certified public accountants while providing accounting services

for the Estate.

The trial was conducted on November 4 and 5, 1987. At the close of Wirtz's case, Switzer moved for

a directed verdict on certain issues, including punitive damages, and the motion was granted by the

trial court. The trial court also granted Wirtz's Motion for Directed Verdict regarding the other
claims of the suit. On February 18, 1988, Wirtz appealed the trial court's decision to grant Switzer's

Motion for Directed Verdict. In 1991, this Court affirmed the trial court's decision as to the punitive

damages but remanded the case for a new trial on the issue of alleged negligent preparation of an

Estate schedule by Switzer. See Wirtz v. Switzer, 586 So.2d 775 (Miss. 1991).

On July 13, 1992, Wirtz filed a Motion for Partial Summary Judgment. The trial court never ruled on

this motion as it was not set for hearing. Wirtz engaged and dismissed several attorneys following the

Mandate from the Supreme Court which resulted in three continuances of the case. On March 15,

1993, Switzer filed a Motion to Dismiss. The next day, Wirtz retained the services of Guy N. Rogers,

Jr. and Christopher G. Holt. On March 25, 1993, Wirtz responded to the Motion to Dismiss. On

March 29, 1993, the trial court conducted a hearing in which the Motion was denied and the case

was set for trial on May 13, 1993. At this hearing the trial judge warned Wirtz that the case would be

dismissed if it was not tried on May 13, 1993 "for any reason attributable to the Plaintiffs."

After the hearing, Wirtz filed several motions, including two motions to amend the Complaint. The

trial court denied all motions on May 6, 1993. After being informed of a new expert witness for the

Plaintiffs, Switzer filed a Motion to Exclude Testimony on May 12, 1993.

Both parties and their respective attorneys appeared before the Circuit Court of Adams County on

the scheduled trial date of May 13, 1993. The trial judge, Richard T. Watson, and the attorneys for

both parties participated in a settlement conference before the trial was scheduled to begin. Despite

vehement protests, the trial judge did not allow Lynn and Charlena Wirtz to participate in the

settlement conference. Switzer was also excluded from the conference, but made no objection.

Following a brief discussion among the attorneys with confirmation from the respective clients, an

agreement was reached in the amount of $18,000 for all claims arising from the alleged negligence of

Switzer, and the trial judge dismissed the jury panel. The terms of the agreement were not put in

writing at that time, and no contemporaneous record of the settlement was made.

Following the oral agreement, Switzer submitted a written settlement agreement and release to which

Wirtz violently objected. The major problem with the wording revolved around the desire of Wirtz to

seek disciplinary action against Switzer with the Mississippi and Louisiana State Boards of

Accountancy. After months of unsuccessful negotiations, Switzer filed a Motion to Enforce the

Settlement Agreement on August 19, 1993. After Wirtz responded on August 27, 1993, a hearing

was conducted on August 30, 1993. Once again, Lynn Wirtz's request to testify was denied. After

hearing oral arguments, the trial court took the motion under advisement.

On December 7, 1993, the trial court issued an opinion and order on the motion to enforce the

settlement agreement. The trial court dismissed the action with prejudice, directed the Defendant to

pay $18,000 into the registry of the Circuit Court of Adams County, and directed that the Plaintiffs

may not institute, prosecute, or pursue any complaint or other proceeding against Switzer with the

Mississippi State Board of Public Accountancy or with the Louisiana State Board of Public

Accountancy. Wirtz promptly appealed.

Wirtz filed a Designation of the Record and a Statement of the Issues. In response, Switzer filed a

Motion for Sanctions pursuant to Rule 10 of the Supreme Court Rules. The trial court conducted a

hearing on February 14, 1994. Wirtz responded in writing but did not appear. The trial court failed to

grant the requested sanctions, but many of the documents designated for the record by Wirtz were
stricken, including the Statement of the Issues.

