Bralley et al v. Carey et al, No. 3:2010cv00138 - Document 18 (E.D. Va. 2010)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/12/2010. Copies to counsel.(cmcc, )
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Bralley et al v. Carey et al Doc. 18 IN THE UNITED STATES DISTRICT COURT j;j | FOR THE EASTERN DISTRICT OF VIRGINIA I L Richmond Division uni i i } NOEL BRALLEY, et al., Plaintiffs, v. Civil Action No. MARK A. 3:10cvl38 CAREY, et al. , Defendants. MEMORANDUM OPINION This ON matter SETTLEMENT is before (Docket evidentiary hearing. record on the No. Court 12), 5, 2010, the MOTION following For the reasons November on the set FOR JUDGMENT briefing and an forth below and on the motion is granted and the settlement agreement will be enforced. FINDINGS The Bralley, Law plaintiffs, of Mark defendants asserted several Act. Robert R. A. were Carolyn represented Dale W. Carey, P.C., dismissed some Bralley Carey, Pittman, Mr. Esquire, Carey Esquire of time Braxton a lawyer, and the defendants. ago. The All Complaint Collection Practices the law firm ThompsonMcMullan, individually represented through counsel who were and and other claims under the Fair Debt Musick, P.C. parties, Bralley, FACT filed an action against Mark A. Offices other Noel OF and the his law offices. plaintiffs. authorized so to do, The reached a Dockets.Justia.com verbal settlement. It which agreement was 1. is not had were as Payment of payments of 2. disputed that the four terms upon follows: $15,000, payable in two $7,500; Said payments would be made thirty days apart; 3. Mark A. Carey payment 4. A agreement defendants' the as is confirmed of Mr. Exhibit Order A reflecting (2) Order contained above, a be namely: which the the settlement; the plaintiffs' of (4) fees, by the discussions settlement forwarded terms the the in motion, by the settlement, testimony between of Mark Messrs. to agreement Mr. addition the by A. Musick in Musick. to the the form of The Consent four set forth the defendants by the plaintiffs; plaintiffs automatic by defendants; relatedly, judgment a provision that the reinstatement timely made and, summary entry of and to attorneys' and a release of the payments were not to the he several (l) release worked to which settlement was reached. provision permitting consent by Musick, Pittman drafted Consent would amounts; confirmed by the emails attached to the motion and Pittman pursuant a agreement guaranty by counsel. It also is Mr. personally settlement memorandum opposing enforcement of testimony Carey. would the settlement out That of of the (3) a case if the defendants' for the remaining unpaid the plaintiffs were entitled costs and expenses of collection in the event it was necessary to reinstate undisputed that Messrs. terms in their objected to all verbal of that Mr. agreement. those four Musick was to which there was verbal The foregoing the basic the settlement. matter on the docket. It is Musick and Pittman did not mention those release by the plaintiffs of contest the facts Mr. terms Carey except testified that the provision the defendants.1 Mr. authorized to agree to for he the Carey did not the four terms agreement. are clearly established and they provide framework within which to decide the motion to enforce DISCUSSION A settlement agreement respecting settlement principles applicable Inc. Va. v. (Fed. Mr. to a and disputes according contracts generally. Silicon Inc., F. citations 2006). Because an agreement to Carey testified that are contract, resolved {internal Cir. concerns 1 agreements Genesis Microchip, 2003) is 271 Supp.2d 840, omitted), the settle he aff'd, dispute an over action opposed 176 F. this the Image, 847-48 arising giving to (E.D. Appx. 109 settlement under releases to the the plaintiffs because it would forfeit the underlying claim of his clients. Quite clearly, that would not be the case because the release provided in the proposed Consent Order would be given only by the defendants (Mr. Carey and his law firm) and not by their clients. Hence, the Court finds this proffered reason unbelievable. Mr. Carey's credibility is further called into question by his admission that he had been disciplined by a bar association in Tennessee for lying to his employer, a district attorney in Tennessee. 3 federal law federal common dispute. 115-16 (4th Auer v. W.L. federal principles Cir. Dunkin' The to Hauling Co. , district the Inc. then, terms the to 603 if so, course, there the 830 Inc., 86 of state's 535, law of calculus. 538 F.3d 1149 are not the 715 F.2d 112, analytical F.2d The parties there S.E.2d is (4th Cir. (table), 1996 in disagreement or is an its agreement." n.l terms . . a See . "meeting Silicon Ct. whether ("The terms there of of was the Image, 271 terms. App. 2004). was Wood v. the an Va. task of the complete none.") minds F. has its there See 1975) the that agreement and (Va. were. (4th Cir. find be agreement 174 determine must settlement determine 425 to the 172, to what is resolution forum of Lavani, enforce F.2d 423, ... the in progress, law. that agreement, essence, to already HVAC Supply, USA, v. 1996). Court 528 court settlement of prove and, v. Corp., seeking Baldwin, of apply Of the applicable Baldwin v. agreement Motors (4th Cir. burden litigation appropriately part Donuts, party task Inc. 1983) . is Kawasaki 276990 The which law also respecting the to Ganewell Mfg,, contracts 1987); as as In to Supp. the 2d at 851. The terms was to analysis which reached Three of by those here there is is lawyers terms an uncomplicated no dispute, authorized are not at and to a agree play in one. There settlement to those the are four agreement four analysis terms. here. However, the settlement agreement, discussed There, defendants directly Dunkin' applying formed a a purpose was. circumstances was no execution of no is the so, the virtually written district Virginia what in no "the Circuit to those parties' Dunkin' in contract The was Donuts. erred that written issue Dunkin' executed. Fourth no This presumption was contract." Court went on to hold is court law identical of there thoroughly contract done because settlement. the under evidence a is that clearly Having that, resolved written explained The and presumption until there there argued Appeals under assert Court and what not is of its concluded that, presented here, intent Donuts, to require supra at *3. Application of that: the presumption does not arise 'when there is no understanding that the agreement will be reduced to writing as a prerequisite to the formation of a contract.' (citation omitted) In this instance, the parties simply agreed to memorialize their settlement with a formal document, but did not make the condition. S.E. 676, contract See 678-79 subject Agostini (Va. v. 1930) to that Consolvo, ('Where 153 the minds of the parties have met and they are fully agreed and they intend to be bound there is a binding contract, even though a formal contract is later to be prepared and signed.'). Id. The (emphasis parties payment and guarantor. added). had the a That meeting time While of they is of precisely the the agreed minds payment to the as and circumstance to the memorialize the amount identity their here. of the of the settlement with a formal settlement Dunkin' does subject Donuts, not document, that did not condition. make the Accordingly, contract of here, in as the failure to execute a formal contract document preclude there was to they enforcement a meeting of agreement will be of the minds the as settlement. to the And, settlement because terms, the enforced. CONCLUSION For record the at foregoing the hearing JUDGMENT ON shall entered the be parties It is reasons, SETTLEMENT on the on and November (Docket No. agreement have a mutual the 5, 12) as reasons 2010, is set the granted, to which, the forth on the MOTION FOR and judgment record shows, understanding. so ORDERED. /s/ Robert E. Payne Senior United States Richmond, Date: Virginia November 12, 2010 District Judge
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