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EITEL v. MCCOOL

September 10, 1984

Gary R. EITEL, Plaintiff,
v.
William D. McCOOL, Defendant



The opinion of the court was delivered by: MCNICHOLS

 ROBERT J. McNICHOLS, Chief Judge.

 Plaintiff and defendant enjoyed an attorney/client relationship over the course of some years which commenced while each resided in Alaska. Due to a number of factors not here relevant, that relationship began to deteriorate and finally broke down completely in late 1983. Mr. Eitel eventually commenced the instant action. The ink on the complaint was hardly dry when a purported settlement agreement was reached. It is the existence and terms of that agreement which supply the basis for defendant's pending motion for an order compelling execution of a general release. Pertinent chronology is as follows:

 
January 17, 1984 -- Mr. Eitel filed a complaint with the Washington State Bar Association alleging certain acts of misfeasance and malfeasance on Mr. McCool's part.
 
April 26, 1984 -- Attorney Scribner, acting on behalf of McCool, offered to settle this impending (but not yet filed) action for: (1) $40,000; (2) stipulated dismissal with prejudice; and (3) execution of a general release. By return letter, plaintiff rejected the offer.
 
May 10, 1984 -- Scribner renewed the offer, noting that it would terminate as of May 25, 1984.
 
May 17, 1984 -- The instant action was commenced.
 
June 18, 1984 -- Attorney Boundy, acting on behalf of defendant's insurance carrier, contacted Mr. Eitel by telephone. According to Boundy's affidavit in support of the instant motion, the terms of his offer were identical to that posed by Scribner. According to Eitel, the agreement contemplated payment of $40,000 and a stipulated dismissal, but not a general release.
 
June 20, 1984 -- A draft for $40,000 was received by George White, an attorney in Texas who had been advising Eitel but who had never appeared of record. *fn1" White turned over the draft and accompanying stipulation forms to Eitel. Eitel then prepared his own form of dismissal and mailed it to Scribner, commenting that he considered the entire matter to now be concluded. Scribner replied that it would not be "concluded" until such time as Eitel signed the general release.
 
July 11, 1984 -- After a series of communications, Eitel came to the conclusion that if Scribner was not going to file the dismissal (which in fact was never filed), then it must have been defendant's intention to proceed with this action notwithstanding the payment of $40,000. Accordingly, Eitel filed a notice of default based on defendant's failure to answer.

 The instant motion then was brought, and oral argument was heard telephonically on August 31, 1984. Having in mind the full record, including all exhibits and affidavits contained therein, as well as representations made during the course of argument, the Court disposes of the issues raised as follows.

 The $40,000 Payment :

 Eitel now contends that his actual out-of-pocket loss attributable to McCool's alleged malpractice is some $400,000, and that he was induced to accept the comparatively nominal sum offered only by reason of economic duress. He asks that his improvident acceptance of the $40,000 be considered a product of such duress, and that the settlement be "rescinded." There are several problems with this approach. First, in view of Eitel's letters to Scribner and to the Bar Association immediately after receipt of the funds, there can be no doubt whatever that plaintiff was prepared to accept the sum offered, and did in fact accept it. External economic pressure cannot serve as a predicate for disregarding what was clearly a meeting of the minds at the formation stage of the ...


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