IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

DON C. ROBERTSON, AS SUCCESSOR TRUSTEE OF THE VIOLA I.

ROBERTSON TRUST DATED OCTOBER 1, 2009; CHARLOTTE G. HARDY AS 

SUCCESSOR TRUSTEE OF THE VIOLA I. ROBERTSON TRUST DATED 

OCTOBER 1, 2009; JAMES H. HARDY AND CHARLOTTE G. HARDY,

HUSBAND AND WIFE; BONITA SUE ESCOBEDO AND JAMES D. SUMPTER,

AS SUCCESSOR TRUSTEES OF THE SUMPTER TRUST; W. MICHAEL 

ADDINGTON AND CHERYL ADDINGTON, HUSBAND AND WIFE AND

TRUSTEES OF THE W. MICHAEL AND CHERYL ADDINGTON TRUST,

Plaintiffs/Appellees,

v.

ROBERT E. ALLING AND JACQUELINE R. ALLING, INDIVIDUALLY AND AS

HUSBAND AND WIFE; MELISSA L. MOORE, INDIVIDUALLY; DOYLE K.

WARNER AND DEANNA K. WARNER, INDIVIDUALLY AND AS HUSBAND 

AND WIFE; HARRY L. VIEZENS AND MARCIA L. VIEZENS, INDIVIDUALLY 

AND AS HUSBAND AND WIFE AND AS TRUSTEES OF THE VIEZENS TRUST;

FREDERICK AND CALISTA WASHBURN, INDIVIDUALLY AND AS HUSBAND 

AND WIFE; MGF FUNDING, INC., AN ARIZONA CORPORATION; BRIAN A.

MORTENSEN AND OXANA MORTENSEN, INDIVIDUALLY AND AS

HUSBAND AND WIFE; ROBERT R. HICKS AND NICOLE HICKS,

INDIVIDUALLY AND AS HUSBAND AND WIFE; KARL F. KOHLHOFF AND 

JOAN M. KOHLHOFF, INDIVIDUALLY AND AS HUSBAND AND WIFE AND 

AS TRUSTEES OF THE KOHLHOFF FAMILY TRUST; WILLIAM D.

LAWRENCE, INDIVIDUALLY; LAWRENCE PROPERTIES, A GENERAL 

PARTNERSHIP; WILLIAM GLAUNSINGER AND LORNA GLAUNSINGER,

INDIVIDUALLY AND AS HUSBAND AND WIFE; THOMAS GRAHAM AND 

REGINA GRAHAM, INDIVIDUALLY AND AS HUSBAND AND WIFE;

GRAHAM HOMES, LLC, AN ARIZONA LIMITED LIABILITY COMPANY;

GERALD L. GRAHAM, INDIVIDUALLY AND AS TRUSTEE OF THE GRAHAM 

FAMILY TRUST, AND VELMA GRAHAM, HIS WIFE, 

Defendants/Appellants.
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

2

No. 2 CA-CV 2013-0148

Filed August 5, 2014

Appeal from the Superior Court in Gila County

No. CV201100165 

The Honorable Peter J. Cahill, Judge

REVERSED AND REMANDED IN PART; VACATED IN PART

COUNSEL

Grasso Law Firm, P.C., Chandler

By Robert Grasso, Jr. and Jenny J. Winkler

Counsel for Plaintiffs/Appellees

Clark Hill PLC, Scottsdale

By Russell A. Kolsrud and Mark S. Sifferman

Counsel for Defendants/Appellants

OPINION

Judge Howard authored the opinion of the Court, in which Judge 

Vásquez and Judge Miller concurred.

H O W A R D, Judge:

¶1 Appellants, collectively “the Allings,” appeal from the 

trial court’s grant of a motion to enforce settlement in favor of 

Appellees, collectively “the Robertsons.”1 On appeal, the Allings

argue that the trial court erred in concluding their attorney had 

authority to settle the matter, that Rule 80(d), Ariz. R. Civ. P., was 

 

1For brevity, we refer to the appellants and appellees by the 

last name of the first party from each group.
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

3

inapplicable, and that material facts of the agreement were not in 

dispute. Because we conclude reasonable minds could differ about 

whether the Allings’ counsel had apparent authority to settle the 

case based on the undisputed facts presented, and whether Rule 

80(d) applies, we reverse in part, vacate in part, and remand for 

further proceedings.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to the 

Allings, the nonmoving party on the motion to enforce the 

settlement. See Canyon Contracting Co. v. Tohono O’Odham Hous. 

