IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2023 Term 

_____________ 

No. 21-1015 

_____________ 

DAVID A. LEVINE, 

Plaintiff Below, Petitioner, 

V. 

ROCKWOOL INTERNATIONAL A/S, BJØRN RICI ANDERSEN, JEFFERSON 

COUNTY PROSPERITY, INC., ROXUL USA, INC., DANIEL CASTO, RAYMOND J. 

BRUNING, and STEVEN STOLIPHER, 

Defendants Below, Respondents. 

________________________________________________ 

Appeal from the Circuit Court of Jefferson County 

The Honorable Debra McLaughlin, Judge 

Civil Action No. 19-C-139 

REVERSED AND REMANDED 

________________________________________________ 

Submitted: April 19, 2023 

Filed: June 14, 2023 

Brian R. Blickenstaff, Esq.

Turner & Johns, PLLC 

Charleston, West Virginia 

Attorney for the Petitioner 

Michael D. Dunham, Esq. 

Shuman McCuskey Slicer PLLC 

Winchester, Virginia

William R. Slicer, Esq. 

Shuman McCuskey Slicer PLLC 

Charleston, West Virginia 

Attorneys for the Respondents

Kathy M. Santa Barbara, Esq.

The Law Office of Kathy M. Santa 

Barbara, PLLC 

Martinsburg, West Virginia 

Attorney for the Respondents 

Rockwool International A/S, 

Bjørn Rici Andersen, and 

Roxul USA, Inc. 

FILED

June 14, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Jefferson County Prosperity, Inc.,

Daniel Casto,

Raymond J. Bruning, and

Steven Stolipher

JUSTICE BUNN delivered the Opinion of the Court.

JUSTICE ARMSTEAD dissents and reserves the right to write separately.
i

SYLLABUS BY THE COURT

1. “Where the issue of the enforceability of a settlement agreement 

requires the lower court to make findings of fact and apply contractual or other legal 

principles, this Court will review its order and the ultimate disposition under an abuse of 

discretion standard, its underlying factual findings under a clearly erroneous standard, and 

questions of law pursuant to a de novo review.” Syllabus point 2, Triple 7 Commodities, 

Inc. v. High Country Mining, Inc., 245 W. Va. 63, 857 S.E.2d 403 (2021).

2. “Where, from all the evidence and circumstances of the case, it 

appears that the parties to an agreement being negotiated between them intend that, as a 

condition precedent to its becoming binding upon them, it should be reduced to writing and 

signed by the parties, an oral agreement, though it covers all the terms of the proposed 

agreement, is not binding on the parties, until it is reduced to writing, and has been signed 

by all the parties thereto.” Syllabus point 1, Blair v. Dickinson, 133 W.Va. 38, 54 S.E.2d 

828 (1949). 
1

BUNN, Justice:

Petitioner David A. Levine appeals the Circuit Court of Jefferson County’s

November 19, 2021 order enforcing a settlement agreement between him and the 

respondents. He raises one issue on appeal: Whether the court erred when it found that the 

parties entered into a settlement agreement via email and then enforced that agreement. We

conclude that the circuit court should have held a hearing on the matter and reverse and 

remand on those grounds.

I.

FACTUAL AND PROCEDURAL HISTORY

In August 2019, Mr. Levine filed a civil case, numbered 19-C-139, in the 

Circuit Court of Jefferson County. His amended complaint filed in September 2019

included Respondents Rockwool International A/S (“Rockwool”), Bjørn Rici Andersen,

and Roxul USA, Inc. (the Rockwool Respondents); as well as Respondents Jefferson 

County Prosperity, Inc., Daniel Casto, Raymond J. Bruning, and Steven Stolipher (the JCP 

Respondents). During the pendency of this case, two other cases were filed in the Circuit 

Court of Jefferson County: in one, 20-C-129, Mr. Levine filed a civil complaint against the 

JCP Respondents only, while in another, 21-C-2, Mr. Casto filed a civil complaint against 

