¶17 (dissenting) I am unable to conclude one way or the other on this record whether these parties reached a settlement agreement and I, therefore, respectfully dissent.
Procedural Posture
¶18 First, the matter came before the trial court on what the plaintiff styled as “Plaintiff’s Motion to Enforce Settlement Agreement.” Clerk’s Papers (CP) at 7. The motion was supported by affidavits and live testimony from both the lawyers and the parties involved. But as I read this record, the parties asked for a ruling as a matter of law and the court ruled, as a matter of law, that there was no contract. The court entered no findings of fact or conclusions of law. There is only a “Memorandum Decision,” CP at 67-69, and an “Order Denying Plaintiff’s Motion to Enforce Settlement Agreement.” CP at 70.
¶19 For me then, the posture of the case is the same as the posture of the case in Brinkerhoff v. Campbell, even though there the court specifically noted that the evidence consisted “entirely of affidavits and the proceeding [was] similar to a summary judgment proceeding.” Brinkerhoff v. Campbell, 99 Wn. App. 692, 696, 994 P.2d 911 (2000). Whether there is live testimony or not, when the court *368decides a question as a matter of law (here, was there a contract?), then it seems to me that our review should be de novo. Lavigne v. Green, 106 Wn. App. 12, 16, 23 P.3d 515 (2001).
¶20 UnclePDog, LLC, urges that the standard of review here is abuse of discretion. Resp’t’s Br. at 10. And, indeed, that idea finds support in In re Patterson.1 Of course, the standard of review is substantial evidence if we are asked to review findings of fact. Brewer v. Fibreboard Corp., 127 Wn.2d 512, 525, 901 P.2d 297 (1995). But there are no findings of fact in this record. And, therefore, there is nothing for Cristi Veith to assign error to or for us to review for substantial evidence.
¶21 The standard of review would be de novo if the questions raised are questions of law — again, here whether there was or was not a contract. Lavigne, 106 Wn. App. at 16; Brinkerhoff, 99 Wn. App. at 696. I would review the court’s ruling de novo.
Court’s Memorandum Decision
¶22 Here is what the trial judge wrote in his memorandum decision:
In 2005 UnclePDog retained Michael Blue to represent its interests. Mr. [Michael] Maurer [the lawyer for the plaintiff] and Mr. Blue exchanged settlement proposals and possible agreements prior to February 8, 2006. Essentially, the two parties appeared to have agreed to a concept of a stipulated judgment with a covenant not to execute, together with an assignment from UnclePDog of its rights against its own insurance carrier. The details of the settlement were complex and involved questions of filing of the judgment, impact on the credit of UnclePDog’s, confidential[ity], and the preparation of a satisfaction of judgment. It was apparent that the Plaintiff was interested in getting a settlement that would allow the Plaintiff to attack the insurance carrier for bad faith. UnclePDog was interested in protecting its business enter*369prise. Accordingly, the parties[’] approaches] to the settlement w[ere] quite different from each other.
The Court finds that the two parties involved did have a basic agreement as to the outlines of an agreement. The Court also finds the matter wasn’t completely resolved. Although Plaintiff’s counsel asserts he would have agreed to various items raised by UnclePDog, nonetheless, these terms had not been resolved and were clearly material.
There are some concerns raised by the manner in which Mr. Blue handled communications with Mr. Maurer. He was not as clear as he could have been with what was agreed to, what was not, and what still might need to be reviewed by UnclePDog’s business lawyers. His acts could lead to suspicion that decisions were being based on obtaining coverage rather than resolving the case. Still, there is no evidence to suggest he did not act in good faith.
CP at 69.
Contract Formation
¶23 We have already held that “[i]f the intention of the parties is plain and the terms of a contract are agreed upon, then a contract exists, even though one or both of the parties may have contemplated later execution of a writing.” Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383 (1983).
¶24 But the next question here is the more difficult one. UnclePDog argues that the lawyer representing it in Washington, Mr. Blue, did not have authority to enter into any settlement agreement. And any agreement was therefore contingent on the approval of its owner and its Virginia counsel. Again, there are no findings of fact here on whether that was, first of all, an essential element of the agreement or, if it was, whether the parties agreed to the contingency. The second stumbling block to formation of an enforceable agreement urged by UnclePDog is the failure to agree on whether and how the judgment would be filed for record. UnclePDog argues that confidentiality was an essential element of any agreement and the failure to resolve that shows there was no meeting of the minds.
*370¶25 Ms. Veith maintains that the essential elements of this contract were UnclePDog’s confession of judgment, UnclePDog’s assignment of any insurance bad faith claim against its insurer, Montgomery Insurance Company, and her agreement not to execute on the judgment. And Ms. Veith maintains that all of that was agreed to. Moreover, Ms. Veith showed that even if filing of the judgment and confidentiality were essential elements of any agreement, Ms. Veith had agreed on the terms suggested by UnclePDog’s lawyer, Mr. Blue.
¶26 A lawyer has the power to bind his client to a settlement. Stottlemyre, 35 Wn. App. at 172. That lawyer here was Mr. Blue. And Ms. Veith is correct that the essential agreement here had been reached — a stipulated judgment, a covenant not to execute, and assignment of UnclePDog’s claims (whatever they might be) against Montgomery Insurance. The record does not show whether UnclePDog’s allegedly unresolved, material terms were actually essential (and why) or actually agreed to by Ms.Veith’s attorney (and when). It is certainly not developed sufficiently for me to conclude that there was, or was not, a contract of settlement here. Multicare Med. Ctr. v. Dep’t of Soc. & Health Servs., 114 Wn.2d 572, 586 n.24, 790 P.2d 124 (1990) (“Ordinarily, the existence of mutual assent is a question of fact.”); Pietz v. Indermuehle, 89 Wn. App. 503, 519, 949 P.2d 449 (1998) (“If the parties’ intention is clear and they have agreed upon the terms of a contract, then a contract exists, even though one or both of the parties may have contemplated formalizing it through the execution of a written document.”).
¶27 Those contentions suggest for me questions of fact, particularly in light of the line of cases beginning with Berg v. Hudesman2 (“extrinsic evidence is admissible as to the entire circumstances under which the contract was made, as an aid in ascertaining the parties’ intent”).
*371¶28 I would then reverse and remand for trial on the question of whether a contract was formed and, if so, what the terms were.
Review denied at 165 Wn.2d 1005 (2008).
In re Patterson, 93 Wn. App. 579, 585-86, 969 P.2d 1106 (1999).
Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990).