Auth., 172 Ariz. 389, 390, 837 P.2d 750, 751 (App. 1992) (summary 

judgment standard of review applies to grant of motion to enforce 

settlement). In 2011, the Robertsons sued the Allings to quiet title, 

for a prescriptive easement, and for a permanent injunction 

regarding the Allings’ real property through which a diversion ditch 

and water pipe drew water from Bonita Creek to the Robertsons’ 

properties. Pretrial litigation continued until January 29, 2013, when 

the parties attended a settlement conference. The Robertsons

expressly conditioned attending the settlement conference on all of 

the Allings’ presence, and all of the Allings or their representatives 

with settlement authority were present. Although the parties did 

not reach a settlement agreement at the conference, the Allings and 

their counsel agreed, through the mediator, to leave its last 

conveyed settlement offer open for an additional forty-eight hours. 

That offer expired on January 31 without an acceptance from the 

Robertsons. 

¶3 The Allings’ counsel sent an e-mail to the Allings on 

February 2 recommending that, although their offer had expired, 

they leave the offer open until he had a further opportunity to speak 

with opposing counsel. On February 4, however, five of the twentyseven Allings e-mailed their counsel, telling him they no longer 

wished to settle with the terms they had offered at the settlement 

conference. The Allings’ counsel received the e-mail and “may have 

seen it” but “did not read it.” Thus, on February 6 when asked by 

the Robertsons’ counsel on the telephone, the Allings’ counsel stated 

that “the offer was still open for acceptance.” 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

4

¶4 The Robertsons’ counsel e-mailed the Allings’ counsel 

after their phone conversation to confirm that the offer was still 

open and listed the terms of the offered settlement. The Allings’ 

counsel responded simply, “Confirmed.” On February 8, the 

Robertsons’ counsel e-mailed and faxed the Allings’ counsel the 

Robertsons’ acceptance of the offer. The Robertsons’ counsel filed a 

notice of case resolution with the trial court, which was distributed 

to counsel for all parties, and the court vacated the April trial date. 

¶5 Several weeks later, the Allings’ counsel responded to 

the acceptance and inquiries from opposing counsel regarding draft 

settlement documentation with a “counter-draft” and explained that 

some of the Allings had been disputing his settlement authority. 

The Robertsons then filed the motion to enforce the settlement. 

After oral argument, but without an evidentiary hearing, the trial 

court ruled that the February 6 e-mail exchange constituted a 

reoffering of the first offer from the Allings, and granted the motion 

to the extent necessary to enforce the settlement described in that 

exchange. 

¶6 In its conclusions of law filed after the hearing, the court 

determined that the attempted revocation of authority was 

ineffective, and therefore the Allings’ counsel had both the actual 

and apparent authority of his clients to settle the matter. Thus, the 

court concluded the settlement was enforceable against the Allings

and the Allings were estopped to claim otherwise. It also concluded 

Rule 80(d) did not apply or was satisfied by an e-mail exchange 

between counsel on February 6 and 8. We have jurisdiction over the 

Allings’ appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-

2101(A)(1). 

Standard of Review

¶7 Regarding the Rule 80(d) arguments of the parties,2 we 

review de novo the interpretation and application of court rules. 

 

2Rule 80(d) states: “No agreement or consent between parties 

or attorneys in any matter is binding if disputed, unless it is in 

writing, or made orally in open court, and entered in the minutes.”
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

5

Haroutunian v. ValueOptions, Inc., 218 Ariz. 541, ¶ 22, 189 P.3d 1114, 

1122 (App. 2008). We review the grant of a motion to enforce a 

settlement using the same standards as for summary judgment. 

Canyon Contracting, 172 Ariz. at 390, 837 P.2d at 751. Under that 

standard, we determine de novo whether the trial court correctly 

applied the law and whether any genuine disputes exist as to any 

material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce 

N.A., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App. 2012). The trial 

court should grant summary judgment when “the moving party 

shows that there is no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law.” Ariz. R. 

Civ. P. 56(a). Summary judgment is inappropriate, however, where 

“conflicting inferences are possible” from the undisputed facts. 

Orme Sch. v. Reeves, 166 Ariz. 301, 308, 309, 802 P.2d 1000, 1007, 1008 

(1990). 

¶8 The Robertsons, however, claim this court is bound by 

the trial court’s findings of fact under Rule 52(a), Ariz. R. Civ. P., 

unless they are clearly erroneous. But Rule 52(a) applies “[i]n all 

actions tried upon the facts without a jury or with an advisory jury.” 

