Motion to enforce a settlement agreement; “Offer” & “acceptance”; Kloian v Domino’s Pizza LLC; Mutual assent; Clark v Al-Amin; Contract to make a contract; Attorney fees; The “American Rule”

Holding that the parties did not reach an agreement on material terms and thus, that no contract was formed as to the proposed settlement, the court reversed the trial court’s order granting plaintiffs’ motion to enforce a purported settlement agreement. It also reversed the award of attorney fees to plaintiffs as there was no “identifiable source” permitting the trial court do so. The case arose from a real property dispute. The court determined that an email from defendants’ counsel to plaintiffs’ counsel constituted an offer, but plaintiffs’ counsel’s response was not an acceptance as it “was not in strict conformance with the offer and did not manifest an intent to be bound by the offer as presented[.]” Plaintiffs contended that the offer was accepted, focusing only “on the phrase ‘the settlement offer is accepted[.]’” However, the court concluded that “the additional explanation included in the response of plaintiffs’ counsel makes clear that the acceptance was not in ‘strict conformance’ with the offer as required to form a contract.” Plaintiffs’ counsel’s alleged acceptance “included the proviso that there was no settlement agreement unless a ‘fully executed document in recordable form withdrawing the 5th modification to the declaration of restrictions and acknowledging that the original declaration of restrictions (not including the permanent easements) expired in 1999’ was actually obtained.” It was clear from the email exchanges “that ‘fully executed’ meant that the document was signed and agreed to by” two non-parties (H and U). The court found that an “objective view of the express words in the parties’ emails reveals that plaintiffs’ attorney wanted a guaranteed result regarding the agreement of [H] and [U] and the obtainment of a fully executed and recordable document, while defendants’ attorney only offered to attempt to secure this result; thus, there was never a meeting of the minds on these terms, regardless of what each may have subjectively believed.” As a result, there was no contract. The court added that disclaimer language about “establishing a contract by email that was included in the email of plaintiffs’ attorney also belies the claim that a contract was formed.” Further, as to attorney fees, no “statute, court rule, or valid contract permitting” this award was identified. Remanded.