Mansker v. Oak Farms Dairy ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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No. 05-10082
Summary Calendar
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VALENCIA MANSKER,
Plaintiff-Appellant/
Cross-Appellee,
v.
OAK FARMS DAIRY,
Defendant-Appellee/
Cross-Appellant.
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Appeals from the United States District Court
For the Northern District of Texas
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellant Valencia Mansker appeals the district
court’s order granting the motion of Defendant-Appellee Oak Farms
Dairy to enforce a settlement agreement. Because we find no
error in the district court’s order, we affirm.
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I.
In 2003, Mansker filed a claim alleging sex discrimination
against Oak Farms. On September 1, 2004, during a break in
Mansker’s deposition, Oak Farm’s counsel, Jennifer Youpa and
Jason Dugas, approached Mansker’s counsel, Richard Howard, to
discuss the possibility of settling the lawsuit. Although
Mansker was present in Howard’s offices, where the deposition and
negotiations took place, she did not sit in on the negotiations
themselves. Counsel for both sides negotiated for several hours,
eventually reaching an apparent agreement. Howard later
testified that he was authorized to negotiate and enter a
settlement on Mansker’s behalf. Counsel for both sides agreed
that Dugas would memorialize the terms of the agreement and
forward the draft to Howard.
On September 13, 2004, two weeks after the conclusion of
negotiations and apparent agreement on the terms of the
settlement, Howard notified Dugas that Mansker had experienced,
in his words, “a change of heart” regarding the settlement. In
the intervening two weeks between the negotiations and Howard’s
notification to Dugas, Mansker sent a letter to Howard indicating
that “the [agreed confidential settlement amount] that you all
were talking about was unacceptable.” Mansker now argues that
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Howard had not kept her apprised of the negotiations, that she
had not authorized him to settle for a specific amount, and that
she was not aware that a settlement had even been reached.
Following Howard’s notification to Dugas, Oak Farms filed
its Motion to Enforce the settlement agreement, and asked that
the court award it attorneys’ fees incurred in preparing the
motion. The court held an evidentiary hearing and heard
testimony from both parties and counsel. The court heard first
from Youpa, Dugas, and Earl Jones, III, the Vice President of Oak
Farm’s legal department. The court then heard testimony from
Mansker, who was first examined by Youpa and allowed an
opportunity to tell her version of the events, and then cross-
examined by Youpa. Following Mansker’s testimony, the court
sought testimony from Howard. Recognizing the potential
conflict, the court explained the difficulty to Mansker, and
requested Mansker’s consent to Howard’s testimony. Mansker
agreed. After Howard’s testimony, the court allowed Mansker an
additional opportunity to testify.
Based on its assessment of the evidence and the credibility
of the witnesses, the district concluded that Howard had been
authorized to negotiate and enter a settlement agreement, and
that Mansker had initially agreed to the settlement. The court
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therefore granted Oak Farm’s motion to enforce the settlement
agreement, but denied its request for attorneys’ fees.
II.
On appeal, Mansker does not challenge, at least not
directly, the district court’s factual conclusion that she
authorized Howard to negotiate and enter the settlement
agreement. Instead, Mansker argues that she was denied due
process because (1) she was not given the opportunity to obtain
new counsel before Howard testified at the evidentiary hearing,
and (2) she was not given an opportunity to cross-examine Howard
after he testified.2
The record fails to disclose that Mansker ever raised the
issue of Howard’s disqualification or desire for new counsel at
any time in the district court, nor does it appear that she
objected to the lack of cross-examination of Howard. Indeed, the
district court specifically addressed the potential conflict in
Howard’s testimony, and Mansker assented to Howard taking the
2
Mansker’s briefing on appeal is less than clear. For
example, in addition to the two arguments recounted above,
Mansker also lists as an issue on appeal whether she was
denied due process when the district court examined Howard.
However, we can discern no such argument actually made in her
brief. Although pro se briefs are liberally construed, even
pro se litigants must brief arguments to preserve them. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
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stand. Thus, Mansker has waived both claims. It is well
established that “[t]o avoid being waived, an argument must be
raised to such a degree that the trial court may rule on it.”
Chamberlain v. United States, 401 F.3d 335, 337 n.7 (5th Cir.
2005). “[I]ssues raised for the first time on appeal ‘are not
reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice.’” Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (quoting U.S. v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.
1990)). We are not convinced that in this situation our failure
to consider these claims will result in any “manifest injustice.”
III.
Oak Farms cross-appeals from the district court’s order,
arguing that the court erred in failing to award it its
attorneys’ fees incurred in relation to the motion to enforce the
settlement agreement. The decision of the district court
regarding the award or denial of attorney’s fees shall not be
disturbed absent a clear finding of abuse of discretion. EEOC v.
Tarrant Distrib., Inc., 750 F.2d 1249, 1250 (5th Cir. 1984). We
perceive no such abuse of discretion in this case.
IV.
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Mansker has waived her claims regarding Howard’s testimony
at the evidentiary hearing, and the district court did not abuse
its discretion in denying Oak Farms its attorneys’ fees.
Therefore, the order of the district court is:
AFFIRMED.
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