Thompson v. Pike

• Decision Date: 17 August 1992
• Docket Number: No. 19662,19662
• Court: Idaho Supreme Court
• Parties: Glen O. THOMPSON, Plaintiff-Appellant, v. Dona Adams PIKE and Anderson, Pike & Bush, Defendants-Respondents. Boise, May 1992 Term

Page 293

838 P.2d 293

122 Idaho 690

Glen O. THOMPSON, Plaintiff-Appellant, v. Dona Adams PIKE and Anderson, Pike & Bush, Defendants-Respondents.

No. 19662.

Supreme Court of Idaho,

Boise, May 1992 Term.

Aug. 17, 1992.

Rehearing Denied Sept. 29, 1992.

Ellis, Brown & Sheils, Boise, for plaintiff-appellant. Glen O. Thompson and Allen B. Ellis argued.

Racine, Olson, Nye, Cooper & Budge, Chartered, Pocatello, for defendants-respondents. Brent O. Roche argued.

JOHNSON, Justice.

This is an attorney malpractice case in which the trial court granted summary judgment. The primary issues presented and our resolution of them are:

1. Was the appeal timely pursuant to I.A.R. 14(a)?

We conclude that the appeal was timely.

2. Did the trial court correctly grant summary judgment on the ground that the statute of limitations contained in I.C. § 5-219(4) had run before plaintiff filed this action?

We conclude that there is a genuine issue of material fact that precludes the granting of summary judgment.

3. Is there an alternative theory upon which this Court can uphold the summary judgment?

We conclude there is not.

4. Was the trial court correct in awarding attorney fees?

Because of our resolution of the summary judgment issues, we do not address the propriety of the award of attorney fees.

We vacate the summary judgment and the award of attorney fees and remand the case to the trial court for further proceedings.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Glen Thompson was terminated from his employment with Suburban Propane (Vangas). Thompson retained attorney Dona Adams Pike to represent him in a wrongful termination claim against Vangas.

Vangas offered to settle Thompson's wrongful termination claim for $15,000. On July 31, 1987, Thompson told Pike he would accept Vangas' offer, and Pike communicated this acceptance in a telephone call to a Vangas attorney. Vangas' attorney said that he would send an appropriate release to Pike for Thompson's signature.

On August 3, 1987, Pike wrote to Vangas' attorney confirming the telephone conversation of July 31, 1987. In this letter, Pike said:

It is my understanding that all claims which Mr. Thompson may have against Vangas as a result of his termination from Vangas are settled for the sum of $15,000.00. I further understand that Mr. Thompson will execute a release in return for payment of said sum.

Pike sent Thompson a copy of this letter.

On August 4, 1987, Vangas' attorney sent Pike a release, which he said in the letter of transmittal he had drafted "to reflect the settlement of this claim per our phone conversation of last Friday." The Vangas attorney said in the letter that it would take at least one week to obtain a check for the $15,000 settlement, and he asked Pike to contact him "in the interim to indicate acceptance of the enclosed or discuss any questions you may have."

The release stated that Thompson released Vangas from all claims "related to, connected with, or arising out of Thompson's former employment with Vangas and the cessation of that employment." The release included provisions: (1) requiring Thompson to reimburse Vangas for any withholding taxes for which Vangas might be liable because of the payment to Thompson in settlement of the wrongful termination claim, (2) requiring both parties to keep the settlement terms confidential, and (3) declaring that Thompson had not been coerced into signing the release.

Pike sent the release to Thompson, requesting that he review the release and, if it met with his approval, to sign and return it to Pike's office. Thompson told Pike that he was dissatisfied with the provisions of the release listed above and with the written release's failure to provide for payment of his profit sharing plan benefits. Thompson then submitted four proposals to Pike to settle his claims against Vangas on a different basis than the release. In response, Pike wrote to Thompson stating:

Concerning the four proposals you left in my office on September 3, 1987, I must say that I am quite surprised. You authorized me to settle this matter in full for the sum of $15,000. Accordingly, at the time you agreed, I notified [Vangas' attorney] by telephone, and I confirmed the settlement agreement by letter to [Vangas' attorney] dated August 3, 1987, a copy of which was also sent to you.

Once a settlement has been reached in a matter, the parties are bound. An oral settlement agreement is enforceable, particularly when confirmed in writing, as in this case.

