Terry v. Nicotra

Full title: Joseph R. Terry, et al. v. Joseph Nicotra, Jr., et al

Court: Superior Court of Delaware, New Castle County

Date published: Jun 30, 2011

C.A. No. 10C-06-225 FSS (Del. Super. Ct. Jun. 30, 2011)

Opinion

C.A. No. 10C-06-225 FSS.

June 30, 2011.

Upon Plaintiffs' Motion to Enforce Settlement — GRANTED.

Charles Snyderman, Esquire, Charles Snyderman, P.A., Wilmington, DE.

Victor F. Battaglia, Esquire, Biggs and Battaglia, Wilmington, DE.

FRED S. SILVERMAN, Judge

Dear Counsel:

After receiving a settlement offer from Defendants' attorney, Plaintiffs' attorney requested more money. When Defendants did not respond, Plaintiffs accepted the original offer. Now, Plaintiffs seek to enforce the settlement agreement, but Defendants claim that the request for more was a rejection and counteroffer. The issue here, therefore, is whether the lawyer's communication was merely a request for more or a rejection and counteroffer.

I.

The parties signed a real estate purchase and sale agreement. Consistent with the agreement, Defendants wrote a $10,000 deposit, escrowed by the real estate agent. Defendants decided to back out of the deal and ask for their deposit because they believed Plaintiffs had withheld information about covenants and restrictions, thereby voiding the contract. Plaintiffs denied that, alleging Defendants defaulted by failing to attend settlement as required. The parties attempted arbitration through the Better Business Bureau, but it was aborted after Defendants claimed more damages than the amount-in-controversy limit. Plaintiffs then filed suit and Defendants counterclaimed.

Defendants offered to settle the litigation for $10,000. Plaintiffs' attorney responded, "I believe that Mr. and Mrs. Terry will do whatever I recommend and so I'm writing to see if you can help me bring this matter to a conclusion." Plaintiffs' attorney requested an additional $1,500. Defendants' attorney replied that he would relay the "counteroffer." After several weeks with no response, Plaintiffs accepted the original offer.

Defendants claim that Plaintiffs "rejected and/or revoked" the offer and it was no longer valid. Plaintiffs move to enforce the settlement agreement, claiming that the offer was not rejected, as the request was merely an inquiry for better terms. Following a hearing on the motion, the parties filed short submissions on the law at the court's request.

II.

Plaintiffs rely on Beck v. Shrum, ¹ which focuses on conditional language used in the inquiries; KVET Broadcasting Co. v. Tiemann, ² which turn s on the seller's actions to keep the offer under consideration while inquiring about better terms; and King v. Travelers Ins. Co., ^1a which holds that the power of acceptance persisted throughout the negotiations and therefore there was no counteroffer.

1 18 S.W.3d 8 (Mo. Ct. App. 2000).

2 447 SW 2d. 457 (Tx. Ct. App. 1969).

1a 513 So. 2d. 1023 (Ala. Supr. 1987).

Defendants rely on Sandcastle Realty v. Castagna ^2a and Friel v. Jones, ³ which are distinguishable. In each, the buyer conditionally accepted the offer where the price was agreed upon, but acceptance was conditioned on other terms.

2a 2006 WL 2521437 (Del. Ch. 2006).

3 206 A.2d 232 (Del. Ch. 1954).

As a matter of law, a mere inquiry regarding the possibility of different terms or a request for a better offer is ordinarily not a counteroffer.⁴ Here Plaintiffs' request for an additional $1,500 was merely an inquiry and not a rejection or counteroffer, regardless of Defendants' characterization.

4 "A mere inquiry regarding the possibility of different terms, a request for a better offer, or a comment upon the terms of the offer, is ordinarily not a counter-offer." Restatement (Second) of Contracts § 39(b) (1981); "[A]n inquiry by the offer or in regard to the possibility of other terms is not a counteroffer either in the form of a conditional acceptance or otherwise, and will not operate as a rejection of the offer as made." 1 Williston on Contracts § 5:3 (4^th Ed. 2006).

III.

Defendants further contend that labeling Plaintiffs' request as a "counteroffer" demonstrates Defendants' "intent to withdraw" the offer. "The word `revoke' is not essential to a revocation. Any clear manifestation of unwillingness to enter into the proposed bargain is sufficient."⁵ Inexplicit and indirect language may not be enough to revoke an open offer.⁶

5 Restatement (Second) Of Contracts § 42(d).

6 "In the ideal world, a revocation when properly made should be as direct and explicit as an acceptance; if the offer or uses equivocal or inexplicit language, it may not be sufficient to operate as a revocation." 1 Williston on Contracts § 5:8 (4^th Ed.).

Defendants calling Plaintiffs' inquiry a "counteroffer" only suggests the way Defendants' counsel viewed the request for more money. That is not the same as Defendants having manifested their unwillingness to stand by their offer. Again, calling the request a "counteroffer" merely speaks to Defendants' perception of Plaintiffs' intent, not to whether Defendants' offer was revoked. Defendants did not tell Plaintiffs that Defendants' offer was revoked until after Plaintiffs had accepted it. The settlement agreement stands.

IV.

For the foregoing reasons, Plaintiffs' Motion to Enforce Settlement Agreement is GRANTED.

IT IS SO ORDERED.