* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Judith C. Herrera, United States Dist rict Judge for the District of New Mexico, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 21, 2005

Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ALMA ROSE ROJO,

Plaintiff-CounterDefendant-Appellant,

v. IBP, INC., Defendant-CounterClaimant-Appellee. No. 03-3300 (D.C. No. 02-CV-4112-JAR) (District of Kansas)

ORDER AND JUDGMENT *

Before EBEL and PORFILIO , Circuit Judges and HERRERA , District Judge. **

Invoking diversity jurisdiction, Alma Rose Rojo ins tituted this action under Kansas law for wrongful discharge in retaliation fo r her filing a worker’s compensation claim. Her former employer, IBP, Inc. , moved for summary judgment contending Ms. Rojo’s action was barred bya prior settlement-2-

agreement. IBP argued that during the pendency of her worker’s compensation proceeding, Ms. Rojo agreed to compromise both her worker’s compensation claim and her wrongful discharge claim in one settl ement document. That settlement, it alleged, specifically included “all employment-related claims” filed under both federal and state law. The district cou rt agreed, granting the motion for summary judgment on the ground that despite Ms. Rojo’s denial of any intent to settle the discharge claim, her attorney was clo thed with apparent authority to settle all claims against IBP arising from her acci dental injury. In this appeal, Ms. Rojo contends the court erred because her inten t to settle the wrongful discharge claim was a material disputed fact; there fore, the district court should not have granted summary judgement. We agree. Because the parties are fully versed in the facts u nderlying Ms. Rojo’s work-related injury, we confine our review to the m aterial facts before the district

court in the summary judgment record. These facts were d eemed by the court to be “stipulated, uncontroverted or viewed in the lig ht most favorable to plaintiff’s case.” The hearing on the summary judgment motion was held in a telephoned conference at the conclusion of which the court ma de its findings. In particular, the court found Ms. Rojo retained Christoher A. Ran dall “to file and pursue a workmen’s compensation claim against IBP . . . [and he] was not retained to represent her on any other claims against IBP.” In that capacity, Mr. Randall was1 The record of the hearing indicates the $1,816.94 o ffer was based on a 9%

impairment rating by IBP’s medical examiner. IBP o ffered an additional $5,000, which was initially rejected. Just before an indep endent evaluation of her injury was scheduled, Ms. Rojo accepted the offer. The he aring transcript states: “Plaintiff rejected IBP’s offer of $1,816.94 $5,000.” [sic] -3- offered $1,816.94 to settle, but he refused. Mr. R andal then made a counteroffer to settle for $7,000, but that was rejected by IBP. The attorneys ultimately settled on the sum of $6,816.94. 1 On December 5, 2001, Ms. Rojo accepted the compromi se, and, on the following day, IBP counsel faxed a “settlement shee t” to Mr. Randall and Special Administrative Law Judge James Roth of the Division of Workers’ Compensation of the State of Kansas. The district court found M r. Randall neither showed IBP’s settlement sheet to Ms. Rojo nor did he regis ter any objection to its terms during the week before the settlement hearing befor e Judge Roth. The settlement sheet stated: Compromise : $6,816.94 on a strict compromise of the following i ssues: Respondent proposes to pay, in addition to all medi cal and compensation previously provided, the lump sum of 6 ,816.94 in exchange for Claimant’s full and complete compromis e and settlement of any and all workers compensation claims arising out of Claimant’s employment at IBP, Inc., including, but not limited to, future medical, right to review and modification an d vocational rehabilitation. In addition, Claimant waives, comp romises, and settles any and all employment-related claims again st Respondent, including, but not limited to, wrongful discharge, retaliatory2 Judge Roth mentioned the settlement sheet only once during the hearing

and then referred to it as a “work sheet.” -4- discharge, discrimination, grievance proceedings, a nd any claim under federal law . . . . Claimant further waives, compromises, and settles any claim against Respondent under state law, including, but not limited to, the Kansas Wage Payment Law, Kansas Act Against Discrimination, and the Kansas Age Discrimination i n Employment Act. As with the hearing on the motion for summary judgm ent, the worker’s compensation settlement hearing before Judge Roth w as also conducted by telephone. Although Ms. Rojo’s counsel, Mr. Randal l, was present before Judge Roth, his client was not. She was in the office of IBP’s counsel, Mr. Wendel Wurst, in Garden City, Kansas. During the course of the conference call, Judge Rot h described the proposed settlement as a lump sum “intended to reso lve all issues” and act as a full and final release. The district court found J udge Roth asked both attorneys whether “the parties agree to the facts on the work sheet” and whether it could be incorporated into the record. 2 They agreed to do so. When asked if Mr. Randall explained “all the rights you have to give up if you accept this settlement,” Ms. Rojo answered, “no .” Judge Roth then explained Ms. Rojo had a right to turn down the settlement, m eaning that a judge would hear all of the evidence of her claim and possibly award more money or less money, “[b]ut he would keep open all benefits underthe Worker Compensation-5-

