Foretich v. American Broadcasting Companies

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 1999 Decided December 28, 1999

No. 99-7010

Eric A. Foretich,
Appellant

v.

American Broadcasting Companies, Inc., et al.
Appellees

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Consolidated with
99-7011, 99-7012, 99-7013

Appeals from the United States District
Court for the District of Columbia
(No. 93cv02620)
(No. 94cv00037)

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Elaine J. Mittleman argued the cause for the appellant.

Paul R. Taskier argued the cause for the appellees. Adam
Proujansky was on brief for the appellees.

Before: Sentelle, Henderson and Garland, Circuit
Judges.

 Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Eric A. Fore-
tich, D.D.S., M.A., (Foretich) appeals the district court's order
denying his motion for extension of time to file a notice of
appeal. He also challenges that court's assertion of jurisdic-
tion over, and resolution of, a subsequent motion of the
appellees (collectively "ABC")1 requesting enforcement of a
settlement agreement. Foretich seeks reversal of the order
denying his motion for extension of time to file a notice of
appeal and requests that this court vacate the district court's
order enforcing the settlement for lack of jurisdiction or, in
the alternative, reverse the order. We conclude that the
court below had jurisdiction to entertain the motion to en-
force the settlement agreement, which the court properly
granted. The terms of the settlement agreement render
moot Foretich's challenge to the order denying him an exten-
sion of time to file a notice of appeal. Accordingly, we affirm
the district court in all respects.

I.

In December 1993 Foretich brought a defamation action
against ABC for the broadcast of a television movie that
depicted events surrounding Foretich's court battles with his
former wife regarding the custody of their daughter. Follow-
ing innumerable discovery disputes, the district court granted
ABC's motion for summary judgment on all counts in an
order entered on October 22, 1997. Foretich did not file a
timely notice of appeal. ABC, however, filed a motion seek-
ing to recover attorney's fees and certain expenses on Octo-
ber 31 and submitted a supplemental bill of costs on Novem-
ber 4.

Also on October 31, settlement negotiations began anew at
the behest of Foretich's lawyer. Eventually, by letter dated
November 17, Foretich's counsel communicated the following:

__________
1 The appellees include American Broadcasting Companies,
Inc., Capital Cities/ABC, Inc. and ABC Holding Company.

 This is to confirm our telephone conversation this after-
noon that Dr. Foretich accepts the "walk away" offer
made to him in your letter of November 12, 1997, which
offer you agreed to keep open today.... In reliance on
your acceptance [sic] of the offer, we have not filed today
on behalf of Dr. Foretich a Notice of Appeal.

Joint Appendix (JA) 367. The "walk away" offer reflected in
the November 12 letter demanded, inter alia, that Foretich
forego an appeal and "execute a full, general release, from the
beginning of time to the end of time, for any person or entity
involved in any way with the ... broadcast ... of the
docudrama, including a covenant not to sue." JA 359-60. In
return, ABC agreed to abandon its effort to recover costs.

Counsel for ABC sent a document entitled "Agreement and
General Release" to counsel for Foretich on November 21.
During the following weeks, counsel engaged in several tele-
phone conversations and neither voiced objection to the set-
tlement document as an accurate reflection of the parties'
understanding. On December 16, however, counsel for Fore-
tich communicated his client's refusal to sign because Fore-
tich objected to executing a release encompassing future
broadcasts of the docudrama. In the end, Foretich disputes
the district court's finding that correspondence between coun-
sel led to a meeting of the minds. See JA 469. The next day,
Foretich filed a motion for extension of time to file a notice of
appeal. The 30-day period had expired weeks earlier on
November 21. The district court denied the motion in an
order entered on January 16, 1998. Foretich filed a notice of
appeal of that order on February 11, 1998.

ABC's motion for fees and costs remained pending on
December 24, 1997 when ABC filed a motion seeking enforce-
ment of the settlement agreement, imposition of sanctions
and expedited consideration. Applying principles of contract
law, the district court found the parties had entered into a
binding settlement agreement that, with minor exception, the
Agreement and General Release embodied.2 Thus, in its

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2 The district court found overbroad the provision releasing
ABC from liability for all actions "relating to any aspect of the

order of July 30, 1998,3 the court granted in relevant part
ABC's motion to enforce the settlement agreement, which
included a general release as to future broadcasts. The court
also denied ABC's motion for sanctions and, pursuant to the
settlement agreement, deemed the motion for costs and fees
withdrawn. Additionally, in an order entered January 6,
1999, the court denied Foretich's motion to alter or amend
the judgment granting ABC's motion to enforce. On January
22, 1999 Foretich filed a notice of appeal addressed to the
order entered on January 6.

II.

