October 18, 2016
from the Superior Court of the District of Columbia
(CAB-2344-06) (Hon. John M. Mott, Trial Judge)
O. Ford for appellants. Thomas G. Corcoran Jr., Melvin White,
and Laina Lopez were on the brief for appellants.
J. Ludlow, with whom Ryan C. Morris and Kristen A. Knapp were
on the brief, for appellees.
Fisher and Thompson, Associate Judges, and Ruiz, Senior
Thompson, Associate Judge
Associated Estates, LLC, and its managing member and
corporate representative, Barrett Ware, (together,
"AE") contend that the trial court (the Honorable
John M. Mott) erred and abused its discretion in enforcing a
settlement between AE and defendants/appellees BankAtlantic;
Heartwood 88, LLC; Heartwood 87, LLC; Sunrise Atlantic, LLC;
and Fidelity Tax, LLC (together, "BankAtlantic").
parties had a contract under which AE performed research and
portfolio-servicing work for BankAtlantic in connection with
tax lien certificates. On March 24, 2006, AE filed a
complaint against BankAtlantic, alleging breach-of-contract
and other claims and seeking both equitable relief and
damages in excess of $19 million. In February 2012, after
nearly six years of discovery and motions practice, the
parties participated in a private mediation before a retired
Superior Court judge in an attempt to resolve the counts of
the complaint that had survived a motion to dismiss. The
private mediation was unsuccessful.
on February 17, 2012, Judge Mott held a case status
conference for which Mr. Ware was not present. During the
status conference, counsel for AE told Judge Mott that while
the parties were "closer than . . . in the past, "
they had not been able to reach a settlement during the
private mediation. Judge Mott asked whether the parties
"[w]ant[ed] to let [him] know the amounts . . . ."
BankAtlantic's counsel responded that "[t]he last
offers" were BankAtlantic's offer to settle the case
for $1 million and AE's counter-demand of $1.8 million.
AE's counsel acknowledged that those "dollar figures
[we]re correct." Judge Mott then suggested a court-led
settlement conference to be held on April 4,
2012. Counsel for both parties agreed.
April 4 settlement conference began with Judge Mott inquiring
about the "latest demand from the plaintiffs."
Counsel for AE responded that the dollar figures remained the
same. Judge Mott then referred to the $800, 000 "gulf,
" said that there appeared to be "a reasonable
chance to settle this matter, " and said that he would
talk separately with each side, and with anyone they cared to
bring along, in separate jury rooms (a format that Judge Mott
later observed was a "standard procedure" that
judges "are trained to employ"). No one objected.
seven hours of negotiations, the parties reached an oral
agreement to settle the lawsuit for $1.55 million. The judge
and the parties and their respective counsel then returned to
the courtroom to put the terms of the agreement on the
record. After Judge Mott summarized his understanding of the
agreement and AE's counsel and BankAtlantic's counsel
added details about the latter's agreement to prepare a
first draft of a written agreement and agreed that the
settlement payment would be made to the trust account of
AE's counsel, Mr. Ware thanked the court. A moment later,
however, in what he later described as an "outburst,
" Mr. Ware said, "You all screwed me. You all
screwed me." Judge Mott then announced a "short
break" in the proceedings and suggested that Mr. Ware
step into the hallway with his counsel. When AE's counsel
returned without Mr. Ware, who, he told the court, was
"upset, " Judge Mott said that the proceedings were
"really not done if [the court's] impression could
potentially be that [Mr. Ware is] not entering into this
voluntarily." Judge Mott added that he wanted to ask Mr.
Ware whether he had entered into the settlement agreement
appeared that Mr. Ware might not return to the courtroom that
day, Judge Mott suggested that AE's counsel "come in
some time tomorrow [or "the next day"] with Mr.
Ware, and just finalize things on the record." When
appellant thereafter returned to the courtroom (after what
Judge Mott observed had been "nearly twenty
minutes"), Judge Mott inquired, "So, Mr. Ware, is
this your agreement? Is this what you want at this point? It
may not be exactly what you expected or wanted, initially,
but is this what you want me to do today to approve this
agreement and move on?" Judge Mott told Mr. Ware that he
was "not going to approve" the agreement
"unless the people that are involved on both sides feel
it was a voluntary decision, that they weren't forced
into this in any way, " and "unless this is what
you want. So it's not about what you said in the back.
