TCBY Systems, Inc. v. EGB Associates, Inc.

• Decision Date: 16 August 1993
• Docket Number: No. 92-2932,92-2932
• Citation: 2 F.3d 288
• Parties: TCBY SYSTEMS, INC., an Arkansas corporation; TCBY Enterprises, Inc., a Delaware corporation, Appellees, v. EGB ASSOCIATES, INC., a New York corporation; Charles R. Hart, citizen of New York; Donald F. Hart, citizen of New York; Brian Hart, citizen of New York; William D. Hart, citizen of New York, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 288

2 F.3d 288

TCBY SYSTEMS, INC., an Arkansas corporation; TCBY

Enterprises, Inc., a Delaware corporation, Appellees, v. EGB ASSOCIATES, INC., a New York corporation; Charles R.

Hart, citizen of New York; Donald F. Hart, citizen of New

York; Brian Hart, citizen of New York; William D. Hart,

citizen of New York, Appellants.

No. 92-2932.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1993.

Decided Aug. 16, 1993.

Thomas R. Snow, Clifton Park, NY, argued, for appellants.

Kevin A. Crass, Little Rock, AR, argued, for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

PER CURIAM.

EGB Associates, Inc. and Charles R., Donald F., Brian and William D. Hart (collectively referred to as "EGB") appeal from the district court's judgment enforcing a settlement agreement. We affirm in part and reverse and remand in part.

In April 1991, TCBY Enterprises, Inc. and TCBY Systems, Inc. (collectively referred to as "TCBY") filed suit against EGB alleging Lanham Act violations, unfair competition, breach of contract and guaranty, and failure to pay certain fees owed as franchisees. EGB answered, specifically reserving the right to plead further by amended answer or counterclaim.

On September 18, 1991, Robert M. Cearley, Jr., EGB's attorney, wrote a letter to Kevin Crass, TCBY's attorney, stating: "I am authorized to offer (and do offer) $28,000.00 in full settlement of all issues between our clients. We are in a position to close this out quickly, if this offer is acceptable." On September 20, Crass responded by letter: "In exchange for mutual releases, TCBY accepts the offer expressed in your letter of September 18, 1991. I will send you a proposed release in the next few days." On September 26, Crass sent a proposed settlement agreement with release to Cearley. Crass instructed that, if the agreement was acceptable to Cearley's clients, they should sign it and forward it with the settlement funds. He added: "If the proposed Agreement is not acceptable, please let me know." The agreement required EGB to pay TCBY $28,000.00 and to completely "de-identify" former TCBY stores in accordance with TCBY franchise agreements. The agreement also provided for a release of "all claims and demands of whatever nature [EGB has] or may have had against [TCBY] ..., including any claims or demands arising out of the actions which are the basis of the claims" in the pending lawsuit.

On November 4, Cearley wrote Crass to confirm their recent telephone conversations in which he had advised Crass that EGB was not willing to execute the release of claims in regard to the settlement. Cearley, however, stated that EGB would agree to the "payment of $28,000 and the dismissal with prejudice of the pending lawsuit." On November 8, Crass replied that if EGB was not willing to sign a standard release, TCBY agreed to "dismissal of the claims in exchange for $28,000" and attached a proposed order of dismissal to be approved by Cearley on behalf of EGB. The proposed order provided that the district court would "dismiss all claims pending before the Court, and all claims arising out of the transaction or occurrence that is the subject matter of this lawsuit with prejudice."

On December 11, Crass wrote to Cearley inquiring about payment of the settlement funds, noting that Cearley had indicated that EGB "was gathering the settlement funds of $28,000 and that payment could be expected in the near future." On January 2, Crass wrote again and told Cearley that, based on the agreement to settle, TCBY had not conducted discovery and had informed the district court that the case had been settled.

On January 21, 1992, TCBY filed a motion to enforce settlement and attached the above-described correspondence. EGB, represented by new counsel, opposed the motion, asserting that it understood the settlement was to "encompass only the existing claim and at no time envisioned a release of all claims." EGB also requested leave to file an amended answer which included affirmative defenses and counterclaims against TCBY. The proposed counterclaims alleged that TCBY fraudulently induced EGB into entering franchise agreements and breached those agreements.

The district court summarily granted TCBY's motion to enforce settlement, finding that an agreement had been reached on September 20 when Crass accepted Cearley's offer of September 18 to settle "all issues" for $28,000.00. The court entered judgment against EGB for $28,000.00 and ordered EGB to execute the agreement and general release which TCBY had forwarded to Cearley on September 26, but which EGB had rejected.

On appeal, EGB argues that the district court erred in granting TCBY's motion to enforce settlement, asserting there was no "meeting of the minds" as to the terms and scope of a settlement agreement. EGB suggests that Crass's reply of September 20 was not an acceptance of Cearley's offer of settlement, but a counteroffer which conditioned the dismissal on execution of mutual releases. EGB notes that in Crass's letter of November 4 TCBY acknowledged and accepted EGB's refusal to execute the settlement agreement and general release. We agree with EGB that Crass's reply was not an acceptance but a counteroffer, which EGB rejected. The district court therefore erred in ordering EGB to execute the draft agreement. A district court "does not have the power ... to decide ... that a draft settlement agreement was binding when the parties did not agree on it." Wang Lab., Inc. v. Applied Computer Sciences, Inc., 958 F.2d 355, 359 (Fed.Cir.1992). Accordingly, that portion of the judgment ordering EGB to execute the draft settlement agreement and release is vacated.

Although we find that the district court exceeded its authority in ordering EGB to execute the agreement and release, we nonetheless find that the parties reached an agreement to dismiss the lawsuit with prejudice. On November 4, Cearley wrote that EGB "agree[d] to the payment of $28,000 and the dismissal with prejudice of the pending lawsuit." On November 11, Crass accepted the offer of "dismissal of the claims in return for $28,000" and forwarded a proposed order of dismissal. The proposed order was not a general release of "all claims and demands of whatever nature [EGB] h[as] or may have had...