Condon v. Condon
| Decision Date | 21 March 2013 |
| Docket Number | No. 86130–7.,86130–7. |
| Citation | 177 Wash.2d 150,298 P.3d 86 |
| Court | Washington Supreme Court |
| Parties | Vanessa CONDON, Appellant, v. Fely CONDON, Respondent. |
Gordon Arthur Woodley, Attorney at Law, Kirkland, WA, for Appellant.
Gregory John Wall, Wall Liebert & Lund PS, Port Orchard, WA, for Respondent.
¶ 1 In open court, appellant Vanessa Condon1 and respondent Fely Condon entered into a stipulated settlement and dismissal with prejudice of Vanessa's claims against Fely, stemming from an automobile accident. Before payment of the settlement funds, Fely requested that Vanessa sign a release agreement, which the parties had not discussed nor placed on the record. Vanessa refused to sign the release and Fely made a motion to enforce the settlement and the release. The trial court entered an order deeming the release signed. Vanessa filed a motion for discretionary review in this court,2 arguing the trial court lacked jurisdiction to enforce release terms that were not a part of the original agreement. Fely contended Vanessa waived her right to appeal by accepting the settlement check. We hold that Vanessa Condon did not waive her right to appeal and that the trial court improperly added implied terms to the agreement. Accordingly, we reverse.
¶ 2 On August 24, 1996, Fely Condon was driving with her daughter, Vanessa Condon, when they were struck by another vehicle. Vanessa was ejected from her mother's car and sustained several injuries including a concussion, a damaged tooth, and cuts and contusions. Vanessa was entitled to coverage by Farmers Insurance Company of Washington under an underinsured motorist (UIM) policy, which provided for arbitration of disputes. Her claim was arbitrated. The award of $108,000 was confirmed and judgment entered on February 10, 2011 in King County.
¶ 3 Vanessa also instituted an action in Kitsap Superior Court against Fely in 2005. The parties settled before trial. In open court on March 29, 2011, the parties agreed that Vanessa would receive a $100,000 payment from Farmers, credited against the King County UIM arbitration judgment, and Fely would pay the remaining $8,000 to satisfy the UIM judgment, with attorney fees to be argued at a later date. No written settlement or release was presented. The parties signed a stipulation and order of dismissal on March 29, and on April 1 the court ordered dismissal with prejudice.
¶ 4 On March 30, 2011, prior to the dismissal, Fely's counsel sent Vanessa's counsel a receipt and release of claims form to sign. On April 1, 2011, Vanessa notified Fely that she would not sign the release. Fely then moved to enforce the settlement and compel Vanessa to sign the receipt and release. Vanessa objected to the motion, arguing that the release was never part of the settlement and that the stipulated order of dismissal with prejudice ended all litigation. She also asked for CR 11 sanctions against Fely. Fely argued that the separate release was a common practice in settlements and that she would not have entered into the agreement had she been aware that Vanessa did not intend to sign the release.
¶ 5 At the April 22, 2011 hearing on the motion, the trial court asked Vanessa's attorney whether she objected to a particular part of the release, or rather the "concept" of a release. Verbatim Report of Proceedings (VRP) (Apr. 22, 2011) at 5.
¶ 6 Her attorney replied that Vanessa had not agreed to any release. Referencing an unpublished case from California, El–Fadly v. Northridge Park Townhome Owners Ass'n, No. B172684, 2005 WL 1503857 (Cal.Ct.App. June 27, 2005) (unpublished), the trial court ruled that the settlement would stand and that the settlement check would not be released until a release was signed. The parties were ordered to create a "customary and usual release." VRP at 9.
¶ 7 At a subsequent hearing, the trial court heard the parties' arguments on the release language provided by Fely's attorney. Vanessa's attorney expressed concern that the language was overly broad and could preclude Vanessa from receiving the unsatisfied judgment from the King County UIM decision and bringing any potential bad faith claims. Her attorney filed a declaration that included the release Fely had provided the court, with certain sections redacted. Fely's counsel argued that the portions of the release, indemnity, and hold harmless provisions to which Vanessa objected were standard, saying, "[T]his is a standard release in this case which we ordinarily and routinely have people sign." VRP (May 13, 2011) at 14. The court was satisfied with the unredacted release and entered an order deeming the release signed, noting that the record of the May 13 proceeding was sufficient to support Fely's claim that "the release only applies to this case." Id. at 12.