It's about what you want to say now." Judge Mott
then added that Mr. Ware should "feel free"
"to have another minute" and asked whether Mr. Ware
wanted "to speak with your lawyers for just a second or
do you want to tell me what you think?" Judge Mott also
said that he had to "go in about five or ten minutes, to
pick up my kids" but that "other than that, . . . I
have time." Mr. Ware said that he would "talk to
[his lawyers] for about 45 seconds or so." After a
"[p]ause" in the proceedings, Mr. Ware told the
court he would "take the settlement."
days after the settlement conference, BankAtlantic's
counsel circulated a draft of the written settlement
agreement, but Mr. Ware did not sign the agreement. On May 8,
2012, AE's counsel finally informed BankAtlantic's
counsel that he was "unable to tell you if or when [Mr.
Ware would] sign the settlement agreement." On May 15,
2012, BankAtlantic filed its motion to enforce the settlement
agreement. AE, represented by new counsel, opposed
BankAtlantic's motion, attaching a declaration from Mr.
Ware and arguing that the agreement should not be enforced
because (1) the settlement conference was an improper ex
parte communication, (2) counsel for both parties had
improperly disclosed material confidences, (3) the court and
AE's counsel had exerted undue influence, and (4) Mr.
Ware "was not advised or informed that [AE] had the
right to decline to engage in settlement discussions mediated
by the trial judge."
September 24, 2012, Judge Mott granted the motion to enforce
the settlement agreement. On October 9, 2012, AE filed a
"[m]otion for [r]econsideration" of the order
enforcing the settlement agreement, relying on Superior Court
Civil Rules 59 (e) and 60 (b). The motion was accompanied by
a "Second Declaration" of Mr. Ware. AE also filed a
motion asking the court to seal that Second Declaration and a
motion and accompanying affidavit asking Judge Mott to recuse
himself. Judge Mott denied those various requests on October
8, 2014. On November 6, 2014, AE filed a notice of appeal in
which it designated, as the orders to be reviewed, the (1)
denial of the motion to recuse; (2) denial of the motion to
seal, and (3) denial of the motion for reconsideration. AE
has abandoned its appeal from denial of the motion to seal,
but argues that this court's review should reach the
order granting the motion to enforce as well as the order
primary contentions on appeal are that the trial court erred
in granting the motion to enforce and abused its discretion
in not setting aside the enforcement order because the
agreement was the product of undue influence by AE's
then-counsel and the result of a procedurally unconscionable
begin by deciding what orders are before us for review.
BankAtlantic argues that because AE's Notice of Appeal
did not designate the order enforcing the settlement
agreement as an order being appealed, we may review only the
denial of the motion for reconsideration, as to which our
review is for abuse of discretion. AE contends that the effect
of its timely Rule 59 (e) motion is that we may review both
the denial of the motion for reconsideration and the judgment
enforcing the settlement agreement, notwithstanding that the
latter was not listed on the Notice of Appeal. We are
satisfied that AE has the better of the argument.
rules of this court provide, just as they did at the time AE
filed its Notice of Appeal, that a "notice of appeal
must . . . designate the judgment, order, or part thereof
being appealed." D.C. App. R. 3 (c)(1)(B). However, at
the time AE filed its appeal, Rule 3 (c)(5), reflecting a
2004 amendment,  further provided in pertinent part that:
Parties are encouraged to use Form 1 [which directs the
appellant to enter the "[d]ate of entry of judgment or
order appealed from"] . . ., though the use of a
particular form is not required. Failure to provide any of
the information requested on Form 1 . . . except for the
specification of the party or parties taking the appeal and
the designation of the judgment or order, or part thereof
being appealed, will not deprive the court of
jurisdiction to consider the appeal.
D.C. App. R. 3 (c)(5) (2014) (emphasis added). We said in
Vines that notwithstanding our general "liberal
construction" of Rule 3, the warning contained in
subsection (c)(5) obliged us to limit our review to the
orders designated in the appeal notice. See 935 A.2d
at 1083. BankAtlantic relies on Vines in arguing
that the order enforcing the settlement agreement ...