Act.” Ms. Rojo asked, “What do you mean keep open the medical?” Judge Roth explained that meant Ms. Rojo could keep open her r ight to get the order changed and increased in the future by convincing the courther condition had worsened. Ms. Rojo stated she understood. Lastly, the district court found the “other terms o f the settlement sheet were not referenced by Judge Roth or discussed by plaint iff or any counsel during the hearing.” Nonetheless, the district court conclude d Ms. Rojo agreed to these statements, and Judge Roth approved the settlement, telling her “it will act as a redemption [sic] of this order and the respondent w ill be released and discharged from any further liability.” Mr. Wurst then tender ed the check to Ms. Rojo, who stated on the record she accepted it as full and fi nal payment. Left unstated by the district court in its findings but, equally uncontested, are the facts that the settlement agreement was or al, and no settlement document was signed by either counsel or Ms. Rojo. Similarl y uncontested is that Mr. Randall neither previously showed nor explained the settlement sheet to Ms. Rojo, which, as previously indicated, was refer red to once in the hearing as “the worksheet. ” Finally, it is uncontested neither the lawyers nor Judge Roth mentioned to Ms. Rojo, in either specific or genera l terms, the inclusion in the settlement agreement of the waiver of “all employee -related claims.” Thus, there is nothing in the record from which it could be inf erred that Ms. Rojo was aware-6-

of the inclusion of those terms, their meaning, or their significance. Likewise, there is no evidentiary support for an inference Mr . Randall believed he was to discuss those terms with Mr. Wurst. Although the district court noted Judge Roth’s statement the settlement sheet was “incorpor ated into the record” at the hearing, it was neither read nor were its terms ref erred to at any time. Asked if she understood Judge Roth’s explanation “this $6,81 6.94 is the only money you are ever going to get from workmen’s compensation b ecause of this workers’ compensation injury,” Ms. Rojo replied, “Yes, but h e never told me that I was going to lose medical like if something else happen s in the future.” Judge Roth explained if she settled, “medical benefits stop to day,” but medical expenses incurred before the settlement would be paid. With that assurance, Ms. Roth stated she realized her acceptance of the settlemen t would close the case forever, and “it can never be reopened or reviewed or change d again.” With these facts, the district court considered whether the agreement between counsel is enforceable and acts as a defens e to a subsequent civil action. Recognizing that Kansas contract law governed that question, the court concluded the oral agreement incorporating the settlement she et was approved in an open hearing before Judge Roth and both counsel. That M s. Rojo did not know the settlement agreement released all claims did not al ter this conclusion. “Plaintiff is bound by her attorney’s conduct in accepting the terms of the settlement sheet.”3 Ms. Rojo was injured on March 23, 2000, and terminated on July 14, 2000.

During the interval between her injury and the sett lement of her worker’s compensation claim on December 13, 2001, Ms. Rojo g ave birth to twins. -7- According to the court, that conduct included Mr. R andall’s not objecting to the settlement sheet during the seven days afterits receipt and his consenting to its terms at the hearing before Judge Roth. Althou gh Mr. Randall stated in an affidavit before the district court he did not inte nd to release all employment claims, the court noted, “but he did agree to such terms in open court.” The court also found it notable that the settlement occurred almost 18 months after Ms. Rojo was terminated. “Surely plaintiff had knowledge orsuspicion at the time of the settlement that there were facts supporting a wrong ful or retaliatory discharge claim.” 3 Additionally, the court stated, “counsel’s acquie scence to the release of those claims was spelled out in the settlement shee t and was a knowing and intentional acquiescence.” Thus, “counsel had actu al authority to negotiate and settle her workmen’s comp claim. And plaintiff’s p resence at the hearing in which counsel consented to the oral agreement means that counsel had actual authority to do that as well.” Further, the court concluded, even if counsel did not have actual authority to go beyond the worker’s compensation claim to settle all employment-related claims, counsel had apparent aut hority to do so, Ms. Rojo’s silence operating to “cloak counsel with her authority.” Thus, IBP counsel reasonably believed the settlement released all cla ims, the court concluded.-8-

