The HONORABLE LEVIN H. CAMPBELL, United States Circuit Judge, *

for the First Circuit, sitting by designation.

 Mrs. Stewart's husband, who sued for loss of consortium

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 Stewart brought this diversity action

against defendant-appellee, MDF, Inc., after she slipped and fell at a

Wendy'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 court erred in denying, without an evidentiary hearing,

her motion to enforce a settlement agreement allegedly reached as the jury

deliberated. Defendant cross-appeals from the district court's denial of

its
2

motion for judgment as a matter of law. We affirm the district court's

handling of the settlement 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 left

thigh bone, requiring surgery, an in-hospital stay of two weeks, and aftercare, 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,

plaintiff's attorneys, Barry Ginsburg and Burton Newman, rejected on

plaintiff's behalf offers of $35,000 and $50,000 made by defendant's

attorney, Joseph Swift. The next day, before the jury began deliberating,

plaintiff's attorneys rejected an offer of $60,000. Defendant's next offer

of $75,000, made as the jury commenced deliberations, was also rejected.

Thereafter, plaintiff's counsel told defense attorney Swift that the

plaintiff was interested in a "high-low" arrangement, whereby she would

receive $50,000 if the verdict were below that amount, at most $200,000

even if the verdict were higher, and the exact amount of any award between

$50,000 and $200,000.

Defense attorney Swift called MDF's insurer, Essex Insurance Company,

with whom he discussed settlement offers. What followed is disputed. As

reported by Ginsburg and Newman, Swift told them that his client was

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 use

qualifying language (e.g., "my client might be willing to pay"), which

occasionally had been used in previous discussions. Ginsburg and Newman

allegedly told Swift that they would discuss the proposal with their

client, who was in
3

the courthouse hall. They spoke with her, and before they could tell Swift

that she accepted the offer, he told them that the jury had returned. They

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 his

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 that

when he called MDF's insurer to ask about the $50,000/$115,000 high-low

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 that time, but that Swift should continue negotiations with other

figures. Swift then told plaintiff's counsel that his client was

interested in negotiating the possibility of a high-low agreement, with a

high of $115,000 instead of plaintiff's proposed $200,000. According to

Swift, Newman immediately 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 authority. Shortly afterward,

Swift heard that the jury had reached a verdict, and he notified

plaintiff's counsel. Plaintiff's counsel then told him that their client

accepted the $50,000/$115,000 offer. Swift responded 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

him authority to enter into a high-low agreement, but authorized him to

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 asked

counsel if either party wanted to make a record. Plaintiff's
4

counsel stated that they believed a binding high-low settlement agreement

of $50,000/$115,000 had been reached, but that defendant's counsel was now

claiming he lacked authority to make such an offer. Defendant's counsel

explained that he thought he had last offered $75,000, which was rejected;

he disavowed having had authority to make the high-low offer that plaintiff

claimed to have accepted. Newman stated that this dispute "may be a matter

that would require some attention post-trial, . . . and for purposes of the

record at this point, I think I said what I want to say." The district

court then denied the request by plaintiff's counsel to enforce settlement,

reasoning that the jury verdict could be reported (since the alleged

high/low settlement agreement turned on the amount of the jury award, in

any case) and then the parties could make a further record. The court did

not make express findings, but it said it doubted whether the asserted

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 returned and announced a verdict. This resulted in an award to

Stewart of a total of $15,832.10.

Plaintiff promptly filed a motion to enforce settlement. She

requested a hearing on 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 essentially

confirmed each side's version as earlier presented to the court prior to

the verdict. The insurer backed Swift's assertion that it never gave him

authority to make the offer described by Ginsburg and Newman. The district

court denied plaintiff'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 her

motion to enforce settlement without first holding an evidentiary hearing.

She argues that such a hearing was required as there was a substantial

factual dispute concerning the existence and terms of a settlement

agreement, and says that discovery, testimonial development, and crossexamination would have 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; alternatively, even if it did, the

denial of a hearing did not materially affect the denial of the motion to

enforce settlement, because plaintiff could not demonstrate by clear and

convincing evidence that an authorized settlement agreement had been

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 affidavits

presented by the respective parties," or "may direct that the matter be

heard wholly or partly on oral testimony or deposition." This rule invests

the district court with considerable discretion to tailor the proceedings

to the practical realities surrounding the particular motion. This court

has said, it is true, that as a general rule, an evidentiary hearing should

be held when there is a substantial factual dispute over the existence or

terms of a settlement. TCBY Systems, Inc. v. EGB Assocs., 2 F.3d 288, 291

(8th Cir. 1993), cert. denied, 114 S. Ct. 2104 (1994). But this rule

presupposes that there are essential issues of fact that can only be

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 the

district court enforced a settlement agreement on an erroneous ground, and

did not fully consider whether the disputed terms were material); Greater

Kansas City Laborers Pension Fund v. Paramount Indus., Inc., 829 F.2d 644,

646 (8th Cir. 1987) (remanding for an evidentiary hearing where counsel

agreed to a settlement allegedly without consent from
6

his client, who was not in court to object to its enforcement). There is

no automatic entitlement to an evidentiary hearing simply because the

motion concerns a settlement agreement. See Vaughn v. Sexton, 975 F.2d

498, 505 (8th Cir. 1992), cert. denied, 507 U.S. 915 (1993). 

