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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CV-1101
D AVID B ROOKS , A PPELLANT ,

v. M ICHAEL R OSEBAR , ET AL ., A PPELLEES

. Appeal from the Superior Court of the District of Columbia (2014-CAB-8071) (Hon. Maurice A. Ross, Trial Judge) (Submitted September 19, 2017 Decided June 27, 2019)

David Brooks, pro se , was on the brief.
Wendell Robinson was on the brief for appellees. Before G LICKMAN , B ECKWITH , and E ASTERLY , Associate Judges.

G LICKMAN , Associate Judge : Appellant David Brooks sued appellees Michael Rosebar and Erin Rosebar for defamation in 2014 based o n reviews they allegedly wrote online about his security camera business. The trial court entered a default against Ms. Rosebar as a sanction for violating court o rders in the discovery process, and the case against Mr. Rosebar proceeded. During a2 September 2016 court hearing, Mr. Brooks and Mr. Rosebar’s coun sel orally agreed to settle the case, but Mr. Brooks, proceeding pro se , made conflicting statements about whether he intended for the settlement to cove r his claims against both Mr. and Ms. Rosebar. In a subsequent letter to the judge, Mr. Brooks alleged that he clarified that he had never intended to settle his clai m against Ms. Rosebar, against whom he (mistakenly) be lieved he had obtained a default judgment . The court found, however, that Mr. Brooks had agreed to settle his claims against both of the Rosebars and dismissed the case with prejudice. In this appeal, Mr. Brooks asserts that the court violated his due process rights in so di smissing his case, in part because there was no “meeti ng of the minds” between the pa rties as to material terms of the proposed s ettlement. We agree that, on t he record before us, there is insufficient evidence of a meeting of the minds. We t herefore vacate the dismissal and remand fo r further proceedings.

I.

The case before us began on December 18, 2014, when Mr. Brooks filed a defamation complaint against Michael and Erin Rosebar. 1 However, to understand

1 Initially, Mr. Brooks also sued a third defendant, Ebonee Pri ce; Ms. Price has been dismissed as a defendant and any claims against her ar e not relevant here.3 the issues in the case, we must go back further—to 2007. That year, Mr. Brooks loaned the Rosebars $30,000, secured with a promissory note and a rental stream as collateral. The Rosebars nev er repaid the loan, and Mr. Bro oks eventually won a judgment in Superior Court entitling him to the $30,000 plus interest. 2 Mr. Brooks spent years attempting unsuccessfully to collect on the judgment, during which time Mr. Rosebar filed numerous civil complaints against him, also unsuccessfully. On December 3, 2013, the court ordered that th e civil clerk no longer accept claims by Mr. Rose bar against Mr. Brooks without leave of the court because those claims appeared to be “an attempt to use judicial process to bar Mr. Brooks from recovering a debt to which this Court has already d etermined that he is legally entitled.”

Later that December, negative re views of Mr. Brooks’s security camera business, which had been operational for eight years, were post ed online. These reviews alleged that Mr. Brooks “has stolen money from my famil y[,]” “does not hold . . . proper [business] license[s,]” is “using this leg itimate business as a front for illegal, commercia l, and personal loan sharking and predato ry lending[,]” “is a criminal” and has been “taking pictures off the internet social media websites of

2 See Brooks v. Michael Rosebar et al. , 2011 CA 002525B (D.C. Super. Ct. May 5, 2011).4 your children.” Mr. Brooks claims that after the reviews were posted, he received no new referrals from the Internet and his business closed with in one year. In December of 2014, Mr. Brooks, believing that the Rosebars had p osted the negative reviews, sued the Rose bars for defamation, seeking bot h injunctive relief and damages. He also requested a s relief that the court “decla r[e] the [r]eviews false and defamatory . . . .”

In connection with this case, Mr. Brooks attempted to depose Ms . Rosebar multiple times, but she either did not show up to or refused to answer questions at the scheduled depositions, notw ithstanding court orders to comp ly. As a result, the court entered a default agains t Ms. Rosebar on May 19, 2016. M r. Brooks did not move to have a default judgment entered against Ms. Rosebar, an d no further actions were pursued as to that default.