The trial court here did not conduct a trial, but an oral argument. 

And, under Canyon Contracting, the summary judgment standard 

applies.

3 172 Ariz. at 390, 837 P.2d at 751. 

¶9 The Robertsons further assert the Allings failed to 

identify any facts in dispute and never requested the trial court to 

take evidence. But the Allings do identify a factual dispute 

concerning apparent authority in their brief and, at the hearing 

below, specifically told the trial court, “This is akin to a motion for 

summary judgment proceeding where there are so many issues of 

fact. There are disputed issues of fact, there are verbal things that 

the parties disagree about.” Accordingly, we review the arguments 

 

3At oral argument, the Robertsons cited Reed v. Reed, 154 Ariz. 

101, 740 P.2d 963 (App. 1987), in support of their position. But Reed

requires “an[] adversarial hearing or proceeding at which the trial 

court hears evidence and resolves disputed factual issues” before 

Rule 52 applies. Id. at 103, 740 P.2d at 965. No such hearing 

occurred here. 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

6

on appeal as though the court’s ruling was one granting summary 

judgment, despite language in the court’s ruling to the contrary. See 

John Munic Enters., Inc. v. Laos, 235 Ariz. 12, ¶ 9, 326 P.3d 279, 283

(App. 2014) (“[C]ourts look to substance not labels.”).

Summary of Rule 80(d) Decision

¶10 Due to the intertwined nature of the requirements of 

Rule 80(d) and the determination of apparent authority, we 

summarize our analysis of that issue before proceeding. We 

conclude that a genuine dispute of material fact exists concerning 

the Allings’ attorney’s authority to extend the time for the 

Robertsons to accept the settlement offer and prevented the entry of 

summary judgment. That conclusion normally would require us to 

vacate the summary judgment and remand the case for trial or 

evidentiary hearing on the disputed factual issue or other 

proceedings. But we further conclude that the genuine dispute of 

fact means the agreement is “in dispute” and makes Rule 80(d) 

applicable. Because the Allings’ assent to the contract is not in 

writing, the requirements of Rule 80(d) were not met, and the 

agreement is unenforceable as a matter of law. See Canyon 

Contracting, 172 Ariz. at 392-93, 837 P.2d at 753-54. This conclusion 

requires reversing the judgment in favor of the Robertsons on that 

issue and not a remand for proceedings on the issue of the Allings’ 

counsel’s authority. We explain these conclusions below, analyzing 

the issue of the Allings’ attorney’s authority within the context of 

Rule 80(d).

Settlement Authority and Rule 80(d)

¶11 The Allings first argue their attorney had no actual or 

apparent authority to settle the case, and the trial court erred in 

concluding otherwise and enforcing the settlement. The Allings also 

argue that because the requirements of Rule 80(d) were not met, the 

settlement agreement is unenforceable as a matter of law, and the 

court erred in finding the rule inapplicable. The Robertsons contend 

that the Allings’ attorney had either actual or apparent authority, 

and that neither the existence nor terms of the agreement are in 

dispute, only its enforceability, and therefore Rule 80(d) is 

inapplicable. 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

7

Applicability of Rule 80(d) 

¶12 Rule 80(d) provides that “[n]o agreement or consent 

between parties or attorneys in any matter is binding if disputed, 

unless it is in writing, or made orally in open court, and entered in 

the minutes.” The rule applies to settlement agreements. Canyon 

Contracting, 172 Ariz. at 391, 837 P.2d at 752. But where “the 

existence of the settlement agreement and its terms are not in 

dispute,” the rule does not apply. Hays v. Fischer, 161 Ariz. 159, 166, 

777 P.2d 222, 229 (App. 1989). We therefore determine first whether 

Rule 80(d) applies. 

¶13 In Canyon Contracting, in determining whether an 

agreement was “disputed” and therefore whether Rule 80(d) 

applied, our examination included whether a genuine dispute of 

material fact existed regarding the attorney’s authority to settle the 

case. 172 Ariz. at 392, 837 P.2d at 753. Because we concluded a 

factual dispute existed, we determined that Rule 80(d) applied. Id.