This court reviews jurisdictional issues de novo. See Board
of Trustees of Hotel & Restaurant Employees Local 25 v.
Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C. Cir. 1996).
With regard to the district court's order enforcing the settle-
ment, we review factual findings for clear error and legal
issues de novo. See generally Serono Lab. v. Shalala, 158
F.3d 1313, 1317-18 (D.C. Cir. 1998).

A.

Before reaching the merits of the district court's order
partially granting ABC's motion to enforce the settlement, we
must decide whether the district court had jurisdiction to

__________
Morgan-Foretich controversy and/or its portrayal in the Docudra-
ma (including anything referenced in the litigation.)." JA 467. It
concluded that the provision "expands the release into territory not
discussed in the letters," id., and that Foretich had not agreed to
that particular provision. See id.

3 Multiple motions to extend time to file a notice of appeal and
a motion to strike one of those motions occupied the district court
during the seven-month interim between ABC's filing its motion to
enforce and the court's disposition.

consider it.4 As Foretich points out, the district court grant-
ed summary judgment to ABC in an order entered on Octo-
ber 22, 1997, more than two months before ABC filed the
motion at issue. Still pending before the district court when
the subject motion was filed, however, was ABC's motion for
attorney's fees and costs. ABC contends the district court
necessarily had ancillary jurisdiction because resolution of the
motion to enforce the settlement agreement was necessary to
determine whether the pending motion for fees and costs
should be deemed withdrawn.

No jurisdictional foundation inheres in a motion to enforce
a settlement agreement that led to an earlier dismissal of the
underlying action. See Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 381 (1994). The Supreme Court nonetheless
acknowledged in Kokkonen that if the motion is connected to
the dismissed action, the exercise of ancillary jurisdiction over
that motion may be proper. The Court mentioned a dismiss-
al order that expressly incorporates the settlement agree-
ment as such a jurisdictional "hook." See id. Addressing
ancillary jurisdiction more broadly, the Court stated that the
doctrine "recognizes federal courts' jurisdiction over some
matters (otherwise beyond their competence) that are inci-
dental to other matters properly before them." Id. at 378.
The Court found that a district court may exercise ancillary
jurisdiction either "to permit disposition by a single court of

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4 ABC challenges our jurisdiction over Foretich's appeal of the
July 30, 1998 order, asserting that Foretich did not designate the
order in his notice of appeal and that his subsequent filings do not
manifest an intent to appeal the order. Considering that Foretich
unquestionably seeks review of the issues that order fully addressed
and that he listed the order on his Docketing Statement as an
appealed order, JA 591, we conclude that he satisfies the standard
enunciated in Brookens v. White, 795 F.2d 178, 180-81 (D.C. Cir.
1986), where this court recognized the well-settled rule that a
mistake in designating the specific judgment or order appealed
from should not result in loss of the appeal as long as the intent to
appeal from a specific judgment can be fairly inferred from the
appellant's notice (and subsequent filings) and the opposing party is
not misled by the mistake.

claims that are, in varying respects and degrees, factually
interdependent" or "to enable a court to function successfully,
that is, to manage its proceedings, vindicate its authority, and
effectuate its decrees." Id. at 379.

Here, the district court could not incorporate the settle-
ment agreement into its dismissal order because the agree-
ment was negotiated after the order had been entered. Nev-
ertheless, properly pending before the court when ABC's
motion to enforce was filed was its motion for fees and costs.
See Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228,
1237 (10th Cir. 1998) ("Attorney's fees awards are collateral
matters over which the district court retains jurisdiction.")
(citing Garcia v. Burlington Northern R.R. Co., 818 F.2d 713,
721 (10th Cir. 1987)). If enforced, the settlement agreement
would require withdrawal of ABC's motion for fees and costs.
See, e.g., JA 286. The motion to enforce, therefore, could
moot the motion for fees and costs and, concordantly, any
judgment on that motion. The motions were thus inter-
related and resolution of the motion to enforce allowed the
court to resolve the motion for fees and costs in a manner
that "effectuate[d] its decree[ ]." Kokkonen, 511 U.S. at 379.
Accordingly, we conclude the district court had jurisdiction
over the motion to enforce the settlement agreement.5

B.

On the merits, Foretich argues that the district court erred
in its disposition of the motion to enforce the settlement
agreement, that is, in finding an agreement existed. At oral
argument and in his submissions thereafter, Foretich disput-
ed neither that his counsel had authority to enter into an
agreement nor that both parties thought an agreement had,
via counsel's correspondence, been reached. See Decl. of
Richard E. Jordan, Esq., October 20, 1999, p p 9, 12, 13.
Foretich does dispute that the parties in fact reached a
meeting of the minds on certain material terms. He contends

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5 We note that the order at issue simply declares that a valid
settlement agreement existed. Our affirmance is likewise limited
and we do not reach the closer issue of whether enforcing the
settlement agreement with affirmative relief such as a mandatory
injunction would have been within the district court's jurisdiction.