On September 2, 2016, Mr. Brooks and the attorney Wendell Robin son, who had previously represented both Rosebars, 3 appeared in court for a motions date

3 In his appeal, Mr. Brooks prese nts letters from Mr. Robinson to the Rosebars indicating that he was withdrawing from the case as th eir attorney on May 12, 2016. However, Mr. Robinson continued to appear in cou rt and write motions on behalf of the Rosebars, and it is not clear from the record what the status of his representation was after that time.5
that the court had set sua sponte . Neither of the Rosebars appeared. When the court inquired as to whom Mr. Robi nson represented, he stated, “I’m representing only Mr. Rosebar because you’ve already entered a judgment, a default against his wife.” In reality, no judgment had been entered against Ms. Ro sebar. The court, however, did not clarify the statu s of the case against Ms. Ros ebar.

After the parties and the court addressed two unsuccessful moti ons by Mr. Brooks, the court asked, “Mr. Brooks, you already have sixteen judgments against Mr. Rosebar?” and Mr. Brooks r esponded, “[y]es. I’ve, I offere d to settle for $800. They said no.” The court aske d, “[i]f you walk away and agree not to sue him for five years, wouldn’t he and his wife agree not to sue you for f ive years?” Mr. Robinson responded, “I certa inly would recommend it.”

Mr. Robinson then stated that he “would have given 800 bucks to get it over with.” Mr. Brooks accepted the offer, saying, “[f]ine, fine. . . . Fine, I accept.” Mr. Robinson said, “I’ll give him a check. I’ll write him a ch eck.” At that point, the court told the parties to “ make sure you guys get it in wri ting.”

We quote the exchange that follo wed in detail because it provid es important context for assessing the question of whether the parties enter ed into a valid, enforceable settlement agreement:6 MR. ROBINSON: Well, wait a minute, can we put it on the record right now, Your Honor? THE COURT: Okay, what’s the offer? MR. BROOKS: $800. MR. ROBINSON: I will write a check for you for $800 .

. . and that will dismiss this case against both Rosebars. Is that correct? MR. BROOKS: Yes. MR. ROBINSON: Thank you. And, and that means, Your Honor, that your judgment - - THE COURT: Okay, next - - MR. ROBINSON: - - will be set aside? MR. BROOKS: No. It would dismiss the matters in dispute now. THE COURT: Well, it’s only a default. It’s not a judgment. MR. ROBINSON: I understand. THE COURT: It hasn’t - - the judgment. MR. ROBINSON: Okay. THE COURT: Okay, 10 o’clock next Friday I want you both to be here to make sure it was done and the case is dismissed.
The court then told Mr. Robinson that he should bring a cashier ’s check to the next hearing and concluded the proceeding.7 Prior to the next hearing, Mr. Brooks sent a letter ex parte to the court. The letter was never ente red into the record. Nonetheless, the cou rt referenced the letter at the next hearing. The court stated that Mr. Brooks’s letter admitted that he had initially agreed to settle the case against Ms. Rosebar as well as Mr. Rosebar and that he had “made a mistake.” 4 The court told Mr. Brooks, “you have to live with your mistake . . . [because] ignorance of the law is no ex cuse to repudiate your agreement.”

The court also discussed the previous hearing, saying, “Mr. Bro oks, we have the record. You said, I will accept; and Mr. Robinson said, we ’ll write the check, dismiss this case against both Rosebars, yes . . . and you a greed to that . . . that was our agreement, that everything would go away.” Mr. Brooks asked, “[i]sn’t the case against [Ms. Rosebar] over though?” The court respond ed:
No. You got a default; so, that means that she couldn’t put on any evidence and you still have to get a judgment.

4 Because the letter is not in evidence, we do not rely on its purported contents. We note, however, that Mr. Brooks denies that the le tter admitted that he had initially agreed to settle the claims against both Rosebars but then thought better of it. Rather, he claims that the letter explained that when he initially agreed that the settlement would dismiss all claims against both Roseb ars, he thought that the claim against Ms. Rosebar had already been resolved through a default. He alleges that the letter stated t hat if he “incorrectly implied that [he] was willing to forfeit the default judgment in exchange for $800 . . . [he] mi sspoke.”8 You would still have to have like a, a proof hearing. . . . [Y]our agreement was, on the record, against both of them, and, and I don’t understand what you think you achieve by proceeding . . . .
Mr. Brooks continued to argue that he had never intended to set tle the case against Ms. Rosebar. He told the court, “I didn’t understand w hat you . . . were talking about” at the September 2 hearing. But the court found that Mr. Brooks had already “agreed to” settling his claims against both Roseba rs at the previous hearing. The court announced that it was “enforc[ing] the agre ement” and dismissing the case with prejudice. Mr. Brooks refused to acce pt the cashier’s check proffered by Mr. Robinson because it “d[id] not represent what [he] believe[d] to be the agreement. ” Mr. Brooks added that it was reasonable “for a nonattorney not to know the differe nce between a default entry and a default judgment entry” and, therefore, to have been confused about whi ch claims were still live.