¶14 We further determined that where the attorney’s 

settlement authority was subject to a genuine dispute of material 

fact, Rule 80(d) required the writings to include the written assent of 

the principal. Id. at 393, 837 P.2d at 754. We reasoned that “[i]n 

order to effectuate Rule 80(d)’s policy of avoiding difficult issues of 

proof in the context of enforcing settlement agreements, we hold 

that the manifestation of assent, as well as the terms of the 

agreement, must be in writing.”4 Id. Because one party’s assent to 

 

4Although the plain language of Rule 80(d) does not require 

the assent to be in writing, see Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 

P.3d 1027, 1030 (App. 2005) (we usually look to plain language of 

rule to determine intent of drafters), in Canyon Contracting this court 

interpreted the rule to include this requirement. We only overturn 

long-standing precedent for compelling reasons. Young v. Beck, 227 

Ariz. 1, ¶ 22, 251 P.3d 380, 385 (2011). Even though the burden is 

lower with regard to court rules, see Wells v. Fell, 231 Ariz. 525, ¶ 11, 

297 P.3d 931, 934 (App. 2013), the Robertsons have not argued we 

should disagree with Canyon Contracting, no compelling reason 

appears to overturn Canyon Contracting, and we decline to do so. 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

8

the terms was not in writing, we reversed the trial court’s judgment 

and remanded for further proceedings. Id.

¶15 Rule 80(d) thus requires an actual “dispute,” and the 

party relying on Rule 80(d) must show at least a genuine dispute of 

material fact concerning the agreement or the lawyer’s authority to 

bind the party in the settlement of a lawsuit.

5 Id. at 392, 837 P.2d at 

753. The rule then specifies the procedure for proving an agreement 

affecting litigation by requiring the agreement or consent and the 

manifestation of assent to the agreement to be in writing; where the 

attorney’s authority is disputed, the assent must come from the 

principal directly. Id. at 393, 837 P.2d at 754; Rule 80(d). We 

therefore determine next whether the Allings have raised a genuine 

dispute concerning their attorney’s authority. 

Attorneys’ Settlement Authority

¶16 In Arizona, an attorney’s authority to bind a client to a 

settlement agreement has two governing principles. First, as a 

general rule, lawyers have no inherent or implied authority to settle 

a case. United Liquor Co. v. Stephenson, 84 Ariz. 1, 3, 322 P.2d 886, 887 

(1958); Restatement (Third) of the Law Governing Lawyers § 22

(2000) (hereinafter “Lawyers”). Thus, ordinarily the attorney may 

not settle or compromise a claim “without the client’s express, actual 

authorization.” Garn v. Garn, 155 Ariz. 156, 160-61, 745 P.2d 604, 

608-09 (App. 1987). Clients remain free to revoke their attorney’s 

settlement authority at any time. Lawyers § 22(3) & cmt. c. Clients 

are bound, however, “by a settlement reached by [their attorney] 

before revocation.” Lawyers § 22 cmt. c.

¶17 Second, despite the general rule, principles of agency 

law also govern the attorney-client relationship, and the actions of 

the client may alter the general rule. See Panzino v. City of Phoenix, 

196 Ariz. 442, ¶ 17, 999 P.2d 198, 203 (2000). Thus, “if the client 

places the attorney in a position where third persons of ordinary 

 

5Because Rule 80(d) is contained in the Arizona Rules of Civil 

Procedure, it applies only to “suits,” see Ariz. R. Civ. P. 1, and is 

limited to agreements or consents in litigation. 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

9

prudence and discretion would be justified in assuming the attorney 

was acting within his authority, then the client is bound by the acts 

of the attorney within the scope of his apparent authority.” Ariz. 

Title Ins. & Trust Co. v. Pace, 8 Ariz. App. 269, 271-72, 445 P.2d 471, 

473-74 (1968). Once cloaked with apparent authority, “the 

termination of the lawyer’s [actual] authority does not terminate his 

apparent authority as to third parties, i.e., adverse litigants.” 

Panzino, 196 Ariz. 442, ¶ 17, 999 P.2d at 203; see also Restatement 

(Third) of Agency § 3.11 cmt. c (2006) (hereinafter “Agency”) (“Once 

such a manifestation has been made, it remains operative 

independent of manifestations as between principal and agent that 

terminate actual authority.”). 

¶18 When an attorney acts within the apparent scope of his 

authority, those acts “are binding on the principal as against a third 

party who had formerly dealt with the principal through the agent 

and who had no notice of the revocation, because such a third party 

is justified in assuming the continuance of the agency relationship.” 

Panzino, 196 Ariz. 442, ¶ 17 n.5, 999 P.2d at 203 n.5; see also Scott v. 

