Terry v. Bacon
269 P.3d 188
Utah Ct. App.2011Background
- Terrys appeal the trial court's order enforcing a January 2009 settlement with Dr. Bacon, Central Utah Clinic, and UVRMC.
- The Terrys allegedly accepted the offer indirectly via former counsel; the defense sent $15,000 and settlement documents, which the Terrys did not sign or cash.
- The court stayed the case for arbitration, but no arbitration occurred.
- Former counsel testified the Terrys authorized acceptance of $15,000; the Terrys deny ever authorizing or accepting the offer.
- Trial court ruled the Terrys waived the attorney-client privilege by contesting authorization and admitted former counsel's testimony, and found a meeting of the minds and enforceable settlement.
- Court memorialized its ruling in an Order Enforcing Settlement Agreement on June 22, 2010, and the Terrys appealed on privilege, meeting of minds, and related arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney-client privilege waiver | Terrys did not authorize or authorize the settlement. | Terrys waived privilege by putting communications at issue. | Waived; privilege narrowed to issue related to authorization. |
| Requirement of writing for settlements | Oral settlements should be unenforceable unless in writing. | Trial record lacks preservation; Reese extension not addressed. | Not addressed due to preservation issue. |
| Meeting of the minds | No meeting of the minds; disputed authorization and terms. | There was a binding agreement to settle for $15,000. | Not clearly erroneous; trial court found intent and authorization. |
| Settlement amount shocks the conscience | Amount is unreasonably low; shocks conscience. | Not preserved for review; no merits addressed. | Waived/preserved issue not addressed. |
Key Cases Cited
- Doe v. Maret, 984 P.2d 980 (Utah 1999) (recognizes waiver when privilege placed at issue (advice of counsel))
- Munson v. Chamberlain, 178 P.3d 848 (Utah 2007) (overruled on other grounds; discusses privilege scope)
- Reese v. Tingey Construction, 177 P.3d 605 (Utah 2008) (extension of writing requirement for mediated settlements)
- LD III, LLC v. BBRD, LC, 221 P.3d 867 (Utah App. 2009) (meeting of the minds; contract-like requirements)
- Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (9th Cir. 1992) (privilege cannot be used as both sword and shield; fairness)