### The HONORABLE LEVIN H. CAMPBELL, United S tates Circuit Judge, * 

### for the First Circuit, sitting by designation.

Mrs. Stewart's husband, who sued for loss of consortiu m 1 

### (which he did not recover), is not a party to this appeal. Thus, references to "Stewart" in this opinion refer to Mrs. Stewart. _______________ Nos. 95-1998 and 95-2000

_________________ Betty Jane Stewart, * * Appellant/Cross-Appellee, * Appeals from the United States * District Court for the Eastern * District of Missouri. v. * * M.D.F., Inc., * * Appellee/Cross-Appellant. *

_________________ Submitted: January 10, 1996 Filed: May 9, 1996

________________ Before WOLLMAN, CAMPBELL, and MURPHY, Circuit Judges. *

________________ CAMPBELL, Senior Circuit Judge. Plaintiff-appellant Betty Jane Stewa rt brought this diversity action against defendant-appellee, MDF, Inc., after she slipped and fell at a Wend y's Old Fashioned Hamburgers restaurant owned by MDF. Following a 1 jury trial, Stewart was awarded $15,832.10 (75% of the total damages found , as she was held 25% responsible for her injuries ). Plaintiff now contends that the district cou rt erred in denying, without an evidentiary hearing, her motion to enforce a settlement agreement all egedly reached as the jury deliberated. Defenda nt cross-appeals from the district court's denial of its

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motion for judgment as a matter of law. We affirm the district court' s handling of the settl ement issue and its denial of the motion to enforce, and we also affirm the denial of defendant's motion for judgment as a matter of law.

I. Stewart, seventy years old, entered a Wendy's restaurant in St. Louis and immediately slipped and fell in the vestibule area. She broke her lef t thigh bone, requiring surgery, an in-hospital stay of two weeks, and after

care, and her mobility has since been seriously impaired.
Trial commenced on January 3, 1995. During trial, the attorneys for the parties discussed settlement. On the first two days of trial , pl aintiff's attorneys, Barry Ginsburg and Burton Newman, rejected o n plaint iff's behalf offers of $35,000 and $50,000 made by defendant' s attorney, Joseph Swift. The next day, before th e jury began deliberating, plaintiff's attorneys rejected an offer of $60,000. Defendant's next offe r of $75,000, made as the jury commenced deliberations, was also rejected. Th ereafter, plaintiff's counsel told defense attorney Swift that th e plaint iff was interested in a "high-low" arrangement, whereby she woul d receive $50,000 if the verdict were below that amount, at most $200,00 0 even if the verdict were higher, and the exact a mount of any award between $50,000 and $200,000.
Defense attorney Swift called MDF's insurer, Essex Insurance Co mpany, with whom he discusse d settlement offers. What followed is disputed. As repo rted by Ginsburg and Newman, Swift told them that his client wa s willing to enter into a high-low arrangement of $50,000/$115,000. Swift, they said, did not say he lacked authority to make the offer or us e qualifying language ( e.g. , "my client might be willing to pay"), whic h occasionallyhad been used in previous discussions. Ginsburg and Newman alle gedlytold Swift that they would discuss the proposal with thei r client, who was in

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the courthouse hall. They spoke with her, and before they could tell Swif t that she accepted the offer, he told them that the jury had returned. The y followed Swift into the courtroom and stated that plaintiff accepted the high-low offer of $50,000/$115,000. Swift said that he had to call hi s client for authority. Plaintiff's counsel responded that Swift had made an offer to settle the matter and that it had been accepted.

Swift provides a different version of the exchange. He says tha t whe n he called MDF's insurer to ask about the $50,000/$115,000 high-lo w arrangement proposed by plaintiff that morning, his contact there said he did not have authority to allow Swift to enter into a high-low agreement at t hat time, but that Swift should continue negotiations with othe r figur es. Swift then told plaintiff's counsel that his client wa s interested in negotia ting the possibility of a high-low agreement, with a highof $115,000 instead of plaintiff's proposed $200,000. According to Swift, Newman immedia tely rejected the $115,000 amount, but said he would speak with his client. Swift indicates he did not make a definite offer of a high-low agreement, as he did not have auth ority. Shortly afterward, Sw ift heard that the jury had reached a verdict, and he notifie d plaintiff's counsel. Plaintiff's counsel then told him that their client accepted the $50,000/$115,000 offer. Swift resp onded that he did not have authority for the high-low agreement and had to call his client to discuss it. He called Essex Insurance Company. His contacts there did not give himauthority to enter into a high-low agreement, but authorized him t o reiterate the $75,000 offer. Accordingly, Swift reported to Ginsburg and Newman that he lacked authority for an agreement of $50,000/ $115,000, but that his client would reiterate its last offer of $75,000. Plaintiff' s counsel rejected the latter, claiming that plaintiff already had accepted MDF's high-low offer.