Randle, 697 N.E.2d 60, 67 (Ind. Ct. App. 1998) (attorney may have 

apparent authority to finalize settlement negotiations during 

litigation where client places attorney “in the position of sole 

negotiator on his behalf”); Nelson v. Consumers Power Co., 497 

N.W.2d 205, 208-09 (Mich. Ct. App. 1993) (attorney has apparent 

authority to bind client to settlement, and agreement binding if 

made in writing and signed by attorney); Kaiser Found. Health Plan of 

the Nw. v. Doe, 903 P.2d 375, 379 (Or. Ct. App. 1995) (attorneys can 

bind clients to settlement when cloaked in apparent authority).

¶19 Apparent authority is established by conduct of the 

principal that leads the third party to conclude the agent has 

authority. Canyon Contracting, 172 Ariz. at 392, 837 P.2d at 753. The 

third party’s reliance on this apparent authority still must be 

reasonable in order to bind the principal to the agent’s acts. Miller v. 

Mason-McDuffie Co. of S. Cal., 153 Ariz. 585, 590, 739 P.2d 806, 811 

(1987). Thus, whether apparent authority exists is an issue of fact. 

Hays, 161 Ariz. at 163, 777 P.2d at 226. Agency § 3.11 cmt. c explains 

that it is not reasonable to assume the agent has authority when the 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

10

“agent’s authority was limited in duration or to a specific 

undertaking.”

¶20 In Canyon Contracting, we applied these principles to 

determine whether an alleged settlement was enforceable. In that 

case, an attorney and principal appeared together at a settlement 

conference, but the parties later disputed whether a settlement was 

reached, and the correspondence after the conference supported 

conflicting inferences about the existence of the alleged settlement

agreement. 172 Ariz. at 392, 837 P.2d at 753. Based on those facts, 

we concluded “[n]othing in the record presently before us compels a 

finding that [the attorney] had apparent authority to settle the case 

or that [the third party] reasonably relied upon such authority.” Id. 

Additionally, we concluded “reasonable minds could differ 

regarding the effect of [the principal]’s mere presence at that 

[settlement] conference and his subsequent failure to notify [the 

third party] directly that he had rejected the proposed terms.” Id. 

We therefore found the effective grant of summary judgment on the 

issue inappropriate and reversed and remanded for further 

proceedings. Id. at 393, 837 P.2d at 754.

Actual Authority in this Case

¶21 The Allings’ and their counsel appeared together at the 

settlement conference. No settlement was reached. Some of the 

Allings revoked their attorney’s authority on February 4 in an e-mail

that he received but did not read. That revocation effectively 

terminated his actual authority. See Agency § 1.04(4) (person has 

notice of fact if person has reason to know fact or should know fact 

to fulfill duty owed to another person); E.R. 1.4 & cmt. 2, Ariz. R. 

Prof’l Conduct, Ariz. R. Sup. Ct. 42 (attorney has duty of reasonable 

communication with client, particularly respecting settlement).

Accordingly, the Allings’ counsel had no actual authority and his 

clients were not bound by the settlement on that basis. See Garn, 155 

Ariz. at 160-61, 745 P.2d at 608-09. The court erred in concluding 

otherwise. 

¶22 The Robertsons argue, however, this notice was 

ineffective to terminate the Allings’ counsel’s actual authority 

because the Allings’ counsel did not read the e-mail. The argument 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

11

is without merit, and none of the authorities the Robertsons cite 

supports the proposition that an attorney who has received a client 

communication but does not read it through neglect or inattention 

may somehow avoid the legal consequences of the communication 

with respect to his client. See Casey v. Ill. Cent. Gulf R.R., 687 F. Supp. 

1112, 1115 (W.D. Ky. 1988) (because defendant bore risk of mistaken 

factual assumption to settlement agreement, settlement enforceable 

against defendant); Panzino, 196 Ariz. 442, ¶ 17 & n.5, 999 P.2d at 203

& n.5 (termination of lawyer’s actual authority does not terminate 

apparent authority to third parties); Restatement (Second) of Agency 

§ 124A (1958) (termination of actual authority does not terminate 

apparent authority); Id. § 125 (conditions under which apparent 

authority ends as to third parties); Restatement (Second) of 

Contracts § 154 (1981) (hereinafter “Contracts”) (circumstances 

under which party bears risk of mistake of fact); Lawyers § 27 cmt. d 

illus. 3 (lawyer who fails to disclose lack of settlement authority at 

conference cannot bind client to settlement). 