In March of 1994, Wirtz filed a Statement of the Evidence. Switzer objected to this statement, and

the trial court conducted a hearing in April of 1994. Wirtz did not appear at the hearing but

responded in writing. In addition to Switzer and his attorney, the trial judge asked Christopher Holt

to appear at the hearing. At this time, Holt was no longer counsel for Wirtz who was now proceeding

pro se. After hearing Switzer's objections to the Statement of the Evidence and questioning Holt

about the accuracy of the Statement, the trial court entered an order on July 21, 1994, which

significantly varied from the Statement presented by Wirtz.

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR BY ENFORCING THE ORAL SETTLEMENT

AGREEMENT AND PREVENTING THE PLAINTIFFS FROM SEEKING

DISCIPLINARY ACTIONS AGAINST SWITZER WITH THE MISSISSIPPI AND

LOUISIANA STATE BOARDS OF PUBLIC ACCOUNTANCY?

II. DID THE ACTIONS AND RULINGS OF THE CIRCUIT COURT JUDGE

CONSTITUTE BIAS OR PREJUDICE AGAINST WIRTZ?

III. DID THE CIRCUIT COURT PROPERLY CONSIDER AND RULE ON

SWITZER'S OBJECTIONS TO WIRTZ'S STATEMENT OF THE EVIDENCE?

STATEMENT OF THE FACTS

Lena Watson Whitley died on November 28, 1981. In her Last Will and Testament, Whitley named

Charlena Wirtz as Executrix. The Will also named Lynn Wirtz, Charlena Wirtz and their three

children as residuary beneficiaries of the Estate. Forrest A. Johnson represented the Estate, and

Dennis Switzer served as the Estate's accountant until April 1984. The administration of the Will was

supervised by Chancellor Joseph Zuccaro in the Chancery Court of Adams County.

During the course of the administration of the Estate, a dispute arose between the Executrix (Mrs.

Wirtz) and certain nieces and nephews of Whitley (hereinafter "heirs") who were represented by

David C. Bramlette, III. This dispute concerned ownership of certain oil and gas-producing

properties located in the State of Louisiana and entitlement to distribution of income derived from

those properties. As a result of the dispute, the Executrix and the heirs entered into an Act of

Compromise, Settlement, Conveyance, and Release. At the request of the Estate's attorney, Switzer

prepared a schedule entitled "Net Oil Income Attributable to Beneficiaries, October 31, 1983" which

was incorporated into the Act.

A few days later, the Estate's attorney told the Executrix that she needed to retain an additional $30,

000 from the money to be distributed to the heirs because Switzer had called and said that the 1982

windfall profit taxes had not been included on the schedule. Switzer estimated the amount of the

taxes would be $30,000. The Executrix withheld $30,000 from the amount of the settlement

agreement when she distributed the funds to the heirs and included a note to the heirs' attorney

explaining the reason for withholding the amount. The heirs demanded a disbursement of the

remaining funds, and when the Executrix refused, they filed a Complaint in the Chancery Court of
Adams County demanding payment of the amount withheld. Following continued negotiation, an

agreement was reached by all parties involved.

On June 18, 1985, the Estate filed suit against Dennis Switzer asserting claims of professional

malpractice, including negligent preparation of the schedule of "Net Oil Income Attributable to

Beneficiaries, October 31, 1983." The case was tried on November 4 and 5, 1987. The Circuit Court

directed a verdict for Switzer as to all claims arising from the preparation of the schedule of "Net Oil

Income," and the Plaintiffs appealed to the Supreme Court. On September 4, 1991, this Court

reversed and remanded for a new trial on the issue of Switzer's alleged negligence in the preparation

of the schedule and affirmed as to all other issues. See Wirtz v. Switzer, 586 So.2d 775 (Miss. 1991).

The Mandate was issued on November 5, 1991.

On July 13, 1992, Wirtz filed a Motion for Partial Summary Judgment. This motion was never

addressed by the trial court because a hearing date was never set by the attorney representing Wirtz.