Before the jury announced its verdict, the district court aske d counsel if either party wanted to make a record. Plaintiff's

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counsel stated that t hey believed a binding high-low settlement agreement of $50,000/$115,000 had been reached, but that d efendant's counsel was now claiming he lacked authority to make such an offer. Defendant's counsel explained that he thought he had last offered $7 5,000, which was rejected; he disavowed having had authority to make the high-low offer that plaintif f claimed to have accepted. Newman stated that this dispute "may be a matte r that would require some attention post-trial, . . . and for purposes of th e
rec ord at this point, I think I said what I want to say." The distric t court then denied the request by plaintiff's counsel to enforce settlement , reas oning that the jury verdict could be reported (since the allege d high/lowsettlement agreement turned on the amount of the jury award, in any case) and then the parties could make a furt her record. The court did not m ake express findings, but it said it doubted whether the asserte d settlement agreement was enforceable: "[A]ssuming that the facts are as counsel for the plaintiffs have stated them, if in fact he [MDF's counsel] is now announcing in court, as an officer of the court, that he does not have the authority, even though he may have indicated to counsel that he did or impliedly did, I don't know [that] I could enforce it." The jury then r eturned and announced a verdict. This resulted in an award t o Stewart of a total of $15,832.10.

Plaintiff promptly filed a motion to enforce settlement. Sh e requested a hearing o n the motion and enclosed affidavits of her counsel, Ginsburg and Newman. Defendant opposed the motion, submitting affidavits of its counsel, Swift , and two employees of Essex Insurance Company, with whom Swift discussed settlement offers. The affidavits essentiall y confirmed each side's version as earlier presented to the court prior to the verdict. The ins urer backed Swift's assertion that it never gave him authority to make the offer described by Ginsburg and Newman. The distric t court denied plaintif f's motion without holding an evidentiary hearing or making findings.

### 5 II. Motion to Enforce Settlement: Evidentiary Hearing Plaintiff contends that the district court erred in denying he r motion to enforce settlement without first holdi ng an evidentiary hearing. She argues that such a hearing was required as there was a substantia l factua l dispute concerning the existence and terms of a settlemen t agreement, and says that discovery, testimonial development, and cross

examination would hav e aided the court in resolving the facts. Defendant responds that the district court did not abuse its discretion in denying the request for an evidentiary hearing; alternat ively, even if it did, the denial of a hearing d id not materially affect the denial of the motion to enforce settlement, because plaintiff could not demonstrate by clear and
co nvincing evidence that an authorized settlement agreement had bee n reached.
When a motion is based on facts not appearing of record, Fed.R. Civ.P. 43(e) provides that a district court "may hear the matter on affidavit s presented by the respective parties," or "may direct that the matter b e heard wholly or partly on oral testimony or deposition." This rule invest s the district court wi th considerable discretion to tailor the proceedings to the practical real ities surrounding the particular motion. This court has said, it is true, that as a general rule, an evidentiary hearing shoul d be held when there is a substantial factual dispute over the existence or terms of a settlement. TCBY Systems, Inc. v. EG B Assocs. , 2 F.3d 288, 291 (8th Cir. 1993), cert. denied , 114 S. Ct. 2104 (1994). But this rul e pres upposes that there are essential issues of fact that can only b e properly resolved by such a hearing. See Sheng v. Starkey Labs., Inc. , 53 F.3d 192, 194-195 (8th Cir. 1995) (remanding for a hearing where th e district court enforced a settlement agreement o n an erroneous ground, and did not fully conside r whether the disputed terms were material); Greater Kansas City Laborers Pension Fundv. Paramount I ndus., Inc. , 829 F.2d 644, 646 (8th Cir. 1987) (remanding for an evidentiary hearing where counse l agreed to a settlement allegedly without consent from