Notwithstanding Mr. Brooks’s rejection of the settlement check, the court maintained that “the case [wa]s still dismissed because [Mr. Br ooks was] not complying with the settlement agr eement.” The court told Mr. B rooks, “to say you’re a nonattorney is a misnomer because you’ve spent more ti me in court in the last five years than most [District of Columbia] Bar[red] attor neys, and certainly9 any of them at the big downtown law firms. So, that’s it.” Th e court dismissed the case that day without issuing an opinion. Mr. Brooks moved to alter the judgment but the court denied the motion “because [Mr. Brooks] entered i nto an oral settlement agreement in open [c]ourt. Several days later, he h ad buyer’s remorse. . . . Accordingly, once [Mr. Robinson] tendered the settlement check, the [c]ourt dismissed the case as s ettled, and so it is.”

II.

The outcome of this appeal rests on whether the trial court pro perly found that the parties had entered into a valid, enforceable settleme nt agreement. We review this question de novo

. 5 “As a general rule, the validity of a settlement agreement is determined according to general principles of cont ract law.” 6 “For there to be an enforceable contract, there must be mutual assen t of each party to all the essential terms of the contract.” 7 “This mutuality of assent is often referred to

5 Strauss v. NewMarket Global Consulting Grp. , 5 A.3d 1027, 1032 (D.C. 2010).

6 Boks v. Charles E. Smith Mgmt., Inc. , 453 A.2D 113, 117 (D.C. 1982); see Dyer v. Bilaal , 983 A.2d 349, 354 (D.C. 2009).

7 Malone v. Saxony Coop. Apartments, Inc. , 763 A.2d 725, 729 (D.C. 2000).10 as a ‘meeting of the minds.’” 8 To assess whether there w as such a “meeting of the minds,” we consider whether the parties’ objective acts manifes ted agreement as to each material aspect of the settlement agreement. 9 If the parties “fail[] to agree on or even discuss an essential term ” of a purported settlement, t hat failure may show that the parties did not mutually assent to the creation of a s ettlement. 10 Further, “[a] contract’s material terms . . . must be ‘sufficiently defi nite’ so that each party can be ‘reasonably certain’ about what it is promising to do or how it is to perform.” 11

The court cannot enforce a contract, including a settlement agr eement, unless it can determine what the agreement is. If there is a m isunderstanding between the parties that goes to the very essence of the purpor ted contract, then

8 Id.

9 Hood v. District of Columbia , 211 F. Supp. 2d 176, 180 (D.D.C. 2002) (applying D.C. contract law); Simon v. Circle Assocs., Inc. , 753 A.2d 1006, 1012 (D.C. 2000).

10 Malone , 763 A.2d at 729 (quotations omitted) (quoting Owen v. Owen , 427 A.2d 933, 937 (D.C. 1981)).

11 Dyer , 983 A.2d at 356 (quoting Rosenthal v. Nat’l Produce Co. , 573 A.2d 365, 370 (D.C. 1990)).11
there is no contract to enforce. 12 Here, at the time the court dismissed the case, there was a dispute between the parties regarding a fundamental term of the purported settlement agreement: whether the execution of the ag reement would dismiss the case against only Mr . Rosebar or against both Roseb ars.

This dispute is evidenced in the transcript of the hearing, and Mr. Brooks asserts that it was also evidenc ed in the text of his letter to the judge. Because the letter was ex parte , was never entered into evide nce, and has not been added to th e record on appeal, we cannot consider its alleged contents. Giv en Mr. Brooks’s disagreement with the trial court’s characterization of the let ter, however, we also cannot rely upon the trial court’s findings regarding the lette r because there is no way to resolve the discrepancies without the full letter before us. Thus, the

12 As the R ESTATEMENT (S ECOND ) OF C ONTRACTS § 20(1) (A M

. L AW I NST

. 1981) puts it: There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and (a) neither party knows or has reason to know the meaning attached by the other; or (b) each party knows or has reason to know the meaning attached by the other. See also Jack Baker, Inc. v. Office Space Dev. Corp ., 664 A.2d 1236, 1239 (D.C. 1995) (“Where the parties fail t o agree to all material terms, no contract is formed, even if the parties intended to be bound by their oral agreemen t . . . .”).12 transcripts of the hearings are the only evidence we may consid er in determining whether the trial court properly found that the parties had ent ered into an enforceable settlement agreement regarding Mr. Brooks’s claim a gainst Ms. Rosebar.

