IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

D ON C. R OBERTSON , AS S UCCESSOR T RUSTEE OF THE V IOLA I.
R OBERTSON T RUST DATED O CTOBER 1, 2009; C HARLOTTE G. H ARDY AS S UCCESSOR T RUSTEE OF THE V IOLA I. R OBERTSON T RUST DATED O CTOBER 1, 2009 ; J AMES H. H ARDY AND C HARLOTTE G. H ARDY , HUSBAND AND WIFE ; B ONITA S UE E SCOBEDO AND J AMES D. S UMPTER , AS S UCCESSOR T RUSTEE S OF THE S UMPTER T RUST ; W. M ICHAEL A DDINGTON AND C HERYL A DDINGTON , HUSBAND AND WIFE AND T RUSTEES OF THE W. M ICHAEL AND C HERYL A DDINGTON T RUST ,

Plaintiffs/ Appell ees ,

v.

R OBERT E. A LLING AND J ACQUELINE R. A LLING , I NDIVIDUALLY AND AS

HUSBAND AND WIFE ; M ELISSA L. M OORE , I NDIVIDUALLY ; D OYLE K.
W ARNER AND D EANNA K. W ARNER , I NDIVIDUALLY AND AS H USBAND

AND WIFE ; H ARRY L. V IEZENS AND M ARCIA L. V IEZENS , I NDIVIDUALLY

AND AS HUSBAND AND W IFE AND AS T RUSTEES OF THE V IEZENS T RUST ; F REDERICK AND C ALISTA W ASHBURN , I NDIVIDUALLY AND AS H USBAND

AND WIFE ; MGF F UNDING , I NC ., AN A RIZONA CORPORATION ; B RIAN A.
M ORTENSEN AND O XANA M ORTENSEN , I NDIVIDUALLY AND AS

HUSBAND AND WIFE ; R OBERT R. H ICKS AND N ICOLE H ICKS , I NDIVIDUALLY AND AS H USBAND AND WIFE ; K ARL F. K OHLHOFF AND J OAN M. K OHLHOFF , I NDIVIDUALLY AND AS H USBAND AND WIFE AND

AS T RUSTEES OF THE K OHLHOFF F AMILY T RUST ; W ILLIAM D.
L AWRENCE , I NDIVIDUALLY ; L AWRENC E P ROPERTIES , A GENERAL

PAR T NERSHIP ; W ILLIAM G LAUNSINGER AND L ORNA G LAUNSINGER , I NDIVIDUALLY AND AS H USBAND AND WIFE ; T HOMAS G RAHAM AND R EGINA G RAHAM , I NDIVIDUALLY AND AS H USBAND AND WIFE ; G RAHAM H OMES , LLC, AN A RIZONA LIMITED LIABI LITY COMPANY ; G ERALD L. G RAHAM , I NDIVIDUALLY AND AS T RUSTEE OF THE G RAHAM

F AMILY T RUST , AND V ELMA G RAHAM , 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/

Appellee s

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 Alling s ,” appeal from the trial court’s grant of a motion to enforce settlement in favor of Appellees, collectively “ the Robertson s .” 1 On appeal, the Alling s argue that the trial court erred in concluding their attorney had authority to settle the matter, that R ule 80(d), Ariz. R. Civ. P.

, was

1 For 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 Alling s ’ counsel had apparent authority to settle the case based on the undisp uted 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 Alling s , 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
settlemen t). In 2011, the Robertson s sued the Alling s to quiet title, for a prescriptive easement, and for a permanent injunction regarding the Alling s ’ real property through which a diversion ditch and water pipe drew water from Bonita Creek to the Robertson s ’

pr operties. Pretrial litigation continued until January 29, 2013, when the parties attended a settlement conference. The Robertson s expressly conditioned attending the settlement conference on all of the Alling s’ presence, and all of the Alling s or their r epresentatives with settlement authority were present. Although the parties did not reach a settlement agreement at the conference, the Alling s and
their counsel agreed, through the mediator, to leave its last conveyed settlement offer open for an additio nal forty

- eight hours. That offer expired on January 31 without an acceptance from the
Robertson s

.
¶3 The Alling s ’ counsel sent an e

- mail to the Alling s on February 2 recommending that, although their offer had expired, they leave the offer open until he h ad a further opportunity to speak with opposing counsel. On February 4, however, five of the twenty

seven Alling s e

- mail ed their counsel, telling him they no longer wished to settle with the terms they had offered at the settlement
conference. The Alling s ’ counsel received the e