After three continuances due to Wirtz's lack of trial counsel, Switzer filed a Motion to Dismiss on

March 15, 1993. Following the initial trial in Chancery Court, Wirtz employed and subsequently

discharged at least four different attorneys. After Switzer filed the Motion to Dismiss, Christopher

Holt and Guy Rogers, Jr. appeared as counsel for Wirtz and responded to the motion. On March 29,

1993, the Circuit Court of Adams County conducted a hearing on the Motion to Dismiss and denied

the motion. The trial judge was quite agitated with the state of the case especially the continued delay

of trial due to Wirtz's lack of counsel. The case was set for trial on May 13, 1993, and the Court

informed Wirtz that the case would be dismissed if it were not tried on May 13, 1993 for any reason

attributable to the Plaintiffs.

Prior to the May 13, 1993 trial date, Wirtz filed two motions to amend the Complaint. These motions

were heard by the Circuit Court and denied on May 6, 1993. On May 11, two days prior to trial,

Switzer's attorney was advised by Wirtz's attorneys that a new expert witness, Cathy Reed, was

expected to testify at trial on behalf of Wirtz. Switzer moved to exclude this witness's testimony. This

motion was never addressed by the trial court because a settlement was reached prior to trial.

On May 13, 1993, the parties and their attorneys appeared before the Circuit Court of Adams County

for trial. Prior to the commencement of the trial, Circuit Judge Richard T. Watson and the attorneys

participated in a settlement conference. Lynn Wirtz and Charlena Wirtz asked the court for

permission to participate in the settlement conference, but the trial judge denied the request.

After a brief discussion between the attorneys and approval by the respective clients, a settlement

agreement was reached in the amount of $18,000 in settlement of all remaining claims. Judge Watson

then dismissed the assembled jury panel. The terms of the settlement agreement were not put in

writing at that time, and a record was not made.

Subsequently, Switzer's attorney prepared a proposed release and forwarded it to Wirtz's attorneys.

Wirtz disagreed with the wording of the release, primarily because the language could be construed

to preclude a complaint against Switzer before the Mississippi State Board of Public Accountancy

and the Louisiana State Board of Public Accountancy. Efforts to resolve the differences in wording

of the release were unsuccessful, and, on August 19, 1993, Switzer filed a Motion to Enforce the

Settlement Agreement. Wirtz responded to the motion on August 27, 1993. Wirtz admitted that a

settlement agreement was reached in the amount of $18,000 but denied the relinquishment of any
rights to seek disciplinary action against Switzer from the Mississippi and Louisiana State Boards of

Public Accountancy.

A hearing on the motion was conducted on August 30, 1993. Following a statement by Switzer's

attorney, the trial judge questioned Christopher Holt regarding the problems with the settlement

agreement. Holt told the court that the problem arose from a sense of duty on the part of the Wirtz

family to file disciplinary actions with the Mississippi and Louisiana Boards of Accountancy to

protect the public from further negligence by Switzer. Holt also admitted that this was the first time

the court was made aware of this situation. However, this desire was stated earlier in the Plaintiffs'

Motion for Partial Summary Judgment which was never set for hearing. Lynn Wirtz requested

permission to testify at the hearing, but the trial judge denied the request, and no proffer of the

testimony was made. Following the hearing, the trial judge took the motion under advisement.

On December 7, 1993, the Circuit Court rendered an Opinion and Order on Motion of Defendants to

Enforce Settlement Agreement. In this Order, the trial judge upheld the existence of an agreement,

directed the Defendants to pay $18,000 into the registry of the Circuit Court of Adams County and

precluded the Plaintiffs from seeking any type of disciplinary action against Switzer.

On January 6, 1994, Wirtz filed an appeal to this Opinion and Order. Shortly thereafter, Wirtz filed a

Designation of the Record and Statement of the Issues. In response, Switzer filed a Motion for

Sanctions asserting that the designation was not in compliance with Rule 10 of the Supreme Court

Rules. A hearing was held on February 14, 1994. Wirtz responded in writing but did not attend. On

June 20, 1994, the trial judge entered an Order on the Motion for Sanctions. The trial judge did not

impose any sanctions on Wirtz, but the Statement of the Issues was stricken from the record in

accordance with Supreme Court Rule 10(b)(4).

