Bonnigson v. Bonnigson
Filed 7/12/13 Bonnigson v. Bonnigson CA4/2
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION TWO
KATHLENE
A. BONNIGSON,
Plaintiff and Respondent,
v.
LAWRENCE M.
BONNIGSON,
Defendant and Appellant.
E053237
(Super.Ct.No. RIP094670)
OPINION
APPEAL from the Superior
Court
of
Riverside
County. Thomas H.
Cahraman, Judge. Affirmed.
Lawrence M. Bonnigson, in pro. per.,
for Defendant and Appellant.
Kathlene A. Bonnigson, in pro. per.;
Bentler Mulder and Christopher Mulder for Plaintiff and Respondent.
After a half-day court trial, the
trial court ruled that an oral settlement negotiated by the parties was a
binding contract. Defendant and
appellant Lawrence M. Bonnigson (Lawrence) appeals, contending that there was
no binding contract because the parties had only agreed on a settlement amount
but had not agreed on the other terms of the settlement agreement, including a
hold harmless clause and dismissal of a cross-petition.
I
FACTS
On October 31, 2008,
plaintiff and respondent Kathlene A. Bonnigson (Kathlene) and her daughter,
Kelsey Craven, filed a petition requesting an accounting of the Theodore M. and
Evelyn J. Bonnigson Living Trust dated March 18, 1997. The petition alleged mismanagement of the
trust assets by Lawrence
both personally and as trustee.
as trustee, a full and complete accounting of the trust, and other relief. In October 2009, Lawrence
filed a cross-petition.
Discovery and settlement negotiations culminated
in June 2010, at the scheduled deposition of Lawrence. During that deposition, Lawrence
accepted Kathlene’s settlement offer of $395,000. As discussed, post, Lawrence
believed that he was only agreeing to pay $395,000. Kathlene’s attorney believed the parties had
a binding settlement agreement. Although
Kathlene’s attorney prepared a written settlement agreement, none was ever
signed.
The dispute was eventually submitted to the
trial court and heard on November
12, 2010.
The trial court found a binding oral settlement for $395,000.
Accordingly, the trial court entered
a judgment requiring Lawrence
to pay the sum of $395,000 within 30 days.
Upon the receipt of that sum, petitioners were ordered to dismiss their
petition with prejudice. Upon filing of
that dismissal, Lawrence
was ordered to file a dismissal of his cross-petition. The judgment also provided that petitioners
were to recover costs.
name="_ftnref2" title="">[2]
II
STANDARD OF REVIEW
In Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, our Supreme
Court described our role as follows: “In reviewing the evidence on such an appeal all conflicts
must be resolved in favor of the respondent, and all legitimate and reasonable
inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked
principle of law, that when a verdict is attacked as being unsupported, the
power of the appellate court begins and ends with a determination as to whether
there is any substantial evidence, contradicted or uncontradicted, which will
support the conclusion reached by the jury.
When two or more inferences can be reasonably deduced from the facts,
the reviewing court is without power to substitute its deductions for those of
the trial court. [Citations.]†(Id.
at p. 429.) The same is true when
the trial court determines the facts after hearing
ed. 2008) Appeal, § 365 et seq., p. 421 et seq.)
Respondent cites a more current
statement of this enduring principle in In
re Zeth S. (2003) 31 Cal.4th 396, 405 and Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1633.
Generally, our role is to apply the
law to the facts. (See generally 9
Witkin, Cal. Procedure, supra, § 322,
pp. 369-370.) In this case, for example,
the trial court determined the facts, and we apply the law of contracts to
those facts.
III
THE TRIAL
At trial, Lawrence testified that he
sent petitioners’ counsel, Christopher Mulder (Mulder), an e-mail after June
23, 2010, the first day of his deposition.