¶23 The Robertsons also appear to argue that even if some 

of the Allings effectively revoked their counsel’s authority, the 

remaining Allings were bound by the settlement. But, as the Allings 

pointed out at oral argument, although the other clients did not 

explicitly revoke their attorney’s authority, they did not extend it 

either. And the Robertsons offer no authority for the proposition 

that where an attorney represents a group of parties in a matter, and 

a significant number of them revoke authority to offer a settlement 

that purports to provide global resolution of the litigation, the 

attorney’s conduct still may bind the clients who did not revoke his 

authority. We therefore do not consider the argument further. See

Ariz. R. Civ. App. P. 13(a)(6) (brief shall contain argument with 

citations to authorities and statutes relied on); Ness v. W. Sec. Life Ins. 

Co., 174 Ariz. 497, 503, 851 P.2d 122, 128 (App. 1992) (“Arguments 

unsupported by any authority will not be considered on appeal.”).

¶24 The Robertsons further argue, for the first time on 

appeal, that no deadline was included in the offer, either because a 

deadline was not a material term or because it was not stated in the 

offer itself, and therefore their acceptance constituted a counter-offer 

that the Allings accepted through silence. But they stipulated at oral 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

12

argument below that the parties agreed to the forty-eight hour 

deadline ending January 31, 2013 at 5:00 p.m., and thus the deadline

was an explicit term of the offer made at the settlement conference. 

They cannot change their position now. See Black v. Perkins, 163 

Ariz. 292, 293, 787 P.2d 1088, 1089 (App. 1989) (“When a party by 

pleading or stipulation has agreed to a certain set of facts, he may 

not contradict them.”). Thus, once the deadline passed, they could 

no longer accept that offer. Contracts § 41(1). To the extent they 

argue the deadline was not a material term and therefore was not 

binding, they offer no authority to support that argument. See Ariz. 

R. Civ. App. P. 13(a)(6); Ness, 174 Ariz. at 503, 851 P.2d at 128. 

¶25 We therefore also reject the Robertsons’ argument that 

even if the offer expired, the Robertsons’ later acceptance constituted 

a counter-offer that the Allings accepted through silence. As the 

trial court correctly concluded at the hearing, the original offer 

lapsed, the Allings’ counsel re-offered it, and the Robertsons

accepted the “new” offer. Because the Robertsons’ acceptance was 

in response to the new offer, their acceptance was not a counter-offer 

after a lapsed offer. Nor does this factual situation suggest that the 

Allings had a duty to reply or be deemed to have accepted. Cf.

Swingle v. Myerson, 19 Ariz. App. 607, 609, 509 P.2d 738, 740 (1973) 

(where offeree takes benefit of services under circumstances 

indicating compensation expected, offeree can accept offer by 

silence). Accordingly, the authority the Robertsons cite for their

argument on manifestation of assent to a counter-offer through 

silence is inapposite.

Apparent Authority in this Case

¶26 The Robertsons additionally argue the trial court 

correctly concluded the Allings’ counsel had apparent authority, 

and absent notice from the Allings to the Robertsons of the 

revocation, the Allings still were bound to the settlement by their 

counsel’s actions. The court reached this conclusion as a matter of 

law, based on the facts presented in the record. We therefore review 

its conclusion de novo. See Dayka & Hackett, LLC, 228 Ariz. 533, ¶ 6, 

269 P.3d at 712. 
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

13

¶27 Although close, we conclude that by viewing the 

underlying facts in the light most favorable to the Allings, as we 

must, this case is analogous to the facts of Canyon Contracting and 

that reasonable minds could draw different inferences from the

undisputed facts. 172 Ariz. at 390, 837 P.2d at 751. The Allings and 

their counsel attended the settlement conference together, as in 

Canyon Contracting, and reasonable minds could differ on the effect 

of the Allings’ presence there. The record does not show whether 

the Allings’ counsel conducted the negotiations for his clients or 

they participated directly with the mediator. Indeed, the 

Robertsons’ insistence that the Allings actually attend the conference 

in person could indicate the Robertsons did not think the Allings’ 

counsel had unlimited, or any, settlement authority before the 

conference, and the Robertsons do not explain what happened 

during the conference that changed their understanding of the 

Allings’ counsel’s authority. 