Mr. Levine and other parties.
2

Two years later, in August 2021, Mr. Levine’s attorney discussed a potential 

settlement with at least one of Mr. Casto’s attorneys. On the morning of August 31, 2021, 

Mr. Casto’s attorney in that matter emailed Mr. Levine’s counsel regarding his “offer for 

global resolution of pending cases/claims with a walk-away between Dan Casto and David 

Levine (and others).” Mr. Casto’s attorney concluded, writing “Speaking for Dan, we 

accept this offer. We will work to put a global draft settlement agreement together for your 

review.” The email did not indicate whether Mr. Levine’s attorney communicated the offer 

via telephone or email.

Less than an hour later on the same day, counsel for the JCP Respondents

sent the following email to Mr. Levine’s attorney:

I received word this morning that your client, David 

Levine, has authorized you to enter into a global settlement 

with [the JCP Respondents and Mark Everhart]. It is my 

understanding that the terms of this agreement are that David 

Levine will drop and dismiss with prejudice all claims set forth 

in 19-C-139 and 20-C-129 and Mr. Casto and Mr. Everhart will 

drop all claims they have pending against Mr. Levine, 

including claims in which this office does not represent Mr. 

Casto. The terms of the settlement will include mutual nondisparagement and confidentially [sic] of the terms of the 

settlement to the extent allowed by WV law. Further, there will 

be no exchange of any money as a result of this settlement. All 

parties will execute a release.

Please confirm that these settlement terms are correct 

and confirm that your client agrees to these terms. If there is 

anything missing, please let me know.

Thank you.
3

Within half an hour, Mr. Levine’s counsel responded via email, “[y]ou are 

correct at [sic] to the terms of the agreement.”

A little more than a week later, counsel for the JCP Respondents again 

emailed Mr. Levine’s counsel, stating “I want to confirm that this settlement is to include 

the Rockwool [Respondents] consistent with dismissal of all claims set forth in 19-C-139. 

I hope to have a release to you for review early next week.” He concluded, “[p]lease let me 

know your thoughts.”

Mr. Levine’s attorney responded via email five days later, on September 13, 

2021. He stated, “[s]orry, last week was interesting. I got your message and the settlement 

would include the Rockwool [Respondents].” On the same day, Mr. Levine’s counsel also 

emailed the Rockwool Respondents’ counsel: “Mr. Levine is contemplating a full 

settlement of all allegations. I just sent an e-mail to [counsel for the JCP Respondents] to 

include the ‘Rockwool [Respondents].’ So I think we are moving to a resolution of this 

issue.”

On September 15, 2021, the Rockwool Respondents’ counsel responded via 

email to Mr. Levine’s counsel, asking to speak to him “to discuss the settlement 
4

agreement.” She sought a phone call, noting “I’d like to discuss with you prior to discussing 

with [the JCP Respondents’ attorney] since I know what he will say on my questions. I 

need to know Mr. Levine’s position.” She concluded that “[w]e, too, would like to get this 

signed by the end of the week so I’m working with that in mind.”

The next day, on September 16, 2021, counsel for the JCP Respondents 

emailed Mr. Levine’s attorney, copying other involved attorneys and at least one party 

involved in the case:

Attached please find a proposed release for this matter. 

To confirm, Mr. Levine has agreed to a settlement where he 

dismisses all claims against [all Respondents and Mark 

Everhart] for no money and in exchange, Mr. Casto and Mr. 

Everhart will drop all claims they have pending against Mr. 

Levine. The terms of the settlement include mutual nondisparagement and all parties will pay their own attorneys’ fees. 

I have presumed that the confidentiality provision was 

requested by Mr. Levine, however, we are prepared to remove 

confidentiality as a term if you do not feel it is required.

Please let me know if you have any proposed revisions 

to the release.

