United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendants' Motion to
Enforce Settlement Agreement [Doc. 178], filed on October 5,
2017. Defendants argue that they should be able to rely on
the representation of Plaintiff's former attorney, Mr.
Lyle, that she had agreed to settle the case for $25, 000.
Plaintiff denies that she ever agreed to settle the case for
$25, 000. The Court held an evidentiary hearing on April 5,
2018. Having considered the evidence and argument presented
at the hearing, along with the relevant portions of the
record and the applicable law, the Court finds that
Defendants fail to meet their burden to show that Plaintiff
clearly and unequivocally authorized Mr. Lyle to settle the
case for $25, 000. Thus, the motion will be denied. Moreover,
Plaintiff, who has been appointed personal representative of
the wrongful death estate of Robert Montes, may not act as
the attorney for the estate. She must find an attorney within
60 days. If she fails to find an attorney, the case will
likely be dismissed.
initiated this lawsuit on January 11, 2013. [Doc. 1]. She
alleged that the Defendant police officers wrongfully shot
and killed her nephew, Robert Montes, during a traffic stop.
She asserted tort claims, violations of Montes's
constitutional rights, and supervisory liability of Defendant
City of Las Cruces. Id.
argued that Robert Montes shot at the officers first, which
entitled them to qualified immunity. Plaintiff responded with
the testimony of witnesses who said that the officers shot
Montes while he was unarmed, handcuffed, and fleeing. The
Honorable Judith C. Herrera, United States District Judge,
denied qualified immunity on January 9, 2015, because a
reasonable jury could rely on Plaintiff's witnesses.
[Doc. 34]. And if Plaintiff's witnesses' version were
accepted, the officers would not be entitled to qualified
appealed on the ground that the witness statements were
blatantly contradicted by audio recordings, a videotape, and
the physical evidence. The Tenth Circuit found that the
evidence “strongly support[ed D]efendants'
position[, but the court could not] say that the evidence
blatantly contradicted Plaintiff's witnesses.”
[Doc. 50-1] at 4. Thus, the appeal was dismissed on September
2, 2015. Id. at 4.
amended her complaint on January 7, 2016. [Doc. 71]. Judge
Herrera appointed Plaintiff as personal representative of the
wrongful death estate of Robert Montes pursuant to the New
Mexico Wrongful Death Act, NMSA 1978, § 41-2-3, on June
7, 2016. [Doc. 110]. Several other pretrial motions were
filed and decided, including one regarding whether Plaintiff
had sufficiently demanded a jury trial. Judge Herrera set a
bench trial for November of 2016. [Doc. 136]. Plaintiff
petitioned the Tenth Circuit Court of Appeals for a writ of
mandamus ordering Judge Herrera to set the trial by jury.
See [Doc. 149] at 1-2. The Tenth Circuit denied
Plaintiff's petition for a writ of mandamus on November
10, 2016. [Doc. 157].
thereafter, on November 17, 2016, Judge Herrera and the
parties consented to my presiding over the case for trial and
final judgment. [Doc. 159]. I set a bench trial for February
27, 2017, but it was vacated because Plaintiff was undergoing
treatment for serious medical issues. [Docs. 162, 164]. The
bench trial was reset for November 13, 2017. [Doc. 169].
on August 18, 2017, defense counsel notified chambers staff
that the case had been settled. On September 6, 2017,
Plaintiff's counsel, Mr. Lyle, moved to withdraw. [Doc.
173]. Mr. Lyle represented that Plaintiff had accepted
Defendants' settlement offer of $25, 000 but later
reneged when her sister (the mother of Robert Montes)
objected. Id. at 2. He further represented that he
explained to Ms. Cordero that she could not change her mind,
but she still refused to sign the settlement agreement.
Id. Plaintiff did not oppose Mr. Lyle's
withdrawal, and Judge Wormuth granted Mr. Lyle leave to
withdraw on September 27, 2017. [Doc. 176]. The next day, Mr.
Lyle filed his charging lien in the amount of $24, 210.39.
[Doc. 177] at 3.
filed the instant Motion to Enforce the Settlement on October
5, 2017. [Doc. 178]. The November trial setting was vacated.
[Doc. 179]. Plaintiff did not respond to the Motion to
Enforce, and the Court ordered to the parties to show cause
why the motion should not be granted and why Mr. Lyle's
charging lien enforced. [Doc. 181]. Plaintiff submitted a
letter, denying that she had ever agreed to settle for $25,
000. [Doc. 182]. Mr. Lyle replied to the letter, representing
that he discussed the settlement with Plaintiff on three
occasions, each time explaining that Defendants would offer
no more than $25, 000. Ultimately, Defendants agreed to
withdraw a contingency to their offer (no longer requiring
Plaintiff to withdraw a certain potion of her complaint), but
they offered no more money. Mr. Lyle represented that he told
Plaintiff that $25, 000, minus the contingency, was the final
offer, and Plaintiff accepted. [Doc. 183] at 1-2.
Court set an in-person evidentiary hearing on the Motion to
Enforce and the Charging Lien for February 22, 2018. [Doc.
184]. Mr. Lyle and defense counsel appeared, but Plaintiff
did not. [Doc. 186]. The hearing proceeded, and I took
evidence and heard argument. Id. Immediately after
the hearing concluded, however, I was notified that, due to
an unexplained glitch in the Court's computer system,
Plaintiff had never received notice of the hearing. See
second evidentiary hearing was held on April 5, 2018. [Doc.
190]. I allowed Mr. Lyle to appear by telephone (because he
was hospitalized in Albuquerque). Plaintiff and defense
counsel appeared in person. Mr. Lyle credibly testified that
Ms. Cordero had authorized the settlement for $25, 000. Ms.
Cordero also credibly testified that she never authorized Mr.
Lyle to settle the case for $25, 000.
do not meet their burden to show that Ms. Cordero
specifically authorized Mr. Lyle to settle the case for $25,
attorney may not settle a client's claim without
specific authorization from the client[, ] and . . .
if there is an issue as to whether there was authorization,
the party seeking enforcement of an alleged settlement
agreement has the burden of establishing
authorization.” Gomez v. Jones-Wilson,
2013-NMCA-007, ¶ 22, 294 P.3d 1269 (emphasis added).