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his client, who was n ot in court to object to its enforcement). There is
no aut omatic entitlement to an evidentiary hearing simply because th e motion concerns a settlement agreement. See Vaughn v. Sexton , 975 F.2 d 498, 505 (8th Cir. 1992), cert. denied , 507 U.S. 915 (1993).
Here, even accepting plaintiff's ver sion of what was said, there was little likelihood that the motion to enforce the alleged settlemen t agreement could be gr anted. Both defendant's counsel and representatives of the Essex Insurance Company asserted unequivocally by affidavit that th e former had not been a uthorized to make a firm high-low offer, but only to cont inue negotiations. We have held that "[a]lthough an attorney i s presumed to possess a uthority to act on behalf of the client, 'a judgment entered upon an agree ment by the attorney may be set aside on affirmative proof t hat the attorney had no right to consent to its entry.'" Suret y Ins. Co. of Californiav. Williams , 729 F.2d 581 , 582-583 (8th Cir. 1984). Thus even supposing, for purposes of argument, that Swift spoke in such a way as to give plaintiff's attorneys reason to believe that he wa s authorized to offer ahigh-low agreement of $50,000/$115,000, the absence of authority from the insurer-client, as detailed in the affidavits o f Swift and two insurance company supervisors, was a major stumbling block to enforcement of any resulting alleged agreement between the attorneys.
Plaintiff argues that an evidentiary hearing is required in order to allow her to search for any evidence that may exist to undercut th e defendant's affidavits disclaiming authority ( e.g. , possible insuranc e company documents aut horizing Swift to make a range of settlement offers,
or notes from the company's last telephone conversation with Swift about the high-low offer) and to conduct cross-examination. But even assuming that a search could be effectively conducted notwithstanding the various privileges that might be argued, we cannot say that the judge abused his discretion in refusing to grant an evidentiary hearing for such a

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fishing expedition. Under Missouri law, a motio n to enforce settlement is

a collateral action which imposes on the party seeking specific performanc e "the burden of proving, by clear, convincing and satisfactory evidence, hi s claim for relief." R andall v. Harmon , 761 S.W.2d 278 (Mo. Ct. App. 1988) (citation omitted). Plaintiff pointed to nothing tangible to support the existence of evidence contradicting defendant's affidavits. On the presen t record, the court was well within its authority to conclude that plaintiff had neither established nor indicated that she could establish by clea r eviden ce of the requisite strength, the existence of an enforceabl e settlement agreement.

We add that there were additional factors justifying the court' s exercise of its discretion in this matter. The judge had already hear d fi rsthand versions of the conversations between the attorneys withi n minutes of when they occurred. With the actual participants before him, he had been able to make some assessment of the strengths and credibility of each version. Moreover, since the attorneys reported before the jury rend ered its verdict, they could not be suspected of tailoring thei r stories to the verdic t. In particular, the low jury award could not have bee n a factor in Swift's disclaimer of authority to enter into th e $50, 000/$115,000 high-low agreement especially when one considers tha t Swift at this time reiterated the authorized $75,000 settlement offer.

The distr ict court could further take into account the unseemliness of holding, in effect, a mini-trial to resolve a dispute between attorneys

ar ising from their oral settlement talks in the corridors of th e courthouse. While on occasion such a proceeding may be required, it is no t
one to be encouraged, especially when it is the product of settlemen t negotiations which ar e expected to be candid and not chilled by fear that info rmal remarks will be seized upon to create new liabilities. Th e judici al policy favoring settlement, e.g. , Justine Realty Co. v. Amer
. Nat'l Can Co. , 976 F.2d 385, 391 (8th Cir. 1992), rests on

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the opportunity to conserve judicial resources, not expend them further. E.g. , Murchisonv. Grand Cypress Hotel Corp. , 13 F.3d 1483, 1486 (11th Cir

. 1994). Here the parties' counsel were the sole witnesses to their ow n
conver sations; and, as the court noted, counsels' representations to i t
were mad e as officers of the court. This latter element was a furthe r reason, absent evidence to the contrary, for the court to assume that they
were all speaking in good faith -- that they had simply misunderstood or misheard one another, as might easily be done, a bout the extent of Swift's authorityand his intent to make a binding offer rather than merely a n exploratory one.

