Edward C. Furlong, III v. Randall Cooper, Esq. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0394, Edward C. Furlong, III v. Randall
Cooper, Esq. & a., the court on January 25, 2016, issued the
following order:

Having considered the brief and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We
reverse and remand.

The defendants, Randall Cooper, Esq. and Cooper Cargill Chant, P.A.,
appeal an order of the Superior Court (Tucker, J.) denying their motion to
enforce a settlement agreement with the plaintiff, Edward C. Furlong, III. They
contend that the trial court erred by finding that they and the plaintiff had not
reached an agreement to settle both the plaintiff’s claim against them in
Edward C. Furlong, III v. Randall Cooper, Esq. & a., case no. 2014-0113
(malpractice case), which is currently pending before us, and any potential
claims the plaintiff might have against them arising out of an action by the
Town of Bartlett against the plaintiff (Town of Bartlett case). See Town of
Bartlett v. Furlong, 168 N.H. ___, 124 A.3d 221 (2015). The trial court ruled
that the plaintiff offered to settle only the malpractice case.

We review the trial court’s ruling regarding the existence of a settlement
as a mixed question of law and fact. Poland v. Twomey, 156 N.H. 412, 414
(2007). Mixed questions of law and fact concern the application of a rule of law
to the facts and the consequent determination of whether the rule is satisfied.
Id. We will not overturn the trial court’s ruling on a mixed question unless it is
clearly erroneous. Id. If, however, the court misapplies the law to its factual
findings, “we review the matter independently under a plain error standard.”
Id.

In this case, the parties do not dispute the sequence of events or the
authenticity of the e-mails between them. The only sworn testimony was from
the defendants’ attorney, Christopher Hawkins, who negotiated with the
plaintiff. Because the trial court’s finding that the parties had not reached a
settlement agreement was based upon those e-mails, the existence of an
agreement presents a question of law that we review de novo. See Mahindra &
Mahindra v. Holloway Motor Cars of Manchester, 166 N.H. 740, 748 (2014)
(stating existence of waiver based solely upon a letter is question of law and
reviewed de novo).
 A valid and enforceable settlement, like any contract, requires offer,
acceptance, consideration, and mutual assent. Hogan Family Enters. v. Town
of Rye, 157 N.H. 453, 456 (2008). Mutual assent requires that the parties have
the same understanding of the agreement’s essential terms and manifest an
intent to be bound by them. Id. In reviewing a settlement agreement, we are
mindful of the strong public policy favoring the settlement of civil matters. Id.
Generally, parties are free to settle a case on any terms that they desire and
that are allowed by law. Poland, 156 N.H. at 414-15.

In this case, the trial court found that “[a]ttorneys negotiating the type of
settlement at issue here might have understood the agreement” included both
the plaintiff’s claims in the malpractice case and any claims he might have
arising out of the Town of Bartlett case, but concluded that the plaintiff “was
self-represented and he did not agree to those terms.” We disagree.

After obtaining a judgment in the malpractice case, which the defendants
appealed, the plaintiff called Hawkins to discuss settlement. Immediately
following that conversation, Hawkins e-mailed the plaintiff to confirm his
understanding of the plaintiff’s settlement offer. The subject line of that e-mail
was “Furlong v. Cooper and Town of Bartlett v. Furlong.” (Emphasis added.)
The body of the e-mail stated, “We discussed that . . . you would release all
claims against [the defendants] in the malpractice case currently pending in
the Supreme Court, and in relation to your dispute with [t]he [T]own of
Bartlett.” (Emphasis added.) The e-mail closed with the request “[i]f anything
I’ve stated here is inaccurate, please let me know as soon as possible.” The
plaintiff did not respond, thereby implicitly confirming that the e-mail stated
his settlement offer correctly.

Five days later, on March 5, Hawkins sent the plaintiff an e-mail
accepting his settlement offer. The subject line of this e-mail was “Furlong v.
Cooper and Town of Bartlett v. Furlong.” (Emphasis added.) The first sentence
of the e-mail stated, “This will confirm that [the defendants] accept your offer to
settle the current appeal, and all claims against [them] arising from the Town
of Bartlett dispute.” (Emphasis added.) It closed with “[p]lease let me know if
you have any questions.”

The plaintiff did not raise any concern about the scope of the settlement.
Instead, he requested Hawkins’s assistance regarding another issue, which was
resolved by the end of the day. At that time, Hawkins sent the plaintiff another
e-mail confirming that “we have reached an agreement to release all claims
against [the defendants] in both the malpractice and the Town of Bartlett
cases,” (emphasis added) and closing with the statement, “If my understanding
is inaccurate, please let me know by noon tomorrow.” Again, the plaintiff did
not raise any concern regarding the settlement.

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 The following day, Hawkins sent the plaintiff a draft settlement
agreement. The cover e-mail stated, “This document describes our agreement
as documented in the e-mails between us. . . . Please look it over carefully and
let me know if you have any questions or concerns.” Three days later, the
plaintiff e-mailed Hawkins that he was seeking counsel to review the draft
settlement agreement. Eight days after that, the plaintiff e-mailed Hawkins
that he had not obtained counsel and that he had “a small concern” that the
settlement agreement covered both the malpractice case and the Town of
Bartlett case and that, because the Town of Bartlett case was still pending in
the superior court, he saw “no reason why that should be included.”

The next day, the plaintiff e-mailed Hawkins stating that he had “re-
considered” the settlement agreement and “would consider signing it,” as
written, for twice the consideration that the parties had agreed upon. The
plaintiff did not state that Hawkins had misunderstood the scope of the
settlement; he merely attempted to increase his compensation.

Upon the face of this record, we conclude that, as a matter of law, the
parties here entered into an enforceable settlement agreement as of the
defendants’ acceptance of the plaintiff’s offer on March 5, which covered both
the malpractice case and any claims arising from the Town of Bartlett case. We
conclude that the e-mails, which the plaintiff did not challenge before the trial
court, do not support the trial court’s conclusion that the plaintiff intended to
settle only the malpractice case.

Once the defendants accepted the plaintiff’s offer, the plaintiff was no
longer free to “re-consider” the settlement or to demand additional
compensation. See Hogan Family, 157 N.H. at 457-58 (stating enforceable
settlement agreement when record reflects essential terms of settlement and
parties’ assent to such terms). The plaintiff’s subsequent e-mail, raising “a
small concern” regarding the scope of the settlement, was ineffective to alter its
terms. Although the plaintiff represented himself throughout the negotiation,
he is bound by the same rules as a party with counsel. Cf. In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (stating self-represented
parties bound by same procedural rules governing parties represented by
counsel).

Reversed and remanded.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

Eileen Fox,
Clerk

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