Slightly more than an hour later, the Rockwool Respondents’ counsel 

emailed Mr. Levine’s counsel, asking him to examine motions to extend time for his 

approval. She continued: 

Also, to confirm our telephone conversation of earlier 

today . . . it is my understanding that as of that time you had not 

seen the proposed settlement agreement drafted by [counsel for 

the JCP Respondents] with the input of other defense counsel, 
5 

but that you did understand that the agreement was that all of 

these matters would be settled with no funds exchanging hands 

to accomplish that settlement. The only issue was whether Mr. 

Levine wanted confidentiality provisions in the agreement (it 

was drafted to include such provisions). This is not important to 

Rockwool and from [counsel for the JCP Respondents’] email 

of earlier today apparently it is not important to any of the other 

defendants. 

On October 6, 2021, the Rockwool Respondents’ counsel emailed Mr. 

Levine’s attorney, inquiring as to the status of the settlement agreement: 

When we spoke on Monday, you indicated that we 

should touch base today since you thought by then you would 

have spoken with Mr. Levine. I just called and had to leave a 

voicemail message for you. We need to know the status of 

getting this settlement agreement signed. Is there some problem 

with it? Mr. Levine has already agreed to the settlement, so we 

need to know if there are terms in the agreement that you or he 

have a problem with. Please let me know as soon as possible. I 

look forward to hearing back from you today. 

Mr. Levine’s counsel responded the next day, emailing the Rockwool Respondents’ 

counsel and copying counsel for the JCP Respondents on the email: “I spoke briefly with 

the client today. We are going to talk again tomorrow, I expect some changes that will have 

to be cycled through the other parties. I [should] know more after tomorrow.” 

The JCP Respondents’ counsel sent another email on October 11, 2021, to 

Mr. Levine’s counsel and to the Rockwool Respondents’ counsel, copying an individual 

party: “What if any changes does your client request? You have had the document since 

September 16th. Please let us know today. Thank you.” 
6

On October 15, 2021, the JCP Respondents and the Rockwool Respondents 

filed a written joint motion to enforce the settlement agreement. They requested as relief 

that the circuit court require Mr. Levine to execute the settlement and release agreement, 

dismiss his complaint with prejudice, award attorneys’ fees and costs relating to bringing 

the motion, and other relief as the court wished. Mr. Levine’s written response opposed the 

motion on the grounds of lack of mutual assent, further arguing that the settlement was 

predicated on a written settlement agreement approved by all parties. The parties submitted 

exhibits of emails sent between the parties’ attorneys. No party attached the proposed 

written settlement agreement as an exhibit, although based upon Mr. Levine’s 

representations, it apparently included additional terms, such as an arbitration provision, 

that were not discussed in any emails. The circuit court did not hold a hearing on the 

motion.

On November 19, 2021, the circuit court entered an order granting the motion 

to enforce the settlement agreement in the underlying case, 19-C-139, and entered the same 

order in cases 20-C-129 and 21-C-2. The court examined the two August 31, 2021 emails

between counsel for the JCP Respondents and Mr. Levine’s counsel and found that the 

parties “agreed to all material terms of the agreement and that the parties formed a contract 

to settle all claims.” Ordering that the terms of the agreement were those set forth in the

August 31, 2021 email from the JCP Respondents’ counsel, the court granted the motion 
7 

to enforce the settlement agreement and stated that the agreement resolved and settled all 

claims in the three cases. The court determined that the settlement agreement included the 

following terms: (1) that Mr. Levine would “drop and dismiss with prejudice” all claims in 

the 19-C-139 and 20-C-129 cases, while Mr. Casto and Mr. Everhart would drop “all 

claims they have pending against Mr. Levine;” (2) that “[t]he parties shall commit to 

mutual non-disparagement and [confidentiality] of the terms of the settlement to the extent 

allowed by West Virginia law;” (3) that the parties shall not exchange money; and (4) all 

parties must execute a release. Mr. Levine appealed only in case 19-C-139.

II. 