When applying the de novo standard of review to the district court’s grant of summary judgment, we “view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Elliott Indus. Ltd. P’ship v. BP America , 407 F.3d 1091, 1107 (10th Cir. 2005), citing Martin v. Kansas , 190 F.3d 1120, 1129 (10th Cir. 1999). Furthermor e, in that review, we apply the same legal standard used by the district court. Pastran v. K-Mart Corp. , 210 F.3d 1201, 1204 (10th Cir. 2000), citing Jones v. Denver Post Corp. , 203 F.3d 748, 751 (10th Cir. 2000). The issue, then, turns on whether the record includ es uncontroverted facts Ms. Rojo’s conduct during the settlement hearing cl oaked her counsel with apparent authority to settle, not only her workers’ compensation claim, but also all other employment-related claims, thus, barring this action. We look to Kansas law for the answer. In Kansas, “[w]hat constitutes agency, and whether there is any competent evidence reasonably tending to prove such a relatio nship is a question of law.” Brown v. Wichita State Univ., 540 P.2d 66, 74 (Kan. 1975) (citations omitted). That law begins with the proposition that the mere employment of an attorney confers no authority to settle the client’s claim. Hayes v. Eagle-Picher Indus.,
Inc. , 513 F. 2d 892, 893 (10th Cir. 1975); Miotk v. Rudy , 605 P.2d 587, 591 (Kan. Ct. App. 1980). While a client may be bound by herattorney’s appearance,-9-

admissions, and other actions on her behalf, “[t]hat rule is limited, however, to control over procedural matters incident to litigat ion.” Reimer v. Davis , 580 P.2d 81, 85 (Kan. 1978). Unless ceded, the client contr ols the subject matter of the litigation. Id. (citation omitted). “An attorney has no authority to compromise or settle his client’s claim without his client’s appr oval.” Id. (citations omitted). Kansas law “recognizes two distinct types of agency - one actual, and the other, ostensible or apparent.” Brown, 540 P.2d at 74 (citations omitted). The authority of an actual agent may be express “if the principal has delegated authority to the agent by words which expressly aut horize the agent to do a delegable act.” Mohr v. State Bank of Stanley , 734 P.2d 1071, 1075 (Kan. 1987), quoting Gardner v. Rensmeyer , 557 P.2d 1258, 1261 (Kan. 1976). An agency is implied “if it appears from the statements and cond uct of the parties and other relevant circumstances that the intention was to cl othe the agent with such an appearance of authority that when the agency was ex ercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal.” Id. On the question of implied agency, “it is the mani festation of the alleged principal and agent as between themselves t hat is decisive, and not the appearance to a third party or what the third party should have known. An agency will not be inferred because a third person assumed that it existed

. ” Id ., quoting
Brown , 540 P.2d at 75, quoting 2A C.J.S., Agency§ 52. (emphasis added).-10-

However, the liability of the principal for the act s and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from expr ess authority, or otherwise actually conferred by implication from th e acts and conduct of the principal. All such acts and contra cts of the agent as are within the apparent scope of the authority conf erred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the princ ipal. Apparent authority . . . is that which, though not actually granted, the principal knowinglypermits the agent to exercise or which [s]he holds him out as possessing. Accordingly, an apparent agent is o ne who, with or without authority, reasonably appears to third pers ons to be authorized to act as the agent of another. Miotk, 605 P.2d at 591 (citations omitted) (emphasis add ed). “Apparent agency is based on intentional actions or words of the principal toward third parties which reasonably induce or permit third parties to believ e that an agency relationship exists.” Mohr, 734 P.2d at 1075 (emphasis added). The record confirms Mr. Randall’s actual authority to negotiate a settlement of the worker’s compensation claim. It is less clear whether that express agency presumes Ms. Rojo’s knowingly permitting that settlement to embrace all of her employment-related claims. Miotk, 605 P.2d at 591. We must then look at Ms. Rojo’s “intentional action s or words” toward IBP counsel Wurst which could reasonably permit him to believe Mr. Randall had apparent authority to settle both Ms. Rojo’s worker ’s compensation claim and all employment-related claims. Those facts, taken in t he light most favorable to Ms. Rojo, are ambiguous at best, and absent at worst. Instead, filling the interstice-11-

