Opinion
Civil No. 00-674-JO
January 8, 2002
David L. Reich, Bend, OR, Plaintiff Pro Se.
Patty T. Rissberger, DuBoff Dorband Cushing King, Portland, OR, Attorney for Defendants.
OPINION AND ORDER
Plaintiff David Reich brought this action against defendants Kathleen Dunlay and David Greenberg, alleging claims for violation of the Lanham Trademark Act and the Oregon General Partnership Act, and common law claims for interference with prospective economic advantage and civil conspiracy. The claims all center on a dispute over rights to a book entitled Traditional Celtic Violin Music of Cape Breton.
Defendants filed a motion for summary judgment on all claims in May 2001. Citing various reasons, plaintiff obtained several extensions of time to respond to the motion. In August 2001, plaintiff's counsel withdrew, and plaintiff proceeded pro se. In September 2001, plaintiff notified the court that he was seeking counsel and wanted to engage in settlement negotiations with defendants, and requested a further extension of time to respond to defendants' motion. On December 3, 2001, based on information that the case had settled or was likely to settle, the court canceled the summary judgment hearing set for December 10, 2001, and set a status conference for mid-January 2002.
Until recently, however, it appears that plaintiff continued to obtain advice of counsel to some degree.
On December 10, 2001, defense counsel notified the court that plaintiff had executed a settlement agreement on November 16, 2001, but was attempting to withdraw the agreement. Following a telephone conference on December 12, 2001, the court ordered the parties to submit, in writing, their factual and legal arguments concerning the status of the settlement.
The parties have submitted their materials, and the case is now before me on defendants' motion to dismiss with prejudice based on the settlement agreement (# 74). Having carefully considered the legal and factual arguments and for the reasons stated below, I find that the settlement agreement is binding and enforceable. Consequently, defendants' motion to dismiss is well-taken and is granted.
RELEVANT CHRONOLOGY
It appears from the parties' submissions that the events relevant to the present question unfolded as follows:
Copies of all materials quoted in this section are attached as exhibits to the Affidavit of Patty Rissberger and will not be separately cited.
November 8, 2001: Patty Rissberger of defendants' attorneys sent Kenneth Brinich, plaintiff's attorney, the original Mutual Release of All Claims ("settlement agreement") and asked that the signed agreement be returned to her in an envelope that she provided.
November 16, 2001: Plaintiff signed the settlement agreement.
November 26, 2001: Leonard DuBoff of defendants' attorneys sent a letter by facsimile to Brinich. The letter states in part that
unless the Settlement Agreement is signed by your client and messengered to this office by close of business on Thursday, November 29, 2001, the offer to settle will be withdrawn and we shall proceed with the summary judgment.
* * *
I do look forward to either receiving the fully executed Settlement Agreement or going forward.
(Emphasis added.)
November 29, 2001: Brinich signed the settlement agreement as "approved as to form" and sent it by facsimile to Rissberger. In a note to Rissberger on the facsimile cover page, Brinich stated that
This fax confirms our telephone conversation this morning * * * that you will accept this fax delivery of the MUTUAL RELEASE OF ALL CLAIMS as timely received under the deadline you have previously established of November 29, 2001. The mailed original will be sent by regular US Mail today. Please return a copy after your clients have signed it.
The page shows that Brinich sent a copy to plaintiff.
It appears that also on November 29, 2001, defendants each signed a copy of the settlement agreement.
I am unable to determine from the record when or how the defendants, who evidently reside in Canada or Nova Scotia, provided the signed copy to their attorneys.
December 7, 2001: Plaintiff wrote, but did not send, a letter to Rissberger informing her that "I am hereby withdrawing the signed offer of Settlement which was tendered to you recently."
December 10, 2001: Plaintiff sent the December 7 letter to Rissberger by facsimile.
DISCUSSION
The issue framed by defendants' motion to dismiss is whether the settlement agreement is enforceable. Defendants contend that it became enforceable when plaintiff executed it on November 16, 2001. Plaintiff, in turn, characterizes the signed settlement agreement as his offer to settle, and contends that he revoked his offer before defendants accepted it.
The resolution of this issue depends on standard contract law principles. See In re Marriage of Reich, 176 Or. App. 442, 451, 32 P.3d 904 (2001). As the Oregon Court of Appeals recently explained in Reich, unless an offer provides otherwise
Plaintiff presumably is quite familiar with the contract principles of offer, acceptance, and revocation, given his recent unsuccessful attempt to revoke another settlement agreement. See In re Marriage of Reich, 176 Or. App. 442, 32 P.3d 904 (2001).
"an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession * * *."
Reich, 176 Or. App. at 451 (quoting Restatement (Second) of Contracts § 63 (1979)). In Reich, the court of appeals also clarified that if an offer invites acceptance by mail, as in this case, acceptance of the offer is effective "if the acceptance is duly addressed and mailed before knowledge of any retraction of the offer." 176 Or. App. at 451 (citing C.R. Shaw Wholesale Co. v. Hackbarth, 102 Or. 80, 92, 198 P. 908 (1921)).
Plaintiff's reliance on the statement in Lamb v. Morderosian, 36 Or. App. 505, 584 P.2d 796 (1978), that "the acceptance was not valid until the agent communicated it to the offeror," is misplaced because the factual premise of that principle is not present in this case. See Restatement (Second) of Contracts § 63 (1979), comment e and illustration 11.
With those principles in mind, I turn to the parties' contentions. Plaintiff urges the court to view his mailing of the executed settlement agreement as his "offer" to settle, an offer he then purported to revoke. The problem with that theory is that the record plainly demonstrates that defendants — not plaintiff — made the offer and invited plaintiff to accept by mail. Consequently, when plaintiff executed the settlement agreement and his attorney faxed and mailed it to defendants' counsel (thereby "put[ting] it out of the offeree's possession") plaintiff created a binding contract. The record permits no other inference.
See Restatement (Second) of Contracts § 63(a).
I also agree with defendants that there is no evidence of the kind of unilateral mistake that would warrant rescission of the settlement agreement. Plaintiff admits that he "signed the settlement agreement last November with serious misgivings * * *," thus belying any claim that he made a mistake. Moreover, there is no evidence that any mistake was known to the defendants. Wershow v. McVeety, 263 Or. 97, 103, 500 P.2d 698 (1972).
CONCLUSION
Defendants' motion to dismiss (# 74) is GRANTED and this action is dismissed with prejudice. All other pending motions, including the motion for summary judgment (# 41) are denied as moot.