On March 7, 1994, Wirtz filed a Statement of the Evidence. Switzer filed objections to the statement,

pursuant to Rule 10(c) of the Supreme Court Rules. The trial judge conducted a hearing on the

objections on April 18, 1994. Wirtz responded in writing but did not appear at the hearing. After

hearing objections to the Statement of the Evidence by Switzer's attorney, Judge Watson questioned

Christopher Holt as to the accuracy of Switzer's objections. At this time, Holt was no longer

representing Wirtz and was asked by the trial judge to attend the hearing. Holt testified that he made

himself available to Wirtz prior to the hearing, but Wirtz did not wish to include his testimony. Wirtz

disputes this statement claiming that Holt refused to attend the hearing without the issuance of a

subpoena. Holt agreed with the facts as presented by Switzer rather than those presented by Wirtz.

The trial judge also offered his own recollections into the record at this hearing. Subsequently, the

rulings of the trial judge were incorporated into the Order on Objections to Statement of the

Evidence, which was entered on July 21, 1994.

ANALYSIS

Wirtz contends that the settlement agreement is not enforceable due to judicial interference by the

trial judge, duress placed upon the Plaintiffs to accept the unfair agreement, the Plaintiffs being

barred from the settlement conference, threats of sanctions and dismissal of the suit, and a conspiracy

between the defense, the trial court and Wirtz's former counsel. However, the record is clear that

Wirtz accepted the settlement offer of $18,000 and then rejected the agreement at a later date after

being informed that the settlement could preclude any disciplinary action against Switzer with the
Accounting Boards. Therefore, the only issues before the Court involve questions of bias surrounding

the trial judge's rulings, proper enforcement of the settlement agreement and the trial court's ruling on

the Statement of the Evidence.

I. DID THE TRIAL COURT ERR BY ENFORCING THE ORAL SETTLEMENT

AGREEMENT AND PREVENTING THE PLAINTIFFS FROM SEEKING

DISCIPLINARY ACTIONS AGAINST SWITZER WITH THE MISSISSIPPI AND

LOUISIANA STATE BOARDS OF PUBLIC ACCOUNTANCY?

On May 13, 1993, the trial judge and the attorneys for both parties conducted a settlement

conference prior to the scheduled trial. Neither party was allowed to participate in the conference.

The attorneys agreed on a settlement in the amount of $18,000. After the attorneys conferred with

their clients an oral agreement was reached, and the jury panel was dismissed. Subsequently, the

parties were unable to agree on the wording of the settlement agreement, and a dispute arose. Wirtz

now claims that no agreement exists.

A. STANDARD OF REVIEW

The standard of review for examining the findings of fact of a trial judge is well settled. The findings

of fact of a trial court judge will not be disturbed by this Court unless there is reasonable certainty

that the findings were manifestly wrong and against the overwhelming weight of the evidence.

Richardson v. Riley, 355 So.2d 667, 668 (Miss. 1978); See also, Travis v. Hartford Accident and

Indemnity Co., 630 So.2d 337 (Miss. 1993); Collins by Smith v. McMurry, 539 So.2d 127 (Miss.

1989).

B. DID THE PARTIES REACH AN AGREEMENT

Wirtz makes several arguments on this point. However, the record, in Wirtz's Response to Motion to

Enforce Settlement, is clear that the parties reached an agreement to settle on May 13, 1993. Despite

the appearance of a settlement, Wirtz's arguments will be briefly discussed.

1. Duress

Wirtz claims that the settlement agreement is not valid due to duress placed on the Plaintiffs by the

trial court. Wirtz contends that the trial court was so unfair in its rulings and posture towards the

Plaintiffs as to force them to accept an agreement that was patently unfair and unacceptable to the

average person. Wirtz also claims that during the settlement conference the trial judge clearly

indicated to their attorneys that a directed verdict was inevitable unless the case was settled.