¶28 The parties’ mutual agreement, albeit at the Robertsons’ 

suggestion, to place a forty-eight hour window on accepting the 

offer further supports that inference. Once that time period lapsed, 

the Allings were no longer present, and the settlement conference 

was over, one could reasonably conclude that some new 

manifestation from the Allings would be required before the 

Allings’ counsel would have apparent authority to make or accept 

any other offer. See Garn, 155 Ariz. at 160-61, 745 P.2d at 608-09 (by 

default, attorneys have no inherent or implied authority to settle); see 

also Contracts § 41(1) (offeree’s power of acceptance terminates at 

time specified in offer).

¶29 Nevertheless, competing inferences exist regarding the 

Allings’ counsel’s authority. The Allings were present at the 

settlement conference and although the record does not indicate 

whether their counsel or the Allings negotiated with the mediator, 

the Allings ultimately allowed their counsel to work out the details 

of the initial offer with opposing counsel. Having already given 

their counsel authority to finalize the details of the same offer, 

reasonable minds could conclude that the Allings had cloaked their 

counsel with the apparent authority to re-offer, just days later, the 

same offer from the settlement conference, and that the Robertsons
ROBERTSON, ET AL. v. ALLING, ET AL.

Opinion of the Court

14

reasonably relied on the Allings’ counsel’s representations of his 

authority. See E.R. 4.1(1), Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct. 42 

(attorneys have duty not to knowingly “make a false statement of 

material fact or law to a third person” in course of representing 

clients); Panzino, 196 Ariz. 442, ¶ 17, 999 P.2d at 203; Pace, 8 

Ariz. App. at 271-72, 445 P.2d at 473-74; see also In re Artha Mgmt., 

Inc., 91 F.3d 326, 329 (2d Cir. 1996) (although based on different law 

concerning attorney authority, because of “unique nature of the 

attorney-client relationship” and “the public policy favoring 

settlements,” court presumes “that an attorney-of-record who enters 

into a settlement agreement, purportedly on behalf of a client, had 

authority to do so”); Ackerman v. Sobol Family P’ship, LLP, 4 A.3d 288, 

299-300, 304-05 (Conn. 2010) (after previously representing parties at 

settlement conference, conferring publicly with clients after 

conference, and assuring opposing counsel he had authority, lawyer 

had apparent authority and could bind client to settlement).

¶30 Ultimately, these competing inferences required a 

factual resolution and precluded the trial court from deciding the 

issue as a matter of law. See Orme Sch., 166 Ariz. at 308, 309, 802 P.2d 

at 1007, 1008; see also Shaffer v. Ins. Co. of N. Am., 113 Ariz. 21, 22, 545 

P.2d 945, 946 (1976) (remanding for trial on issue of settlement 

authority where statute allowed party to demand trial on disputed 

fact). Given the lapse of the established time for acceptance of the 

initial offer, the apparent need to secure the Allings’ physical 

presence at the settlement conference to ensure the Allings’ 

counsel’s authority, and the lack of any further manifestations from 

the Allings to the Robertsons after the settlement conference, we 

cannot say as a matter of law that the Allings’ manifestations 

invariably would have led others to believe their counsel had either 

continuing settlement authority or the authority to re-offer the 

lapsed offer with the same terms. Accordingly, a genuine dispute of 

material fact exists with regard to the Allings’ attorney’s authority, 

and Rule 80(d) applies. See Canyon Contracting, 172 Ariz. at 392, 837 

P.2d at 753. 

Rule 80(d) Compliance

¶31 Because Rule 80(d) applies, we must determine whether 

its requirements were met here. As we noted above, where the 
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Opinion of the Court

15

attorney’s settlement authority was subject to a genuine dispute of 

material fact, the writings were required to include written assent by 

the principal in order to comply with Rule 80(d); any manifestations 

of assent by the attorney could not be attributed to the client. 

Canyon Contracting, 172 Ariz. at 393, 837 P.2d at 754. This 

requirement supports the Rule’s purpose of avoiding difficult issues 

of proof. Id. 

¶32 Here, although the terms of the purported settlement 

agreement are in writing, and the Allings’ counsel manifested his 

assent, the Allings’ assent to the terms of the agreement was not 

manifested in writing. As in Canyon Contracting, we conclude Rule 

80(d) therefore precludes enforcement of the purported settlement 

agreement. Id. Accordingly, the trial court erred in finding 

compliance with the requirements of Rule 80(d).

