Balwanz v. Precision Communications, Inc. , 54 F. App'x 177 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES GRANT BALWANZ, SR., 
Personal Representative of the
Estate of Charles Grant Balwanz, II,
Plaintiff,
v.
PRECISION COMMUNICATIONS,
INCORPORATED,  No. 02-1238
Defendant & Third Party
Plaintiff-Appellant,
v.
SHANE DAVIS & ASSOCIATES,
Third Party Defendant-
Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CA-99-1189-4-23BF)
Argued: December 4, 2002
Decided: January 13, 2003
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Niemeyer wrote
a dissenting opinion.
2 BALWANZ v. PRECISION COMMUNICATIONS
COUNSEL
ARGUED: Gray Thomas Culbreath, COLLINS & LACY, P.C.,
Columbia, South Carolina, for Appellant. Jon Rene Josey, TURNER,
PADGETT, GRAHAM & LANEY, P.A., Florence, South Carolina,
for Appellee. ON BRIEF: Joel W. Collins, Jr., COLLINS & LACY,
P.C., Columbia, South Carolina, for Appellant. Michael S. Hopewell,
TURNER, PADGETT, GRAHAM & LANEY, P.A., Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal came before us for argument on Appellant Precision
Communications, Inc.’s ("Precision") objection to the district court’s
order enforcing a global settlement agreement among the three parties
to this wrongful death litigation. The original lawsuit arose from an
accident in which Charles Grant Balwanz, II ("decedent") died after
falling 1,100 feet in a disabled man-basket from which he was paint-
ing a broadcast tower’s guy-wires. The broadcast tower’s owner hired
Precision to paint the guy-wires; Precision, in turn, subcontracted the
job to Shane Davis, which in turn subcontracted with decedent. Dece-
dent’s estate and survivors sued Precision, Shane Davis, and a third
party in a wrongful death and survivor’s action. Early in the proceed-
ings, however, Shane Davis and the third party settled with Balwanz,
leaving Precision the only defendant. Precision, however, filed a
third-party complaint for equitable indemnity and negligence to bring
Shane Davis back into the case.
With the district court’s encouragement and assistance, Balwanz,
Precision, and Shane Davis entered into settlement negotiations just
before the start of trial. The district court found that as a result of
BALWANZ v. PRECISION COMMUNICATIONS 3
those negotiations: (1) "counsel for plaintiff advised the court that
plaintiff would accept [the settlement]," District Court’s Order Nunc
Pro Tunc, J.A. at 103, (2) Precision "agreed to front the settlement
and leave open the third-party action until Shane Davis received
approval," id. at 104 (emphasis added), and (3) Shane Davis "secured
the full $100,000 and advised Precision accordingly," id. at 105. On
the basis of these underlying facts the court reached the overarching
conclusion that each of the parties — including Precision and Bal-
wanz — agreed to the global settlement. Precision does not specifi-
cally challenge any of these predicate findings that underlay the
district court’s conclusion that the parties agreed to the global settle-
ment.
Moreover, although at argument counsel for Precision maintained
that Precision did not consent to the settlement agreement at any time,
Precision makes no such unequivocal assertions in its written submis-
sion. There, Precision makes statements only to the following effect:
As evidenced by the record in this case, it is not clear that
a complete agreement had been reached among the parties
to accept Judge Duffy’s recommendation.
Appellant’s Br. at 10 (emphasis added).
Precision argues that the clear error in the district court’s conclu-
sion is borne out by the fact that it and Balwanz allegedly expressed
their disagreement with the proposed settlement. Of course, that Pre-
cision and Balwanz subsequent to the telephone call with the district
court expressed their disagreement with the proposed settlement (if
true), does not establish that the district court erred in its finding that
these two parties previously agreed to the proposed settlement.
Upon review of the parties’ briefs and their oral arguments, and
upon our consideration, it is hereby ordered that the judgment of the
district court is affirmed on the reasoning of that court.
AFFIRMED
NIEMEYER, Circuit Judge, dissenting:
While I recognize that the parties’ communications with the district
court and the other parties to the purported settlement agreement are
4 BALWANZ v. PRECISION COMMUNICATIONS
not fully discernable, I am unable to find any evidence supporting the
conclusion that Precision accepted the settlement agreement as pro-
posed by the court. It is undisputed that Precision itself, as well as its
insurer, agreed and represented to the court that Precision was willing
to pay to the plaintiff the settlement amount proposed by the court.
It is also undisputed, however, that within a couple hours of making
this representation, Precision informed Shane Davis that its intent was
to pay the whole settlement itself and to proceed against Shane Davis
for indemnification. There is also evidence that Precision told the
plaintiff that it had accepted the court-proposed settlement figure but
that it intended to pay the full amount, rather than paying a mere por-
tion of the amount as the court had proposed. The confusion in this
case arises from the fact that when Precision represented to the court
that it intended to pay to plaintiff the court-proposed settlement
amount, the court "assumed that the case was settled as had been rec-
ommended" by the court, i.e., with both Precision and Shane Davis
contributing a portion of the settlement amount to settle both plain-
tiff’s claims against Precision and Precision’s third-party claims
against Shane Davis. Within hours of its communication with the
court, and after having spoken with Shane Davis and the plaintiff,
Precision clarified to the court that its earlier commitment to pay
plaintiff the court-proposed settlement amount was meant only to dis-
pose of plaintiff’s claims against Precision, not Precision’s third-party
claims against Shane Davis. In determining whether Precision mani-
fested assent to the settlement agreement as proposed by the court, we
have only the benefit of affidavits of the attorneys and the district
court’s factfinding on transactions in which it was involved. But even
on the district court’s rendition of what Precision reported to the
court, a factfinder could not, in my judgment, find that Precision
unconditionally accepted the court-proposed settlement agreement
before its subsequent clarification of the limited scope of its agree-
ment only to pay to plaintiff the court-proposed amount.
I would, accordingly, reverse.