However, none of these allegations are supported by the voluminous record. While it is clear that the

trial judge was quite agitated with Wirtz from the start due to constant delays in setting the case for

trial, there are no examples of threats to dismiss the case. In fact, Wirtz's claims are directly

contradicted by the statements of Christopher Holt and Judge Watson at the hearing on the

Statement of the Evidence. These statements give rise to Wirtz's claim of a conspiracy but are the

only recorded statements available to the Court.

Switzer contends that Wirtz's claims of duress are misplaced and reflect a fundamental

misunderstanding of the concept. This Court agrees. As suggested by Switzer, Wirtz had some
serious expert witness problems shortly before trial. An expert is required to prove malpractice on the

part of an accountant, and Wirtz had one expert who was most likely unavailable (literally but not

legally) and another who was noticed to the defense only two days prior to trial. The trial judge

initially excluded the testimony of the most recent expert but later changed his mind, allowing

Switzer to choose between the two experts. This choice was never made due to the settlement.

There appears to be no merit in Wirtz's claim of duress. It is possible that the Plaintiffs were

intimidated by the gruff and intolerant nature of the trial judge, but there is no evidence of duress or

threats created by the trial judge.

2. Lack of Contemporaneous Writing

Wirtz argues that the lack of a writing to support the claims of a settlement agreement makes the

agreement void because of the potential for fraud, mistake, and disputes. However, this Court has

consistently recognized the validity of oral settlement agreements. See Travis v. Hartford Accident

and Indemnity Co., 630 So.2d 337 (Miss. 1993); Collins v. Dixie Transport, Inc., 543 So.2d 160

(Miss. 1989).

3. Attorneys had no Authorization to Settle

Wirtz claims that their attorneys did not have the authority to enter this agreement. As stated by

Switzer:

[I]t is presumed that an attorney who has represented a party is authorized to take all action

necessary to conduct the litigation. The burden of showing that the attorney had no authority to

act is upon the party denying such authority. See Terrain Enterprises, Inc. v. Western Cas.

and Surety Co., 774 F.2d 1320, 1322 (5th Cir. 1985), citing Great Atlantic & Pacific Tea Co.

v. Majure, 176 Miss. 356, 168 So. 468, 472 (1936) and Hirsch Bros. & Co. v. R. E.

Kennington Co., 155 Miss. 242, 124 So. 344, 347-48 (1929).

The record indicates that the attorneys for Wirtz did have the authority to make the agreement. Wirtz

failed to prove that they did not.

Despite all of the contentions presented by Wirtz, it is undeniable that Wirtz admitted to the existence

of a settlement agreement in the amount of $18,000. Therefore, the trial court acted properly in

treating the settlement agreement as valid.

C. DOES THE AGREEMENT BAR THE INSTITUTION OF DISCIPLINARY ACTION

AGAINST SWITZER WITH THE MISSISSIPPI AND LOUISIANA STATE BOARDS OF

ACCOUNTANCY

Wirtz argues that, even if an agreement exists, no agreement was made regarding the desire of the

Plaintiffs to seek disciplinary action against Switzer with the Mississippi and Louisiana State Boards

of Accountancy. Therefore, preventing the Plaintiffs from instituting such action would constitute the

addition of a material term to the agreement to which they do not agree. Furthermore, it is in the best

interest of the public at large to discipline negligent accountants to prevent further losses by innocent

parties.
Switzer argues that Wirtz's attorneys did not reserve or except any terms or conditions from the

settlement agreement and that the agreement was made in full accord and satisfaction of all claims

arising from the allegedly negligent accounting services. The trial court agreed. In addition, Switzer

cites applicable law supporting the enforcement of settlement agreements:

The settled law in Mississippi is that "[s]ettlement agreements are highly favored in the law and

will be upheld whenever possible because they are a means of amicably resolving doubts and

uncertainties and preventing lawsuits." D. H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215

(5thCir. 1971). Mississippi "law favors the settlement of disputes by agreement of the parties

and, ordinarily, will enforce the agreement which the parties have made, absent any fraud,

mistake, or overreaching." McManus v. Howard, 569 So.2d 1213, 1215 (Miss. 1990).