that their different understandings came to light when he
read the Agreement and General Release ABC drafted after
the parties agreed to the "walk away" offer. See id. p 14; see
also JA 413, p 4. Specifically, Foretich asserts that he never
agreed to a release permitting future broadcasts of the
docudrama.6

The November 17 letter from Foretich's counsel estab-
lished Foretich's acceptance of the offer made in the Novem-
ber 12 letter from counsel for ABC: "This is to confirm our
telephone conversation this afternoon that Dr. Foretich ac-
cepts the 'walk away' offer made to him in your letter of
November 12, 1997." JA 367. The November 12 letter
provides in part that Foretich is to forego an appeal of the
order granting ABC summary judgment and to "execute a
full, general release, from the beginning of time to the end of
time, for any person or entity involved in any way with the
... broadcast, cablecast,7 etc. of the docudrama, including a
covenant not to sue" while ABC is to abandon its effort to
recover costs. JA 359-60. Following the letter from Fore-
tich's counsel, ABC prepared the Agreement and General
Release which expressly included "all future sales, licenses,
publication, distribution, exploitation, broadcast, cablecast and
reproduction of the Docudrama and all versions and all
elements thereof." JA 371.

General principles of contract law govern our resolution of
this issue. See Gaines v. Continental Mortgage & Inv. Corp.,
865 F.2d 375, 378 (D.C. Cir. 1989) (quoting Village of Kakto-
vik v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982)). Parties may
enter into a binding agreement that later is memorialized in a
written instrument. See Anchorage-Hynning & Co. v. Mor-
ingiello, 697 F.2d 356, 363 (D.C. Cir. 1983). In this case, the

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6 In his reply brief, Foretich argues that the trial court "should
have taken evidence to resolve contested issues of fact." Reply
Brief at 13. Even considering this untimely argument, Foretich
admitted at oral argument that he did not request a hearing below.

7 The docudrama had not previously been cablecast. See JA
441. Thus the release contemplated by the November 12 letter
necessarily included future airings of the docudrama.

parties disagree on the extent of the release agreed upon and
reflected in the correspondence between counsel. Although it
speaks in the broadest temporal terms ("from the beginning
of time to the end of time"), the November 12 letter does not
expressly include future broadcasts in its release provision.
Thus, the meaning of the term "full, general release" is not
unambiguous, JA 359, and we may use parol evidence, if any
exists, to determine its meaning. See Nofziger Communica-
tions, Inc. v. Birks, 989 F.2d 1227, 1230 (D.C. Cir. 1993)
("[W]hen the meaning of a contract provision is facially
uncertain, a court may resort to an examination of extrinsic
evidence, such as statements, course of conduct, and contem-
poraneous correspondence, aimed at discerning the intent of
the parties.") (quoting Farmland Indus., Inc. v. Grain Bd. of
Iraq, 904 F.2d 732, 736 (D.C. Cir. 1990)). The affidavit of
ABC's counsel, which was before the district court, manifests
that the parties had a lengthy history of settlement negotia-
tions and proposals, all of which contemplated a release
encompassing future broadcasts of the docudrama.8 See JA
334-42. In light of ABC's unwavering insistence upon such a
release over the course of settlement discussions, Foretich's
reading of the broad language ABC's counsel used in the
November 12 letter, so as not to include future broadcasts, is
not reasonable. The district court did not err in granting (in
relevant part) ABC's motion to enforce the settlement agree-
ment.

C.

The parties' settlement agreement dictates that Foretich
"forgo any appeal of the October 16, 1997 Order [entered
October 22, 1997] granting summary judgment" to ABC in

__________
8 In opposition to ABC's motion below, Foretich relied on his
assertion that he "certainly would never agree to such terms as to
permit future broadcasts." JA 413. The record, however, belies
his assertion. Nine months earlier Foretich had included such
terms in his counter-offer to ABC's offer that he had rejected solely
on monetary grounds. Compare JA 351 (ABC settlement offer of
February 3, 1997), with JA 353 (Foretich counter-offer of February
5, 1997).

this action. JA 455. Our conclusion that the district court
properly enforced the agreement therefore renders moot
Foretich's challenge to the district court's order denying his
motion to extend time to file a notice of appeal. See Douglas
v. Donovan, 704 F.2d 1276, 1278-79 (D.C. Cir. 1983).

For the foregoing reasons, the district court's order of
January 16, 1998 denying Foretich's motion to extend time to
file a notice of appeal is vacated as moot, see United States v.
Munsingwear, 340 U.S. 36 (1950), and the district court's July
30, 1998 order granting ABC's motion to enforce the settle-
ment agreement is affirmed.9

So ordered.

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9 Both parties have filed motions since oral argument: ABC
moved to strike Foretich's letter and supporting affidavit filed
pursuant to Rules 10(e) and 28(j) and Foretich filed a motion to
strike ABC's Reply Memorandum (filed on December 1, 1999). We
deny both motions.