This is not a case where, after counsel jointly represented to th e distric t court that a settlement agreement was reached, a party late r cla imed that its counsel was not authorized, and the court nevertheles s enforced the agreement without a hearing, leadin g the party to seek to set aside the court's judgment under Rule 60(b). See, e.g. , Greater Kansa s City Laborers Pension Fund , 829 F.2d at 645-646 (relying on simila r situation and disposition in Surety Ins. Co. of California , 729 F.2d a t 582). Ra ther, here, the court was faced with counsel who never for a fleeting moment in its presence reflected anything but disagreement.
We affirm the district court's refusal to hold an evidentiary h earing on plaintiff's motionto enforce the alleged settlement agreement and its denial of that motion.

III. Cross-Appeal: Motion for Judgment as a Matter of Law MDF cross -appeals from the district court's order summarily denying its motion for judgment as a matter of law. Defendant contends that the plaintiff did not make a submissible negligence case, because she failed to show that the floor was wet immediately before she fell and that MDF ha d actual or constructive notice of this alleged hazard. We review de novo the denial of a motion for judgment as a matter of law, viewing th e evidence and reasonable

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inferences in the lig ht most favorable to the nonmoving party, plaintiff. E.g. , Harveyv. Wal-Mart Stores, Inc. , 33 F.3d 969, 970 (8th Cir. 1994).

We think the district court properly sent the case to the jury

. Plaintiff testified that she felt water as she lay on the floor, though sh e did not see water bef ore she fell because she was not looking down as she entered the restaurant. Her husband testified that when he arrived shortl y after her fall, he sa w an eighth-inch of water on the floor and felt that the spot wa s slick. He also stated that at the hospital he notice d apparent grease marks on the back of his wife's raincoat which would not previously have been there. Although the store manager testified that she

sawthat the vestibule floor area was dry before plaintiff entered, sh e also testified that it was raining hard during the busy restaurant hou r before n oon and that she knew if it rained, the floor would become we t (sin ce customers previously had tracked water into it on such days)

. Indeed, she put out a "wet floor" sign. The store manager also admitted that the floor was mopped at 10:30 a.m. but not again before plaintif f fe ll, and that no mat was by the door. She and another MDF employe e testified that store policy was to do frequent walk-throughs to maintain clean, safe conditions.

Viewed in the light most favorable to the plaintiff, the abov e evidence was sufficient to permit a jury to determine whether the unsafe
con dition existed before plaintiff fell. See Scheerer v. Hardee's Foo d Systems, Inc. , 16 F.3d 272, 274-275 (8th Cir. 1994); Spencer v. Kroger Co. , 941 F.2d 699 (8th Cir. 1991). It was also sufficient to submit to the jur y the q uestion of MDF's actual or constructive notice of the unsaf e condition. In the an alogous case of Spencer , where the plaintiff slipped and fell on cleaning solution on a Missouri food store floor (which th e store manager claimed was dry at the time), this circuit held that

the liability of a store owner with respect to a slip and fall case is predicated on the foreseeability of the risk

### Cf. Storie v. United States , 793 F. Supp. 221 (E.D. Mo

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### 1992 ) (bench trial applying Missouri negligence law and findin g that water on post office tile floor without mat was a foreseeable dangerous condition on a snowy busy day, and that warning sign in outer lobby was not reasonable care to prevent injuries in inne r lobby).
10 and the reasonableness of the care extended toward busines s invitees, which, in Missouri, is now a question of fact to be determined by the totali ty of the circumstances, including the nature of the business and the method of its operations. Spencer , 941 F.2d at 703. Proof of constructive notice by a showing that the hazard existed for a certain period of time is no longer required

. Hammond v. Wal-Mart Stores, Inc. , 971 F.2d 158, 159-160 (8th Cir. 1992 ) (following Spencer ); Moss v. Nat'l Super Mkts., Inc. , 781 S.W.2d 784, 785- 786 (Mo. banc 1989) (citation omitted).
It was for the jury to evaluate the credibility of the witnesses and to determine from all of the evidence whether the dangerous condition was for eseeable and the defendant's exercise of care, reasonable. The jur y could have reasonably concluded on the evidence that a slippery wet floor by the restaurant ent rance was a foreseeable dangerous condition on a day when it rained heavily during the busy customer hour when plaintiff wa s injured. 2

The district court's denial of plaintiff's motion to enforc e settlement without holding a hearing, and its de nial of defendant's motion for judgment as a matter of law, are affirmed

. A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.