Following a hearing on the Motion to Enforce Settlement, the trial court determined that this issue

was not reserved by the Plaintiffs at any time, Switzer entered the settlement agreement with the

anticipation of ending all litigation, and the trial court was not informed of this desire of the Plaintiffs

until August 30, 1993.(1) The record supports the findings of the trial court.

Although this Court has never addressed this specific issue, Switzer offers the similar case of

Downey v. Clauder, 811 F. Supp. 338 (S.D. Ohio 1992). In Downey, the Court assisted the parties

in reaching a settlement agreement in a legal malpractice action. However, Downey had previously

instituted disciplinary action against Clauder with the Cincinnati Bar Association, and that action was

still pending at the time of the settlement. After Clauder refused to sign the agreement, Downey

withdrew the complaint, but there was another pending complaint still before the Cincinnati Bar.

The district court looked to the intent of the parties and the circumstances surrounding the

agreement. The court determined that Clauder settled to avoid disciplinary proceedings and gave this

principle purpose the greatest weight. The court concluded that without the settlement of all

remaining claims the agreement had little value to Clauder. Id. at 339-40. The court also noted that,

if the second complaint was of importance to Downey, it should have been excepted from the

agreement. Id. at 340.

Switzer analogizes Downey with the case sub judice. Because a settlement of the claim would have

little value to Switzer if Wirtz was able to seek disciplinary action, Switzer contends that the intent of

the parties was to resolve all claims. Once again, Switzer points to the fact that the term was not

specifically reserved or excepted from the agreement.

In conclusion, it appears that the trial court acted properly in enforcing the agreement as to all claims.

Since the right to seek disciplinary action was never excepted from the agreement, the agreement

should prevent such future action by the Plaintiffs. It seems clear that the decision of the trial court

was not manifest error. Therefore, his decision should stand.

D. EVIDENTIARY HEARING

Wirtz also argues that the trial court erred by not conducting an evidentiary hearing on the settlement

agreement dispute. However, the trial court did conduct a hearing on the dispute. Wirtz contends

that this hearing was insufficient as Lynn and Charlena Wirtz were not allowed to testify. This fact is

undisputed, but no proffer of their testimony was made to the trial court.
If a proffer had been made, it is conceivable that the trial judge should have recused himself from an

evidentiary hearing on the matter considering the nature of the charges by Wirtz of judicial

interference and misconduct and the fact that the judge was a witness and a participant in the alleged

improprieties. Although not cited by Wirtz, this Court has held that a judge must recuse himself in a

similar situation. In Collins v. Dixie Transport, Inc., 543 So.2d 160 (Miss. 1989), the trial court held

an evidentiary hearing to determine if an oral settlement agreement was actually made. Throughout

the hearing, witnesses for the Plaintiff testified that the trial judge was a witness to the agreement and

that the judge had urged them to accept the settlement offer. Following each remark, the trial judge

commented on his actions to the Plaintiff's detriment. This Court remanded the case for a new

evidentiary hearing finding that the judge assumed the role of both witness and finder of fact. Collins,

543 So.2d at 167.

Since Wirtz made no proffer of testimony, the finding in Collins is not readily applicable to the

present case at the hearing on the Motion to Enforce Settlement Agreement. However, at the hearing

on the Statement of the Evidence, the trial judge consistently offered his own testimony into the

record concerning the objections of Wirtz. Wirtz was not at the hearing to object to the statements of

the trial judge and was not represented by counsel. Since the statements were not directly addressed

by Wirtz, no testimony was proffered, and no recusal was sought at the time of the hearing, this issue

is also without merit.