Here, even accepting plaintiff's version of what was said, there was

little likelihood that the motion to enforce the alleged settlement

agreement could be granted. Both defendant's counsel and representatives

of the Essex Insurance Company asserted unequivocally by affidavit that the

former had not been authorized to make a firm high-low offer, but only to

continue negotiations. We have held that "[a]lthough an attorney is

presumed to possess authority to act on behalf of the client, '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.'" Surety

Ins. Co. of California v. 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 was

authorized to offer a high-low agreement of $50,000/$115,000, the absence

of authority from the insurer-client, as detailed in the affidavits of

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 the

defendant's affidavits disclaiming authority (e.g., possible insurance

company documents authorizing 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
7

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

a collateral action which imposes on the party seeking specific performance

"the burden of proving, by clear, convincing and satisfactory evidence, his

claim for relief." Randall 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 present

record, the court was well within its authority to conclude that plaintiff

had neither established nor indicated that she could establish by clear

evidence of the requisite strength, the existence of an enforceable

settlement agreement.

We add that there were additional factors justifying the court's

exercise of its discretion in this matter. The judge had already heard

firsthand versions of the conversations between the attorneys within

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

rendered its verdict, they could not be suspected of tailoring their

stories to the verdict. In particular, the low jury award could not have

been a factor in Swift's disclaimer of authority to enter into the

$50,000/$115,000 high-low agreement especially when one considers that

Swift at this time reiterated the authorized $75,000 settlement offer.

The district court could further take into account the unseemliness

of holding, in effect, a mini-trial to resolve a dispute between attorneys

arising from their oral settlement talks in the corridors of the

courthouse. While on occasion such a proceeding may be required, it is not

one to be encouraged, especially when it is the product of settlement

negotiations which are expected to be candid and not chilled by fear that

informal remarks will be seized upon to create new liabilities. The

judicial policy favoring settlement, e.g., Justine Realty Co. v. Amer.

Nat'l Can Co., 976 F.2d 385, 391 (8th Cir. 1992), rests on
8

the opportunity to conserve judicial resources, not expend them further.

E.g., Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11th Cir.

1994). Here the parties' counsel were the sole witnesses to their own

conversations; and, as the court noted, counsels' representations to it

were made as officers of the court. This latter element was a further

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, about the extent of Swift's

authority and his intent to make a binding offer rather than merely an

exploratory one.

This is not a case where, after counsel jointly represented to the

district court that a settlement agreement was reached, a party later

claimed that its counsel was not authorized, and the court nevertheless

enforced the agreement without a hearing, leading the party to seek to set

aside the court's judgment under Rule 60(b). See, e.g., Greater Kansas

City Laborers Pension Fund, 829 F.2d at 645-646 (relying on similar

situation and disposition in Surety Ins. Co. of California, 729 F.2d at

582). Rather, 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 hearing

on plaintiff's motion to 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 had

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 the

evidence and reasonable
9

inferences in the light most favorable to the nonmoving party, plaintiff.

E.g., Harvey v. 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 she

did not see water before she fell because she was not looking down as she

entered the restaurant. Her husband testified that when he arrived shortly

after her fall, he saw an eighth-inch of water on the floor and felt that

the spot was slick. He also stated that at the hospital he noticed

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

saw that the vestibule floor area was dry before plaintiff entered, she

also testified that it was raining hard during the busy restaurant hour

before noon and that she knew if it rained, the floor would become wet

(since 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 plaintiff

fell, and that no mat was by the door. She and another MDF employee

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 above

evidence was sufficient to permit a jury to determine whether the unsafe

condition existed before plaintiff fell. See Scheerer v. Hardee's Food

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 jury

the question of MDF's actual or constructive notice of the unsafe

condition. In the analogous case of Spencer, where the plaintiff slipped

and fell on cleaning solution on a Missouri food store floor (which the

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.

2

1992) (bench trial applying Missouri negligence law and finding

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 inner

lobby).

10

and the reasonableness of the care extended toward business

invitees, which, in Missouri, is now a question of fact to be

determined by the totality 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

foreseeable and the defendant's exercise of care, reasonable. The jury

could have reasonably concluded on the evidence that a slippery wet floor

by the restaurant entrance was a foreseeable dangerous condition on a day

when it rained heavily during the busy customer hour when plaintiff was

injured. 

2

The district court's denial of plaintiff's motion to enforce

settlement without holding a hearing, and its denial 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.