The e-mail asked for an offer of less than the previously discussed sum
of $399,000. The parties met the next
day, June 24, before the deposition was to begin. At trial, Mulder asked: “Essentially, we offered [that] you would pay
three ninety-five to the petitioners and we would dismiss all claims against
you; that was your understanding, correct?â€
Lawrence answered, “Yes.â€
Although Lawrence did not accept that offer at
that time, the parties decided to cancel the deposition. Instead, they informally reviewed the
evidence that petitioners intended to produce at trial. While going through the documents, Lawrence
raised his hand, caught his breath, and said, “‘I’ll pay the three
ninety-five.’†Lawrence testified that
he assumed that if he paid petitioners, they would dismiss the lawsuit. Kathlene testified that her understanding of
the terms of the settlement were that “my brother would pay $395,000 and that
we would be dismissing the petitions against him.†In their trial brief, petitioners stated,
“The material terms of this offer were that Respondent would pay Petitioners
$395,000 (in total) and Petitioners would dismiss the Petition—this would end
the litigation.â€
The parties then agreed that Mulder
would prepare a settlement agreement,
and Lawrence would wait to sign it.
Instead, Lawrence left and called Mulder a few minutes later. Lawrence then left a voicemail message for
Mulder, which said that he “repudiated†the offer until he had the chance to
review it with his attorney. Mulder
recalled that they had a telephone conversation: “I absolutely remember that his reasoning was
he wanted to show the settlement agreement to an attorney he had been
consulting with. And I had no problem
with him showing a settlement agreement to an attorney that he had been
consulting with.â€
Subsequently, Mulder sent Lawrence a
proposed seven-page settlement agreement.
Mulder’s e-mail said: “Attached
is the settlement agreement. It contains
the provisions we agreed on in principle—namely the amount ($395,000) you pay
to the Petitioners, they give you a release of all claim[s] and right to the
Bonnigson and McMillan Trusts, you take all responsibility for debt and claims
against the Trust by any other party (creditors, taxing agencies, etc.).â€
None of the latter provisions had
been discussed on June 24. For example,
the proposed agreement provided that petitioners would not be liable for any
trust liabilities, and that Lawrence would indemnify them from any such liabilities. It further provided that petitioners would
not be responsible for tax liabilities, and that Lawrence would be responsible
for all such liabilities. It also
provided that “Larry shall deliver to Kathlene the cremains of Evelyn Jean
Bonnigson at the same time the settlement draft is delivered.â€
Mulder testified that various versions of the
settlement agreement were subsequently exchanged. None were ever signed.
Lawrence argued that because of the extra terms,
there was “no meeting of the minds†and, therefore, no settlement
agreement. He stated that he was
concerned about several proposed terms of the trust and especially the tax
provisions.
The trial court responded: “Clearly, this document in Paragraph 17 and
18 added some terms that might have been advantageous to the clients of Mr.
Mulder, and I didn’t hear anything about those terms being in the oral
agreement reached the day—the same day or the day before.†The trial court then tentatively concluded
“that there was a meeting of the minds on the $395,000 being paid by you in
exchange for a dismissal of the claims set forth in this case.†After further discussion, the trial court
adopted the tentative opinion set forth, ante.
IV
DISCUSSION
Lawrence’s first argument is that
“[a]lthough my sister and I had agreed upon a settlement figure, I had not
agreed to a ‘hold harmless’ clause in the agreement submitted for my signature
the following day.â€
We agree that the evidence and the
trial court’s ruling clearly supports this assertion.
agreement and no evidence that a written settlement agreement was ever
signed. The issue is the legal effect of
these factual findings.
name="_ftnref5" title="">[5]
Lawrence relies on
98 Cal.App.3d 604.
name="_ftnref6" title="">[6] In that case, Olsen sued Greyhound Lines for
injuries she sustained when a Greyhound bus collided with a car in which she
was riding. At a settlement conference,
she agreed to settle the case for $39,500.
(Id. at p. 606.) Releases and draft settlement agreements were
sent to Olsen, but she refused to sign them, objecting to a proposed hold
harmless agreement. (
Greyhound’s counsel testified that the settlement would not have
occurred without the execution of the releases.
In other words, the releases and the hold harmless clause were integral
parts of the settlement agreement. (
trial court’s conclusion that Olsen had not agreed to the terms of the proposed
settlement. (Ibid.)
Lawrence contends that the same is
true here, i.e., the terms of the settlement agreement were an integral part of
the contract. There is no evidence in
this case, however, that suggests the terms of the settlement agreement here
were an integral part of the agreement.
As the trial court found, based on
the testimony, the parties only agreed to settle the case for $395,000. They assumed that the agreement would be
reduced to writing. It can be inferred,
from the fact that the writing was going to be prepared within an hour and a
half and signed on the same afternoon, that it was contemplated to be a very
brief document.