between the uncontroverted factual finding Ms. Rojo hired her attorney solely “to file and pursue a workmen’s compensation claim agai nst IBP. . . [and] . . . [not] to represent her on any other claims against IBP,” and the court’s conclusion Ms. Rojo’s “silence [when told that this settlement was settlement of all future liability] cloaked counsel with her authority” are material facts which defy summary judgment and should be submitted to a jury. On the present state of the record, it is evident M s. Rojo never saw the settlement sheet containing the additional terms an d never discussed those terms with her attorney. During the worker’s compensatio n hearing, Ms. Rojo focused her attention solely on the payment of medical bill s generated by her injury. When Judge Roth asked Ms. Rojo if counsel explained “the rights you have to give up if you accept this settlement, Ms. Rojo res ponded,” no,” prompting Judge Roth to state, “I’ll take it one at a time,” and to explain the medical benefits she would relinquish by settling the worker’s compensat ion claim. Addressing solely “the medical,” Judge Roth then as ked, “Do you need to talk to your attorney in private?” Ms. Rojo respon ded, “no.” That statement taken in the light most favorable to Ms. Rojo can be unde rstood to communicate Ms. Rojo did not need to confer with Mr. Randall be cause he did what she understood she wanted him to do, that is, settle he r worker’s compensation claim and assure payment of all of her medical expenses up to the time of that-12-

settlement, as confirmed by Judge Roth. That respo nse, circumscribed by allof the dialogue of the telephone conference hearing pr oduces the alternative inference that her answer “no” meant it never even occurred to Ms. Rojo she needed to talk to Mr. Randall because the terms of the global settlement were neither presented nor explained before or during th e hearing. Under either reading, her response falls short of the “intention al actions or words” that the principal must convey toward a third party to induc e reasonable reliance. Moreover, her denial of her intent to settle any cl aim other than her worker’s compensation claim directly controverts any inferen ce, especially if taken from her silence , that she did. While that issue could be resolved at trial, as a matter of law her denial controverts any inference Mr. Wurst’s re liance was reasonable. We therefore REVERSE the court’s order granting summary judgment and
REMAND the action for further proceedings.

Entered for the Court

John C. Porfilio Senior Circuit Judge03-3300, Rojo v. IBP, Inc.

EBEL, Circuit Judge, dissenting
I respectfully dissent from the Order and Judgment in this case. It seems to me that the district court was correct in granting summary judgment to IBP. Looking at the facts as they appeared to Wurst, the following is undisputed: Rojo authorized her attorney to negotiate a settlem ent with Wurst. Rojo appeared, by telephone, at the settlement hearing and acknowl edged understanding and hearing the entire proceeding. Rojo did not questio n her attorney’s agreement to the terms of the settlement sheet or his authorizat ion for the sheet to be included in the court record as part of the settlement. At the hearing, Rojo heard the judge refer to: a “lump sum [settlement], that’s intended to resolve all issues and act as a full and final release;” to a “lump sum . . . that is to end all issues of liability;” and to the settlement payment “as a redemption of [ the settlement] order and [the defendant’s] will be released and discharged from any further liability.” Rojo declined, for whatever subjective reasons, to confe r privately with her attorney. And, when the judge asked Rojo whether she accepted the settlement, which would close the case forever, Rojo responded to “[g ]o ahead and do it” and “[y]eah, go ahead and close it.” Finally, when Wur st asked if Rojo wold accepted the settlement check “in full and final settlement of all claims that [she] had against IBP arising out of the accidental injury of March 23 of the year 2000,” Rojo endorsed the check. In my judgment, these fac ts demonstrate as a matter of1 The majority references the fact that Rojo never saw the settlement sheet, but

that does not seem relevant to me because there is no evidence in this record to suggest either that Wurst knew or did not know thatfact. We need to examine the facts from Wurst’s point of view for purposes of ou r apparent authority analysis. Also, I respectfully disagree with the majority’s c onclusion that “[Rojo’s] denial of her intent to settle any claim other than her wo rker’s compensation claim directly controverts any inference . . . that she d id.” Rojo’s denial of an intent to settle was not made until long after the settlementagreement was solemnized, and therefore it seems irrelevant to our apparent autho rity analysis, which speaks as of the time the settlement agreement was entered. In addition, Rojo’s subjective intent is not relevant to whether her actions and w ords caused Wurst reasonably to believe that Rojo’s attorney had apparent authority to settle all her employmentrelated claims. -2- law that Rojo cloaked her attorney with apparent au thority to bind her to the settlement with the additional terms and that the d istrict court summary judgment in this case was therefore proper. 1