- mail and “may have seen it” but “did not read it.” Thus, on February 6 when asked by
the Robertson s ’ counsel on the telephone, the Alling s ’ counsel stated that “the offer was still open for acceptance.”ROBERTSON, ET AL. v. ALLING, ET AL. Opinion of the Court

4 ¶4 The Robertson s ’ counsel e

- mail ed the Alling s ’ counsel after their phone conversation to confirm that the offer was still open and listed the terms of the offered settlement. The Alling s ’ counsel responded simply, “Confirmed.” On February 8, the
Robertson s ’ counsel e

- mail ed and faxed the Alling s ’ counsel the
Robertson s ’ acceptance of the offer. The Robertson s ’ 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 wee ks later, the Alling s ’ counsel responded to the acceptance and inquiries from opposing counsel regarding draft
settlement documentation with a “counter

- draft” and explained that some of the Alling s had been disputing his settlement authority.
The Robertso n s 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 Alling s , 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 Alling s ’ 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 Alling s and the Alling s w ere 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 Alling s ’ 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.

2 Rule 80(d) states: “ No agreement or consent between parties or attorneys in any matt er 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 (199 0).

¶8 The Robertso n s , 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.”
Th e 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 Robertson s further assert the Alling s failed to identify any facts in disput e and never requested the trial court to
take evidence. But the Alling s 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

3 At 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 w as one granting summary judgment , despite language in the court’s ruling to the contrary. See John Munic Enter s. , 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 Alling s ’ atto rney’s authority to extend the time for the
Robertson s 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 hearin g 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 Alling s ’ assent to the contract is not in writing, the require ments of Rule 80(d) were not met, and the agreement is unenforceable as a matter of law. S ee Canyon Contracting , 172 Ariz. at 392

- 93, 837 P.2d at 753

- 54. This conclusion requires reversing the judgment in favor of the Robertson s on that
issue and not a r emand for proceedings on the issue of the Alling s ’ counsel’s authority. We explain these conclusions below, analyzing
the issue of the Alling s ’ attorney’s authority within the context of Rule 80(d).

Settlement Authority and Rule 80(d)

¶11 The Alling s first ar gue 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 Alling s also argue that because the requirements of Rule 80(d) were not met, the settlement agre ement is unenforceable as a matter of law, and the court erred in finding the rule inapplicable. The Robertson s contend
that the Alling s ’ attorney had either actual or apparent authority, and that neither the existence nor terms of the agreement are in
di spute, 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
C ontracting , 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 fi rst 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 author ity 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 o f 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 enforcin g 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

4 Although 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 in clude 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 furthe r 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 Alling s ha ve 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.2 d 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

5 Because Rule 80(d) is contained in the Arizona Rules of Civil
Pr ocedure, 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 sco pe 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 authorit y 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 princ ipal 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 (M ich. 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 clie nts 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. T he 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 theROBERTSON, 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 aft er 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 t he 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
i ssue inappropriate and reversed and remanded for further proceedings. Id. at 393 , 837 P.2d at 754

. Actual Authority in this Case

¶21 The Alling s ’ and their counsel appeared together at the
settlement conference. No settlement was reached. Some of the Alling s 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 kn ow 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 Alling s ’ counsel had no act ual 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 Robertson s argue, however, this notice was
ineffective to terminate the Alling s ’ counsel’s actual authority
because the Alling s ’ counsel did not read the e

- mail . The argumentROBERTSON, ET AL. v. ALLING, ET AL. Opinion of the Court

11 is without merit, and none of the authorities the Robertson s cite supports the proposition that an attorney who has received a client
communication but does n ot 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); I d. § 125 (conditions under which apparent authority ends as to third parties); Restatement (Second) of
Contracts § 154 (1981) (hereinafter “Contracts”) (cir cumstances 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 Robertson s also appear to argue that even if some
of the Alling s effectively revoked their counsel’s authority, the remaining Alling s were bound by the settlement. But

, as the Allings pointed out at oral argument, although the other clients did not explicit l y revoke their attorney ’ s authority, they did n ot extend it
either. And the Robertson s offer no authority for the proposition
that where a n 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 appea l.”).

¶24 The Robertson s 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 c ounter

- offer
that the Alling s accepted through silence. But they stipulated at oralROBERTSON, 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 Robertson s ’ argument that even if the offer expired, the Robertson s ’ later acceptance constituted

a counter

- offer that the Alling s accepted through silence. As the trial court correctly concluded at the hearing, the original offer lapsed, the Alling s ’ counsel re

- offered it, and the Robertson s accepted the “new” offer. Because the Robertson s ’ acceptance was in response to the new of fer, their acceptance was not a counter

- offer after a lapsed offer. Nor does this factual situation suggest that the Alling s 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) (wher e offeree takes benefit of services under circumstances indicating compensation expected, offeree can accept offer by silence). Accordingly, the authority the Robertson s cite for their argument on manifestation of assent to a counter

- offer through
silence is inapposite.