¶ 8 Citing RAP 2.5(b), Fely contends that Vanessa waived her right to appeal because she received the benefit of the settlement when she cashed the $100,000 check. See Buckley v. Snapper Power Equip. Co., 61 Wash.App. 932, 941–42, 813 P.2d 125 (1991). RAP 2.5(b)(1) allows a party to accept the benefits of a trial court decision without losing the right to appeal under only four circumstances, including "if, regardless of the result of the review based solely on the issues raised by the party accepting benefits, the party will be entitled to at least the benefits of the trial court decision." "The purpose of RAP 2.5(b) is to ensure that a party seeking review will be able to make restitution if a decision is reversed or modified on appeal." Scott v. Cascade Structures, 100 Wash.2d 537, 541, 673 P.2d 179 (1983) (citing RAP 2.5(b)(2) cmt., 86 Wash.2d 1151 (1976)). In this case, even if the settlement was vacated, Vanessa would be entitled to the $100,000 through the King County UIM arbitration. We find no waiver on these facts.
¶ 9 Next, Vanessa argues that the trial court lacked jurisdiction to enforce a settlement following dismissal of claims. This is a question of law that is reviewed de novo. Crosby v. Spokane County, 137 Wash.2d 296, 301, 971 P.2d 32 (1999) ; State v. Squally, 132 Wash.2d 333, 340–41, 937 P.2d 1069 (1997). Enforcement of this settlement is governed by CR 2A. In re Marriage of Ferree, 71 Wash.App. 35, 39, 856 P.2d 706 (1993). The rule 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.
CR 2A. The purpose of CR 2A is to give certainty and finality to settlements. Eddleman v. McGhan, 45 Wash.2d 430, 432, 275 P.2d 729 (1954) ().
¶ 10 Where the CR 2A requirements are met, a motion to enforce a settlement is a commonly accepted practice. See Ferree, 71 Wash.App. at 45, 856 P.2d 706 (); Brinkerhoff v. Campbell, 99 Wash.App. 692, 697, 994 P.2d 911 (2000) (); Howard v. Dimaggio, 70 Wash.App. 734, 739, 855 P.2d 335 (1993) (); Kwiatkowski v. Drews, 142 Wash.App. 463, 479, 176 P.3d 510 (2008) ().
¶ 11 The premise of Vanessa's argument is that a dismissal with prejudice ends all litigation, thus removing the court's jurisdiction. Vanessa cites Cork Insulation Sales Co. v. Torgeson, 54 Wash.App. 702, 705, 775 P.2d 970 (1989), as support for her position. In Cork, the Court of Appeals held that the trial court lacked jurisdiction to enter a judgment awarding terms against the defendant in connection with a motion to vacate a default judgment weeks after the plaintiff obtained a voluntary dismissal of his claims. Unlike this case, Cork did not involve enforcement of a settlement, the terms of which were in dispute. Moreover, the Court of Appeals subsequently explained the limited scope of its holding in Cork in Hawk v. Branjes, 97 Wash.App. 776, 782, 986 P.2d 841 (1999). In Hawk, the trial court awarded the defendant tenant costs and attorney fees after granting the landlords' motion to voluntarily dismiss their complaint. Hawk, 97 Wash.App. at 778–79, 986 P.2d 841. The landlord appealed, claiming that its voluntary dismissal ended the case, and the trial court, therefore, based on Cork lacked jurisdiction to make the award. Id. at 782, 986 P.2d 841. The Court of Appeals in Hawk distinguished its Cork decision, stating that Cork did not involve an attorney fee awarded under a statute or contractual provision. Id. The court noted that "[w]hile a voluntary dismissal under CR 41(a)(1) generally divests a court of jurisdiction to decide a case on the merits, an award of attorneys' fees pursuant to a statutory provision or contractual agreement is collateral to the underlying proceeding." Id. at 782–83, 986 P.2d 841. The court observed that "to hold otherwise would unnecessarily subject the courts to separate actions to recover fees readily ascertainable upon dismissal of the underlying claim." Id. at 783, 986 P.2d 841.
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Table of Cases
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