I advised [Vangas' attorney] by telephone this morning that you had submitted four proposals to me for consideration by him, and I have forwarded those proposals to him by mail. A copy of my letter is enclosed. [Vangas' attorney] informs me that the proposals are not acceptable, and that as far as he is concerned, this case has been settled for the sum of $15,000.

I have also been notified by [Vangas] that the [release] must be signed by September 11, 1987, and they must be notified that it has been signed or they must have received the agreement.

Please be advised that if you refuse to sign the [release], I will no longer be able to represent you. You should also be aware that [Vangas] may either sue to enforce the settlement agreement, or in the alternative, may assert the settlement agreement as a defense in the event that you retain other counsel and bring an action against [Vangas]. You should also be aware that if subpoenaed to testify, I would have no alternative but to testify truthfully that I had a telephone conversation with [Vangas' attorney] in which I advised him that the matter was settled, and further, that I mailed a letter to him confirming the settlement, a copy of which was also sent to you.

In a letter dated September 11, 1987, Pike told Vangas' attorney that Thompson contended his profit sharing plan benefits were independent of any settlement of the wrongful termination claims and that in Pike's opinion, Vangas was obligated to pay Thompson the profit sharing moneys. Shortly thereafter, Vangas agreed to pay Thompson his profit sharing plan benefits in addition to the $15,000 for settlement of the wrongful termination claims.

Thompson says that in reliance on Pike's advice that there was a binding oral agreement and that he had no choice but to sign the release, Thompson signed the release on September 29, 1987.

On September 28, 1989, Thompson sued Pike. The complaint alleged in Count One that Pike negligently advised Thompson that, without Thompson's authority, Pike entered into a settlement agreement with Vangas, when, in fact there was no binding settlement agreement. The complaint alleged in Count Two that Pike wrongfully misrepresented to Thompson that Pike had entered into a binding settlement with Vangas. Pike denied these allegations and asserted as an affirmative defense that Thompson's claims were barred by the statute of limitations contained in I.C. § 5-219.

Thompson filed a motion for partial summary judgment against Pike on the statute of limitations defense. Pike also moved for summary judgment, seeking dismissal of Thompson's claims.

In ruling on these motions, the trial court pointed out that Thompson admitted that he agreed to accept $15,000 from Vangas to settle the wrongful termination claim. The trial court ruled that the testimony of Pike and Vangas' attorney "establish that a binding oral agreement was mutually agreed upon between these authorized representatives of Thompson and [Vangas] for the settlement of Thompson's wrongful termination claim against [Vangas] for $15,000 during their telephone conversation on July 31, 1987." The trial court also ruled that Thompson had not established that the provisions of the release to which Thompson objected were material variances from the settlement that Thompson had authorized Pike to make.

The trial court dismissed Count One of the complaint with prejudice because Thompson admitted that he authorized Pike to settle his wrongful termination claim for $15,000.

The trial court dismissed Count Two of the complaint with prejudice because Pike correctly advised Thompson that the oral agreement between Pike and Vangas' attorney on July 31, 1987, was a binding oral contract and is barred by the two-year statute of limitations contained in I.C. § 5-219(4).

The trial court granted Pike's summary judgment motion in an order that was mailed to Thompson's attorney by the trial court's law clerk on March 15, 1990. Thompson's attorney received the summary judgment order on March 20, 1990.

On March 16, 1990, the clerk of the district court placed the clerk's filing stamp on the summary judgment order showing that the order was filed on that date. The clerk of the district court did not mail Thompson's attorney a copy of the summary judgment order bearing the filing stamp.

Pike served Thompson by mail with a memorandum of costs and attorney fees on March 23, 1990. The memorandum listed costs of $216.00 and attorney fees of $6,162.00. Thompson served Pike by mail with a motion to disallow attorney fees on April 9, 1990. The clerk of the district court placed the clerk's filing stamp on the motion on April 10, 1990.

On May 16, 1990, Thompson served Pike by mail with a motion to alter or amend the judgment pursuant to I.R.C.P. 59(e) together with a notice setting a hearing on the motion for May 29, 1990. On May 24, 1990, Pike served Thompson by mail with a brief which argued that Thompson's I.R.C.P. 59(e) motion was untimely because it had not been filed within fourteen days after the entry of judgment. In response, Thompson submitted an affidavit of the secretary to Thompson's attorney dated May 29, 1990, which stated:

That on May 3, 1990, I contacted Judge Young's clerk regarding the judgment in the above matter. The judgment had not been signed as of that date for the reason that, according to the judge's clerk, there was a demand for attorney's fees and costs. Judge Young had indicated...