In summary, Wirtz makes many arguments as to the existence of a settlement agreement. None have

merit. It is clearly indicated in the record that an agreement did exist as of May 13, 1993. No

argument presented by Wirtz is persuasive enough to overcome the manifest error standard afforded

to the trial judge. It is also clear that an agreement allowing Wirtz to seek disciplinary action would

have little value to Switzer. The fact that the key terms were not excepted from the agreement

supports the trial judge's finding of a full and binding agreement. Therefore, the decision of the trial

court is affirmed as to this issue.

II. DID THE ACTIONS AND RULINGS OF THE CIRCUIT COURT JUDGE

CONSTITUTE BIAS OR PREJUDICE AGAINST WIRTZ?

Wirtz alleges that the trial judge acted improperly, prejudicially, and with bias by consistently making

rulings favorable to Switzer while ignoring Wirtz's arguments. However, this claim is totally

unsupported by the record. The crux of Wirtz's argument involves alleged threats of sanctions,

threats of a dismissal or directed verdict, and improper affiliation of the trial judge with the defense

counsel and a defense witness.

Taken in context, the threat of dismissal by the trial judge was understandable and proper. At the

hearing on Switzer's Motion to Dismiss, the trial judge admonished Wirtz for constantly delaying the

trial of this case. Prior to the hearing, Wirtz had asked for, and received, three continuances due to

the lack of trial counsel. At the hearing, the trial judge was understandably upset that this case was

still on the docket considering the heavy case load of the Circuit Court of Adams County. He

informed Wirtz that the case would be dismissed if a trial was not conducted on May 13, 1993 for

any reason attributable to the Plaintiff. Wirtz took this statement as a threat, possibly indicating the

trial judge's bias against them. However, this interpretation is not supported by the record as there is

no evidence of intent to intimidate on the part of the trial judge. The statement was clearly made to
expedite the matter at hand.

Wirtz also argues that the trial judge threatened to grant a Motion for Directed Verdict in favor of

Switzer during the settlement negotiations on May 13, 1993. However, neither Lynn nor Charlena

Wirtz participated in the negotiations. This claim is based on alleged statements attributable to their

attorney, Christopher Holt. However, this claim is directly contradicted by the statements of Holt, the

trial judge and Switzer's attorney at the hearing on the Statement of the Evidence. Throughout the

voluminous record in this case, there is no evidence of this claim other than the statements of the

Plaintiffs.

At the hearing on the Motion to Enforce Settlement Agreement, the trial judge threatened to sanction

Wirtz following her refusal to accept the settlement agreement. The trial judge was obviously angry

over the breakdown in settlement negotiations. He assessed Wirtz the costs of impaneling the jury on

May 13, 1993, finding her opposition to the settlement agreement to be without merit and frivolous

but no sanctions were imposed. Subsequently, Switzer sought sanctions against the Wirtz for filing

inappropriate documents in the Designation of the Record and for the incendiary nature of Wirtz's

Statement of the Issues. However, the trial judge imposed no sanctions at this time, giving Wirtz the

benefit of the doubt since she was now acting pro se.

At no time did the trial court impose sanctions on Wirtz. Despite the contentions of Wirtz, no duress

to accept the agreement could arise from the consideration of sanctions because all occurred

following the settlement agreement. The trial judge acted properly at all times and only imposed the

fee for the jury cost after finding Wirtz's objection to the settlement to be frivolous.

Wirtz also argues that the trial judge erred by striking designated documents from the Designation of

the Record. The judge did allow Wirtz to designate the entire record but found many documents to

be duplicative and in violation of Rule 10 of the Supreme Court Rules. No improper behavior can be

found as to this assertion. It appears that the trial judge strictly followed the requirements of Rule 10.

Finally, Wirtz contends that the trial judge showed bias and intimidated the Plaintiffs by speaking of

his long-term friendship with a partner in the defense counsel's firm and with a defense witness. At

the hearing on the Motion to Dismiss, the defense expressed concern over deposing a witness,

Federal Judge David Bramlette, who had represented the heirs in their suit against Wirtz. The trial

judge stated that Bramlette was a lifelong acquaintance, and there should be no problem in taking his

deposition. At the hearing, the trial judge also inquired about the health of William O. Carter, Jr., a

senior partner of the defense counsel's firm of Wise Carter Child & Caraway, P. A. The trial judge

and Carter attended law school together but have had no business dealings since. The trial judge

stated as much at the hearing on the Statement of the Evidence. Wirtz makes no showing of improper

behavior on the part of the trial judge. The fact that the judge knows prominent members of the legal

community has little bearing on his ability to fairly administrate a case.