STANDARD OF REVIEW 

This Court applies the following standard when reviewing a circuit court’s 

order granting a motion to enforce a settlement: 

Where the issue of the enforceability of a settlement 

agreement requires the lower court to make findings of fact and 

apply contractual or other legal principles, this Court will 

review its order and the ultimate disposition under an abuse of 

discretion standard, its underlying factual findings under a 

clearly erroneous standard, and questions of law pursuant to a 

de novo review. 

Syl. pt. 2, Triple 7 Commodities, Inc. v. High Country Mining, Inc., 245 W. Va. 63, 857 

S.E.2d 403 (2021). 
8 

III. 

DISCUSSION 

Mr. Levine contends that the circuit court erred because the settlement lacked 

mutual assent and that the terms required a written settlement agreement. The Respondents 

argue that the settlement agreement was entered into when Mr. Levine’s attorney 

responded to the August 31, 2021, email from the JCP Respondents’ counsel. Given the 

sparse record created in the proceedings below, we find that the circuit court abused its 

discretion by failing to conduct a hearing to develop the evidence as to whether the parties 

had entered an enforceable settlement. 

We recognize and agree with the circuit court that in West Virginia “[t]he 

law favors and encourages the resolution of controversies by contracts of compromise and 

settlement rather than by litigation; and it is the policy of the law to uphold and enforce 

such contracts if they are fairly made and are not in contravention of some law or public 

policy.” Syl. pt. 1, Sanders v. Roselawn Mem’l Gardens, 152 W. Va. 91, 159 S.E.2d 784 

(1968). Furthermore, “settlement agreements are to be construed ‘as any other contract.’”

Burdette v. Burdette Realty Improvement, Inc., 214 W. Va. 448, 452, 590 S.E.2d 641, 645 

(2003) (per curiam) (quoting Floyd v. Watson, 163 W. Va. 65, 68, 254 S.E.2d 687, 690 

(1979)). A contract requires “‘a definite meeting of the minds . . . , since a settlement 

cannot be predicated on equivocal actions of the parties.’” O’Connor v. GCC Beverages, 

Inc., 182 W. Va. 689, 691, 391 S.E.2d 379, 381 (1990) (per curiam) (quoting 15A C.J.S. 
9 

Compromise & Settlement § 7(1) (1967)). However, to have a meeting of the minds, the 

parties must have “the same understanding of the terms of the agreement reached.” Messer 

v. Huntington Anesthesia Grp., Inc., 222 W. Va. 410, 418, 664 S.E.2d 751, 759 (2008) (per 

curiam). 

We have recognized that a settlement agreement can be reached via 

communications between counsel, even when a party does not sign a written settlement 

agreement. See Donahue v. Mammoth Restoration & Cleaning, 246 W. Va. 398, 405, 874 

S.E.2d 1, 8 (2022) (finding that the evidence of emails and voicemail between counsel 

“clearly demonstrate[d] that the parties had ‘the same understanding of the terms of the 

agreement reached.’” (quoting Messer, 222 W. Va. at 418, 664 S.E.2d at 759)). See also

Russell v. Bayview Loan Servicing, LLC, No. 20-0681, 2021 WL 2577498, at *4 (W. Va. 

June 23, 2021) (memorandum decision) (affirming a circuit court’s determination that a 

settlement agreement arose from emails between counsel after a hearing where both 

petitioner and her counsel testified). We also have found that when the parties take steps 

in reliance on an agreement, those steps are evidence as to the existence of the agreement. 

See Donahue, 246 W. Va. at 405, 874 S.E.2d at 8 (finding a settlement agreement had been 

reached when evidence included that a party paid funds to repair water damage in reliance 

on agreement). See also Russell, No. 20-0681, 2021 WL 2577498, at *4 (enforcing 

settlement agreement where the parties informed the circuit court that a settlement 
10 

agreement had been reached and that respondent canceled petitioner’s deposition and 

performed credit repair in reliance on the agreement). 

