782 F.2d 1470 (9th Cir. 1986), 84-4230, Eitel v. McCool

Docket Nº:84-4230.
Citation:782 F.2d 1470
Party Name:Gary R. EITEL, Plaintiff-Appellant, v. William D. McCOOL, Defendant-Appellee.
Case Date:January 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1470

782 F.2d 1470 (9th Cir. 1986)

Gary R. EITEL, Plaintiff-Appellant,

v.

William D. McCOOL, Defendant-Appellee.

No. 84-4230.

United States Court of Appeals, Ninth Circuit

January 14, 1986

Submitted Jan. 10, 1986.[*]

Gary R. Eitel, Lindale, Tex., pro se.

Tom Scribner, Minnick, Hayner & Zagelow, P.S., Walla Walla, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, CANBY and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge.

FACTS

This action arose out of the breakdown in an attorney-client relationship between Eitel and McCool late in 1983. Eitel filed a complaint against McCool with the Washington State Bar Association in 1984. Eitel rejected an initial offer to settle for $10,000 and threatened civil action. In April 1984, attorney Scribner, acting on behalf of McCool, offered Eitel $40,000 if he would execute a release of "any and all complaints, whether presently known or anticipated against Bill McCool for any and all legal activities he performed, was to perform or failed to perform" for Eitel. Eitel rejected this offer.

Scribner later renewed this offer. Eitel responded by filing a malpractice suit against McCool in federal district court seeking $2.9 million in damages. On June 18, 1984, attorney Boundy, acting on behalf of McCool's insurer, called Eitel by telephone to offer $40,000 for a settlement of all claims against McCool. According to his affidavit, Boundy told Eitel that all settlement details, including a general release, would have to be arranged with Scribner. Eitel contends that he agreed to accept $40,000 for a stipulated dismissal

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with prejudice of the district court action. He claims he did not agree to execute a general release.

On June 20, a draft for $40,000 from McCool's insurer was received by attorney White, Eitel's "advisor." 1 White endorsed the draft and sent it and accompanying stipulation and release forms to Eitel. On June 22, Eitel acknowledged receipt of the $40,000 and returned to Scribner his proposed "mutual" stipulation of dismissal form to be cosigned by Scribner and sent to the district court. Eitel did not execute the "Release of all Claims" form.

On July 5, Scribner notified Eitel that he would not execute the stipulation of dismissal until Eitel signed the general release. On July 11, Eitel filed a motion for default judgment. On July 18, McCool filed an answer to the complaint and a counterclaim for unpaid legal services in the amount of $22,500. On July 19, McCool moved to strike Eitel's motion for default, to compel Eitel to execute a general release, to dismiss Eitel's complaint, and to obtain attorney's fees.

On July 20, the district court denied Eitel's motion for a default judgment. In August, the district court held a telephone conference with McCool, Scribner and Eitel.

In September, the district court, 602 F.Supp. 126, dismissed with prejudice Eitel's malpractice...

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