This issue is without merit. The record does not support a finding that the trial judge acted

improperly or prejudicially. Although the judge was firm and, at times, gruff, this Court has held that

"an occasional display of irritation, usually regretted as soon as made, does not suffice to show

personal bias or prejudice, whether the irritation was justified or not." Middleton v. Evers, 515 So.2d

940, 942 (Miss. 1987). A judge must recuse himself if a reasonable person, knowing all the

circumstances, would harbor doubts about his impartiality." Collins v. Joshi, 611 So.2d 898, 901
(Miss. 1992); Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); Mississippi Code of Judicial

Conduct, Canon 3C(1). Wirtz does not meet this standard. Therefore, it is recommended that this

issue be affirmed.

III. DID THE CIRCUIT COURT PROPERLY CONSIDER AND RULE ON

SWITZER'S OBJECTIONS TO WIRTZ'S STATEMENT OF THE EVIDENCE?

The Statement of the Evidence should convey a fair, accurate, and complete account of what

transpired with respect to those issues that are the basis for appeal. Rule 10(c) of the Supreme Court

Rules. If a disagreement exists between parties as to the content of the statement, the trial court shall

settle the differences, and the record shall be made to conform to the truth. Rule 10(e) of the

Supreme Court Rules.

Wirtz argues that the hearing on the Statement of the Evidence was a "sham," and the present

Statement of the Evidence does not conform to the truth. Wirtz was not present at the hearing which

was held on April 18, 1994.

The Circuit Judge directed Christopher Holt, Wirtz's former attorney, to appear at the hearing. After

Switzer's counsel made objections to the Statement of the Evidence as presented by Wirtz, the trial

court asked Holt if Switzer's rendition of the events was correct. Holt answered in the affirmative.

Wirtz uses terms such as "betrayal" and "conspiracy" to describe the preceding event, but there is no

hint of impropriety in the record. Wirtz was given the opportunity to attend the hearing but chose not

to.

The trial judge, the defense and Christopher Holt agree that the Statement of the Evidence conforms

to the truth in compliance with Rule 10. Wirtz claims that it does not. The record provides no basis

for doubting the statements of the former. Clearly, there is no proof of manifest error on the part of

the trial judge. Therefore, the decision of the trial judge is affirmed as to this issue.

CONCLUSION

After reviewing the voluminous record in this case, very few facts are uncontested. It is clear that

Wirtz felt prejudiced by the trial proceedings. It is not clear that these feelings were justified. From

the record, it is obvious that Wirtz believes that they were wronged and should be compensated.

They also believe that Switzer should be responsible for his actions. It is their perception of this

accountability that has hindered the settlement process.

Despite good intentions and zeal, Wirtz has displayed little or no understanding of the legal system.

Their arguments do not meet the necessary standards for reversal, and the issues presented have little

merit. Although it may be in the public's best interest to allow Wirtz to seek disciplinary action

against Switzer, it was not part of the settlement agreement. Therefore, Wirtz should be precluded

from seeking such action.

AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS AND SMITH, JJ.,

CONCUR. LEE, C.J., AND McRAE, J., CONCUR IN RESULT ONLY.
1. The record indicates that Wirtz did express a desire to seek disciplinary action prior to August 30.

The statement was made in the Motion for Partial Summary Judgment. However, this motion was

never addressed by the trial court because it was never set for hearing.

Ironically, this works in Switzer's favor. Since Wirtz previously expressed a desire to seek

disciplinary action, the fact that this issue was not reserved or excepted from the settlement

agreement supports the proposition that the settlement was made in full accord and satisfaction of all

claims arising from the alleged negligence.