Despite other indicia of a meeting of the minds, the evidence and 

circumstances may show that the parties intend that an additional condition of the 

agreement is that it be signed and in writing. Syl., O’Connor, 182 W. Va. at 689, 391 S.E.2d 

at 379. As we explained in Syllabus Point 1 of Blair v. Dickinson, 133 W. Va. 38, 54 S.E.2d 

828 (1949)),

Where, from all the evidence and circumstances of the 

case, it appears that the parties to an agreement being 

negotiated between them intend that, as a condition precedent 

to its becoming binding upon them, it should be reduced to 

writing and signed by the parties, an oral agreement, though it 

covers all the terms of the proposed agreement, is not binding 

on the parties, until it is reduced to writing, and has been signed 

by all the parties thereto. 

 

Here, we find that under the facts and circumstances of this case, the circuit 

court erred in concluding that the parties entered into an enforceable settlement where the 

evidence required factual development as to mutual assent. The parties disagree over the 

existence of an agreement and its purported terms. Mr. Levine argues that the August 31, 

2021, email from the JCP Respondents’ attorney included the “broad strokes” of the 

agreement, rather than the entire agreement itself. Mr. Levine’s counsel responded that the 

August 31, 2021, email from the JCP Respondents’ attorney was correct in regard to the 

agreement’s terms. Yet, an earlier message that same day to Mr. Levine’s counsel, from a 
11 

different attorney representing Mr. Casto, discussed putting together “a global draft 

settlement agreement.” Furthermore, when the JCP Respondents’ counsel sent the 

settlement agreement, he asked Mr. Levine’s attorney for proposed revisions, suggesting 

the expectation of additional changes and potentially demonstrating that the parties 

continued to negotiate certain aspects of the settlement. The parties had to clarify that the 

Rockwool Respondents would be included in the global settlement. Mr. Levine’s attorney 

eventually told the Rockwool Respondents’ attorney that he expected some changes to the 

agreement would be needed. Furthermore, according to Mr. Levine, the draft settlement 

agreement included an arbitration provision, to which he had not acquiesced, a

representation requiring development below. Further, the record reflects that additional 

phone calls and discussions were held, the effect of which was neither developed nor 

considered by the circuit court. The circuit court heard no testimony as to what Mr. 

Levine’s or the Respondents’ counsel understood to be the terms of the parties’ agreement 

or the significance of the parties’ continued communications as to those terms. The circuit 

court’s order further lacks any indication about whether the parties acted in reliance on the 

agreement. Therefore, under the particular facts of this case—which purports to reflect a 

complex settlement agreement including multiple parties, multiple civil actions, nonstandard settlement terms such as confidentiality and non-disparagement, and extensive 

communications about the global settlement—we find that the circuit court erred in finding 

that the parties’ entered an enforceable settlement without further factual development. 
12 

As the Fourth Circuit Court of Appeals has explained, “[b]ecause exercise of 

the authority to enforce settlement agreements depends on the parties’ agreement to a 

complete settlement, the court cannot enforce a settlement until it concludes that a complete 

agreement has been reached and determines the terms and conditions of that agreement.” 

Hensley v. Alcon Lab’ys, Inc., 277 F.3d 535, 540 (4th Cir. 2002). While we do not agree 

with the Fourth Circuit that a court must always conduct a hearing to evaluate factual 

disputes surrounding the existence of a settlement agreement, see id. at 541, the paucity of 

the record before the circuit court required it to conduct an evidentiary hearing to determine 

whether there was a meeting of the minds regarding the terms of the settlement agreement. 

For these reasons, we must remand this case to the circuit court for an 

evidentiary hearing to determine whether a settlement agreement exists, and if it does exist, 

the terms of that agreement. 

IV. 

CONCLUSION

Accordingly, we reverse and remand the final order of the Circuit Court of 

Jefferson County dated November 19, 2021, for further proceedings in accordance with 

this opinion. 

Reversed and Remanded.