Apparent Authority in this Case

¶26 The Robertson s additionally argue the trial court correctly concluded the Alling s ’ counsel had apparent authority,
and absent notice from the Alling s to the Robertson s of the revocation, the Alling s 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 Alling s , 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 Alling s and their counsel attended the settlement conference together, as in Canyon Contracting , and reasonable minds could differ on the effect
of the Alling s ’ presence there. The record does no t show whether
the Alling s ’ counsel conducted the negotiations for his clients or they participated directly with the mediator. Indeed, the
Robertson s ’ insistence that the Alling s actually attend the conference in person could indicate the Robertson s did not think the Alling s ’ counsel had unlimited, or any, settlement authority before the conference, and the Robertson s do not explain what happened during the conference that changed their understanding of the Alling s ’ counsel’s authority.

¶28 T he parties’ mut ual agreement, albeit at the Robertson s ’ suggestion, to place a forty

- eight hour window on accepting the
offer further supports that inference . Once that time period lapsed, the Alling s were no longer present, and the settlement conference was over, one could reasonably conclude that some new
manifestation from the Alling s would be required before the Alling s ’ 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 exis t regarding the Alling s ’ counsel’s authority. The Alling s w ere present at the settlement conference and although the record does not indicate
whether their counsel or the Alling s negotiated with the mediator,
the Alling s ultimately allowed their counsel t o 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 Alling s had cloaked their counsel with the apparent authori ty to re

- offer, just days later, the same offer from the settlement conference, and that the Robertson sROBERTSON, ET AL. v. ALLING, ET AL. Opinion of the Court

14 reasonably relied on the Alling s ’ 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 wh o 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 pu blicly 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 fro m 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 accept ance of the initial offer, the apparent need to secure the Alling s ’ physical presence at the settlement conference to ensure the Alling s ’

cou nsel’s authority, and the lack of any further manifestations from
the Alling s to the Robertson s after the settlement conference, we cannot say as a matter of law that the Alling s ’ 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 Alling s ’ attorney’s authority,
and Rule 80(d) applies. See Canyon Contrac ting , 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 theROBERTSON, ET AL. v. ALLING, ET AL. Opinion of the Court

15 attorney’s settlement authority was subject to a genuine dispute of
materia l 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 . T his 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 Alling s ’ counsel manifested his
assent, the Alling s ’ 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 wi th the requirements of Rule 80(d).

¶33 The Robertson s 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 Hay s , 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 manifestatio n of assent from the principal. Id. at 393, 837 P.2d at 754

. Because we have con c luded the Alling s ’ attorney’s authority was in dispute, Hays does not support the Robertson s ’ 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 offerROBERTSON, ET AL. v. ALLING, ET AL. 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 au thority beyond that authorized by his client. Id. ¶ 16 & n.3

. Estoppel

¶35 The Robertson s also argue that principles of estoppel support enforcing the settlement agreement against the Alling s 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, 45 5

- 5 6, 652 P.2d 507, 52 8

- 2 9 (1982)

.
¶36 Equitable estoppel is an independent, common law doctrine and thus not controlled by the enforceability of the settlement agreement or the require ments of Rule 80(d)

. See St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co. , 154 Ariz. 307, 31 7

, 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 h is 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 Alling s ’ counsel had apparent auth ority. But because we have concluded based on the record before us that a genuine dispute of fact exists concerning the Alling s ’ counsel’s apparent authority, we also must conclude the court abused its discretion in finding that equitable estoppel appli ed . We cannot say as a matter of law that the Alling s manifested apparent authority in their counsel beyond the offer he extended at the settlement
conference. The Alling s may not have known the Robertson s w ere relying on the Alling s ’ counsel having contin uing settlement authority or that they were under an obligation to take reasonableROBERTSON, ET AL. v. ALLING, ET AL. Opinion of the Court

17 steps to notify the Robertson s to the contrary. The Robertson s ’ argument therefore must fail on appeal. To the extent the
Robertson s rel y on Lawyers § 27 cmt. b for the pr oposition that the Alling s are estopped from challenging the settlement because of
their delay in making such notification

, t hat section still first requires a finding that the Alling s had cloaked their attorney with apparent authority, and so this argumen t 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 concern ing 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, b ecause the Robertson s w ere unsuccessf ul 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)

.