Friday, November 16, 2012

Dweck v. Nasser case brief

Dweck v. Nasser
                                                              i.      Facts – After engaging in a lengthy dispute with the plaintiff, the defendant suggested to an attorney friend that he just wanted him to settle the matter, but when the attorney accomplished that task, the defendant refused to be bound by the terms of the settlement agreement.
1.      Principal – Nasser
2.      Agent – Shiboleth
3.      Nasser’s Attorney of Record – Heyman
                                                            ii.      An attorney of record in a pending action who agrees to the settlement of a case is presumed to have lawful authority to make such an agreement.
1.      Employment relationship alone does not give attorney authority to settle a case on behalf of client.  Client retains control.
                                                          iii.      Three Sources of Agency Relationship
1.      Actual Authority – Expressly granted authority either orally or in writing.
2.      Implied AuthorityDerivation of actual authority and often means “actual authority either (1) to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner in which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.”
a.       Authority that agent reasonably believes he has as a result of the principal’s actions.
b.      May be proved by evidence of acquiescence of principal with knowledge of the agent’s acts, and such knowledge and acquiescence may be shown by evidence of the agent’s course of dealing for so long a period of time that acquiescence may be assumed.
3.      Apparent Authority – “Such power as a principal holds his agent out as possessing or permits him to exercise under such circumstances as to preclude a denial of its existence.”
a.       When the principal permits the agent to do something that would allow the principal to be seen as holding the agent out as his agent, then the agent has apparent authority.
b.      Depends on the perceptions of third parties.
c.       Rest. (3d) of Agency § 2.03 – “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.”

                                                          iv.      Shiboleth had actual and implied authority.
1.      Actual Authority
a.       Nasser said, “Do what you want;” “You can talk in my name;” etc.  These are powerful grants of broad, actual authority.  Important touchstones.
2.      Implied Authority
a.       Context suggests implied authority.  Look at the history of the relationship between Nasser and Shiboleth.
3.      Apparent Authority
a.       Nasser said to the other parties that he would not read the settlement agreement and that he would sign it if Shiboleth recommended it.

Interested in learning how to get the top grades in your law school classes? Want to learn how to study smarter than your competition? Interested in transferring to a high ranked school?

No comments:

Post a Comment

The Evolution of Legal Marketing: From Billboards to Digital Leads Over the last couple of decades, the face of legal marketing has changed a l...