Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1987)

MEMORANDUM^** 

SUMMARY

The Nears appeal the order of the district court holding that an enforceable settlement agreement was reached. The district court's order is affirmed.

STANDARD OF REVIEW

The district court's conclusions of law are reviewed de novo. Eisenberg v. Ins. of N. Am., 815 F.2d 1285, 1288 (9th Cir. 1987). The district court's conclusions of fact are subject to review under the "clearly erroneous" standard. United States v. McConnery, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824 (1984). The question of whether the parties intended only to be bound upon the execution of a written, signed agreement is a factual issue. Callie v. Near, 829 F.2d 888 (9th Cir. 1987).

ANALYSIS

The district court found that a settlement agreement existed prior to the exchange of correspondence on June 9 and 10, and that the parties did not intend only to be bound upon the execution of a written, signed agreement. There exists evidence to support this finding. The June 9, 1986 letter (written by the Nears' counsel, Stephen Weiss, and approved by Bradley Near) begins, "This is to confirm our agreement of this date...." During the hearing, Mr. Weiss testified that he thought an agreement had been reached as of June 9, 1986.

Q. Did there come a time when you reached with Mr. Lindsay Brew (counsel for the Callies) what you believed to be an agreement on the settlement of this matter?

A. Yes.

Q. When did that occur?

A. I think it was at or around the time I authorized the June 9, 1986, letter.

The Nears attempt to characterize the June 9, 1986 letter as an offer. They argue that the June 10, 1986 letter from the Callies' attorney was a rejection as it did not "mirror" the terms in the June 9, 1986 letter. The district court's finding that the agreement already existed, however, is supported by evidence and thus must be upheld. As counsel for the Callies point out, the letter refers to a preexisting agreement and contains no language suggesting it is only an offer or a draft of an agreement.

Appellants argue that a Second Circuit case, Winston v. Mediafare Entertainment Corp., 777 F.2d 78 (2d Cir. 1985), is pertinent to this case. In overturning the district court's finding that a settlement had been reached, the court of appeals considered four factors:

(1) whether there had been an express reservation of the right not to be bound in the absence of a writing;

(2) whether there had been partial performance of the contract;

(3) whether all of the terms of the alleged contract had been agreed upon; and

(4) whether the agreement at issue is the type of contract that is usually committed to writing.

An analysis of the present case in light of these factors still favors upholding the district court's conclusions that an agreement existed.

No express reservation of this right is evidenced. In fact, as noted previously, the writings speak of a prior agreement. Appellants make much of the differences between the proposed judgment insofar as the proposed judgment included language of racketeering which both sides agreed would not be included. Of course, this appears irrelevant to the question of whether the parties reserved the right to be bound only by a formal written agreement.

Regardless, the testimony supported the district court's conclusion that both parties intended to remove the language which appellants found objectionable.

It appears that appellants attempted to secure financing to pay the settlement. In fact, Mr. Near testified that he did not make the June 19, 1987 payment because financing fell through. Thus the district court could have concluded that this evidenced a settlement agreement.

3. Agreement as to all the terms of the contract

The district court had ample evidence to conclude that all of the terms of the settlement were agreed upon.

4. Whether this type of agreement is usually written

Appellants point out that the judgment and stipulation were not executed, and that clearly the parties intended them to be signed in order to secure the appellants' obligation. This, however, is irrelevant to whether an enforceable agreement existed. Execution of these documents was part of the performance of the agreement and did not show that the agreement did not exist.

CONCLUSION

Given the deferential standard of review, it seems clear that the district court's conclusion that the parties intended to be bound by their June 9, 1986 agreement finds ample support in the record. Even adopting, arguendo, the analysis from the Second Circuit, the evidence supports the district court's conclusion. The order is

AFFIRMED.