¶33 The Robertsons argue, however, that even if Rule 80(d)

applies, its terms were met here, because the agreement was 

sufficiently set forth in writing by counsel, relying on Hays, 161 Ariz. 

at 166, 777 P.2d at 229. In Hays, we stated the record showed 

unmistakably that the attorney represented the client and had the 

client’s authority to enter into the settlement agreement. Id. We 

then stated Rule 80(d) did not apply when “[t]he only issue was 

whether [client] was bound by the settlement agreement” and the 

agreement in question was not disputed. Id. But we distinguished 

this situation in Canyon Contracting, reasoning that in Hays the 

attorney’s settlement authority was not in question, only whether 

the client was bound by the agreement before personally signing it, 

which was a purely legal question. 172 Ariz. at 392, 837 P.2d at 753. 

Thus, in Canyon Contracting, we concluded where a dispute over the 

attorney’s authority exists, Rule 80(d) requires a direct manifestation 

of assent from the principal. Id. at 393, 837 P.2d at 754. Because we 

have concluded the Allings’ attorney’s authority was in dispute, 

Hays does not support the Robertsons’ position. 

¶34 At oral argument, the Robertsons suggested that this 

case was identical to Perry v. Ronan, 225 Ariz. 49, 234 P.3d 617 (App. 

2010), claiming in Perry the court had applied Hays to uphold a 

settlement agreement accepted beyond the undisclosed expiration 

date imposed by the clients. But in that case we concluded the offer 
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Opinion of the Court

16

could be accepted because of a delay in the communication of the 

offer and did not decide the attorney had authority beyond that 

authorized by his client. Id. ¶ 16 & n.3. 

Estoppel

¶35 The Robertsons also argue that principles of estoppel 

support enforcing the settlement agreement against the Allings even 

in the absence of express or apparent authority. “We review a trial 

court’s decision . . . to apply estoppel for an abuse of discretion.” 

Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 

1149, 1155 (App. 2007). A trial court abuses its discretion if it 

commits an error of law in reaching a discretionary conclusion. 

Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-

29 (1982).

¶36 Equitable estoppel is an independent, common law 

doctrine and thus not controlled by the enforceability of the 

settlement agreement or the requirements of Rule 80(d). See St. 

Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co., 154 Ariz. 307, 317, 

742 P.2d 808, 818 (1987). Under this doctrine, a person may “be held 

liable as a party to a transaction purportedly done on his account as 

a result of his manifestations to third parties that another is his agent 

or as a result of his inaction if he knows third parties believe another 

to be his agent and he does not take reasonable steps to notify them 

otherwise.” Fuqua Homes, Inc. v. Grosvenor, 116 Ariz. 424, 426, 569 

P.2d 854, 856 (App. 1977). The third party must rely to its detriment 

on the apparent authority. Id. at 426-27, 569 P.2d at 856-57.

¶37 The trial court’s ruling on estoppel hinged on its 

conclusion that the Allings’ counsel had apparent authority. But 

because we have concluded based on the record before us that a 

genuine dispute of fact exists concerning the Allings’ counsel’s 

apparent authority, we also must conclude the court abused its 

discretion in finding that equitable estoppel applied. We cannot say 

as a matter of law that the Allings manifested apparent authority in 

their counsel beyond the offer he extended at the settlement 

conference. The Allings may not have known the Robertsons were

relying on the Allings’ counsel having continuing settlement 

authority or that they were under an obligation to take reasonable 
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Opinion of the Court

17

steps to notify the Robertsons to the contrary. The Robertsons’ 

argument therefore must fail on appeal. To the extent the 

Robertsons rely on Lawyers § 27 cmt. b for the proposition that the 

Allings are estopped from challenging the settlement because of 

their delay in making such notification, that section still first requires 

a finding that the Allings had cloaked their attorney with apparent 

authority, and so this argument also must fail. But although this

disputed factual issue cannot be resolved as a matter of law, the trial 

court may find, after proceedings on remand, that the doctrine of 

equitable estoppel requires enforcement of the settlement 

agreement. 

Disposition

¶38 For the foregoing reasons, we conclude the settlement 

agreement is unenforceable under Rule 80(d). We further conclude 

that, on this record, summary judgment was inappropriate on the 

issue of estoppel. We therefore vacate the judgment concerning 

estoppel and reverse the remainder of the judgment enforcing the 

settlement. But we remand the case for further proceedings on the 

estoppel issue and on the underlying claims and defenses, if 

necessary. Finally, because the Robertsons were unsuccessful in this 

appeal, we deny their request for attorney fees under A.R.S. § 12-

341.01. See Perry v. Ronan, 225 Ariz. 49, ¶ 19, 234 P.3d 617, 622 (App. 

2010).