In any event, the terms of the settlement
agreement were not otherwise discussed, and there was no evidence that any such
terms were part of the oral agreement.
The fact that there were extensive further negotiations over the terms
of the settlement agreement also indicates that the terms were not fixed or
even considered at the time of the oral agreement.
Lawrence mischaracterizes his
statement that he would settle for $395,000 as an offer. The record shows that the offer was made
earlier by petitioners, and Lawrence accepted that offer. There was, therefore, an
assumption of the parties that the payment would end the litigation.
Lawrence relies on
Cal.App.2d 719. In that case, a series
of letters between the parties was found to be too vague and uncertain to
constitute a contract. (
the parties, which must be mutual [citation], no contract can exist [citation]. Consent cannot be mutual unless all parties
agree upon the same thing in the same sense [citation].†(Id.
at p. 726, citing Civ. Code, §§ 1565, 1550, 1580.) From this foundation, the opinion cites the
well-established rule that the acceptance must exactly match the offer. If not, it is merely a counteroffer. (Apablasa
v. Merritt & Co., at p. 726.)
In the present case, the acceptance
(“‘I’ll pay the three ninety-five’â€) was unequivocal and was not a qualified
acceptance. We therefore agree with the
trial court that an oral agreement was reached at that time.
Nevertheless, Lawrence argues that
the terms of the settlement document to which he had not agreed were merely a
counteroffer by petitioners. We
disagree. First, as discussed,
and Lawrence accepted the offer without reservation. Second, the argument assumes that the terms
of the draft settlement document were material terms. We find no evidence supporting this argument.
Lawrence cites Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th
348. In that case, the issue was whether
the parties had entered into an enforceable
agreement to arbitrate. (
agreement. (Ibid.) In a section entitled
“General Principles of California
Contract Law,†the court said:
“(4) When it is clear, both from
a provision that the proposed written contract would become operative
as from any other evidence presented by the parties that both parties
contemplated that acceptance of the contract’s terms would be signified by
signing it, the failure to sign the agreement means no binding contract was
created. [Citations.] This is so even though the party later sought
to be bound by the agreement indicated a willingness to sign the
agreement. [Citation.] On the other hand, if the respective parties
orally agreed upon all of the terms and conditions of a proposed written
agreement with the mutual intention that the oral agreement should thereupon
become binding, the mere fact that a formal written agreement to the same
effect has not yet been signed does not alter the binding validity of the oral
agreement. [Citation.] [¶] (5) Whether it was the parties’ mutual intention
that their oral agreement to the terms contained in a proposed written
agreement should be binding immediately is to be determined from the
surrounding facts and circumstances of a particular case and is a question of
fact for the trial court.
[Citations.] Evidence as to the
parties’ understanding and intent in taking what actions they did take is
admissible to ascertain when or whether a binding agreement was ever
reached. [Citations.]†(Id.
at pp. 357-358.)
The trial court here proceeded to
determine that the parties possessed the mutual intent to settle the case for
Lawrence’s payment of $395,000 in return for petitioners’ dismissal of the
action. Its implied finding, which is
fully supported by the evidence, is that the terms of the settlement agreement
(which had not yet even been written) were not a material term of the contract.
Lawrence also argues that the trial
court should not have required him to dismiss his cross-petition as part of the
judgment. However, as the trial court
noted, there was testimony from both sides that they just wanted to put an end
to the litigation. The trial court said: “There’s no doubt in my mind that everybody
thought the whole case was settling for the amount of money that was discussed,
and that the contract applied to all aspects of the dispute.†The evidence fully supports the trial court’s
decision to require Lawrence to dismiss his cross-petition.
We therefore conclude that the trial
court properly found that the parties reached an oral agreement to settle the
litigation for $395,000 in return for dismissal of the litigation, including
dismissal of the cross-petition. The
judgment on those terms was factually and legally correct.
V
DISPOSITION
The judgment is affirmed. Respondent shall recover her
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Kathlene
and Lawrence are siblings. Kelsey Craven
is a beneficiary of the trust and is not involved in this appeal. Kathlene and Kelsey are also referred to as
petitioners in this opinion.
subsequently waived costs, and Lawrence agreed to abandon any contention
concerning costs in this appeal.
