Opinion
No. 23186-1-III
Filed: August 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 03-2-00453-4. Judgment or order under review. Date filed: 06/23/2004. Judge signing: Hon. Vic L. VanderSchoor.
Counsel for Petitioner(s), Mark Preston Scheer, Scheer Zehnder LLP, 720 Olive Way Ste 1605, Seattle, WA 98101-1895.
Vicky Strada, Scheer Zehnder, 720 Olive Way Ste 1605, Seattle, WA 98101-1895.
Counsel for Respondent(s), George Fearing, Attorney at Law, 2415 W Falls Ave, Kennewick, WA 99336-3068.
Believing the parties settled their faulty construction/product liability dispute, BB Quality Homes, LLC filed a motion to enforce the parties' settlement. The court denied its motion because the parties decided to continue negotiations. On appeal, BB contends the settlement was binding. We agree, and reverse.
FACTS
Lawana Nyman purchased a condominium built by BB in the late 1990s. During the first year, she allegedly experienced various problems with the Heating/Ventilation/Air Conditioning (HVAC) system. Ms. Nyman complained to both BB and Dayco, Inc., the installer of the HVAC system and eventually sued both companies.
In early 2004, Ms. Nyman sought $15,000 to settle the matter with BB. On March 10, 2004, BB's attorney e-mailed Ms. Nyman's attorney, offering $15,000 and requesting confirmation of the settlement. On the same day, Ms. Nyman's attorney replied, by e-mail, stating:
The case is settled at $15,000. I will call the court administrator to cancel the trial. Lawana Nyman will sign a release and I will sign a stipulation and order of dismissal upon the sending of the check for $15,000, with the documents.
Clerk's Papers (CP) at 19.
The parties then negotiated the release language of the settlement. At Ms. Nyman's request, BB agreed to take out certain objectionable language. On March 30, Ms. Nyman's attorney notified BB's attorney that Ms. Nyman would sign the release agreement prepared by BB and modified by Ms. Nyman upon the receipt of the $15,000. On April 6, Ms. Nyman's attorney notified BB's attorney that if the check was sent immediately, he would strike a motion to confirm the settlement he previously filed. On April 7, BB sent the check and the motion to confirm was stricken.
Ms. Nyman did not return the release agreement, nor did she cash the check. BB attempted to contact Ms. Nyman's attorney, to no avail. On May 5, Ms. Nyman returned the $15,000 check because she felt the agreement process had 'gone on too long.' Report of Proceedings (RP) at 4. On May 10, BB filed a motion to enforce the settlement. The court denied its request, finding, 'there was [a] $15,000 settlement on March 10th then the parties decided to negotiate further.' RP at 6. This court granted discretionary review.
ANALYSIS
The issue is whether the trial court erred in denying BB's motion to enforce the settlement.
We review the decision to enforce a settlement agreement de novo, as this court would a summary judgment. Lavigne v. Green, 106 Wn. App. 12, 16, 23 P.3d 515 (2001). The party moving to enforce a settlement agreement has the burden of proving no genuine dispute exists over the existence and material terms of the agreement. Brinkerhoff v. Campbell, 99 Wn. App. 692, 696-97, 994 P.2d 911 (2000).
CR 2A and RCW 2.44.010 guide us. CR 2A provides:
No agreement or consent between parties or attorneys in respect to the proceedings in a cause, the purport of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.
RCW 2.44.010(1) provides an attorney has authority:
To bind his client in any of the proceedings in an action or special proceeding by his agreement duly made, or entered upon the minutes of the court; but the court shall disregard all agreements and stipulations in relation to the conduct of, or any of the proceedings in, an action or special proceeding unless such agreement or stipulation be made in open court, or in presence of the clerk, and entered in the minutes by him, or signed by the party against whom the same is alleged, or his attorney.
Here, the parties did not agree on the record, and although an exchange of e-mail and correspondence exists, no settlement agreement was formally signed by Ms. Nyman or her attorney. Thus, our focus is whether its purport is undisputed.
For the purport of an oral agreement to be undisputed, the material terms must be undisputed. Lavigne, 106 Wn. App. at 19. Remorse, second thoughts, and unexpressed expectations do not warrant setting aside an otherwise binding agreement. Id. In the absence of a written contract, a binding agreement exists only where the subject matter has been agreed upon, the terms are all stated in the agreement, and the parties intended a binding agreement prior to the time of signing and delivery of a formal contract. Morris v. Maks, 69 Wn. App. 865, 869, 850 P.2d 1357 (1993).
Here, the record shows the parties agreed to settle their dispute for $15,000 on March 10, 2004. Afterwards, BB forwarded the settlement and release agreement to Ms. Nyman. When Ms. Nyman objected to some of the terms in the agreement, BB changed the terms in Ms. Nyman's favor. Her attorney then stated in his March 30 e-mail to BB's attorney that Ms. Nyman would sign the release agreement prepared by BB and modified by Ms. Nyman upon the receipt of the $15,000. On April 6, Ms. Nyman's attorney notified BB's attorney that if the check was sent immediately he would strike Ms. Nyman's motion to confirm the settlement. The next day, the check was sent and Ms. Nyman's counsel struck the motion, evidencing the parties had reached an agreement. Based on the undisputed facts, the parties formed a binding agreement including all material terms under the standard set forth in Morris.
As this court previously noted in Lavigne, "the compromise of litigation is to be encouraged." Lavigne, 106 Wn. App. at 19 (quoting In re Marriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d 706 (1993)). Ms. Nyman's apparent second thoughts are insufficient to evade her binding agreement.
Based on the above, the trial court erred in denying BB's motion to enforce the settlement.
Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for pubic record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., Concur.