The transcripts not only record the purported settlement, but a lso provide important context for the settleme nt discussion. At the outset of the hearing on September 2, 2016, Mr. Robinson told the court that a judgment had been entered against Ms. Rosebar, and so he was only representing Mr. Roseba r. Thus, going into the settlement discussion, it appeared that the only case that Mr. Robinson had the ability to negotiate was the claim against Mr. Rosebar. Im mediately before negotiations began, the court framed the topic of a potential s ettlement as an option for resolving Mr. Brooks’s claim against Mr. Rosebar. The cour t inquired, “Mr. Brooks, you already have sixteen judgments against Mr. Rosebar? ” and Mr. Brooks responded, “Yes. I’ve . . . offered to settle for $800. ” The court then asked, “[i]f you . . . agree not to sue him for five years, wouldn’t he and his wife agree not to sue you for five years?”

Mr. Robinson then said he would agree to settling for $800 and Mr. Brooks accepted. Mr. Brooks briefly agreed with Mr. Robinson’s assert ion that the case13 would be dismissed against both Rosebars—but then disagreed tha t the judgment (actually a default) against Ms. Rosebar would be set aside, no ting that he intended for the settlement to apply only to “the matters in dispute now ” (i.e., the claim against Mr. Rosebar). The court relied on Mr. Brooks’s initial “yes” answer to Mr. Robinson’s question as to whethe r the case against both Rosebar s would be dismissed in finding that the par ties had entered into a valid settlement agreement.

On the record before us, there is insufficient evidence to esta blish that the parties had the requisite meeting of the minds to create a vali d, enforceable settlement agreement. Although the parties may have agreed that the claim against Mr. Rosebar should be dismissed in exchange for $800, it appear s that “they never reached an accord regarding another material part of the agreem ent” 13 —whether that same payment would also dispose of the claim against Ms. R osebar. Mr. Brooks’s statements in both hear ings evinced confusion as to th e status of his claim against Ms. Rosebar. His initial “yes” to the question of whet her the settlement would dismiss the claims against both Rosebars must be viewed i n the context of an ongoing settlement negotiation. Because the “yes” was quick ly followed by a “no” and accompanied by a later discussion indicating that the “yes” was based on

13 Hood , 211 F. Supp. 2d at 178.14 a misunderstanding, there is a serious question as to whether t he “yes” should hold

any weight, let alone serve as the basis for a dismissal. 14

We pause to note that, given Mr. Brooks’s evident confusion and his position as a pro se litigant, the court should have “ma[d]e reasonable accommodations” to help Mr. Brooks “understand the proceedings, ” 15 particularly the status of his claim against Ms. Rosebar, and should have gi ven Mr. Brooks an opportunity to be heard in court when he continued to object to the imposition of a settlement agreement. Even in t he absence of express confusion , courts should be wary of enforcing settlement agr eements orally formed between a pro se litigant and an attorney, in which the pro se litigant had no opportunity to review the settlement agreement or consult with his or her own attorney be fore it was finalized.

14 See id. at 180 (holding that there was no “manifestation of assent” to include a provision on a specif ic issue in a purported settleme nt agreement where the defendants had originally sta ted that they did not “anticip ate[]” problems with including that provision, but later informed the opposing party that they “had issues with [the proposed provision]” and argued that they “did not consider [the provision] to be part of the settlement”).

15 D.C. Code of Judicial C onduct R. 2.6, cmt. 1A.15 On the record of the settlement discussion before us, there is insufficient evidence indicating that the parties had achieved a meeting of the minds sufficient to create a valid, enforceable s ettlement agreement as to the c laim against Ms. Rosebar. The trial court’s dism issal of Mr. Brooks’s claims, t herefore, cannot stand. We reverse and remand fo r proceedings consistent with t his opinion.

So ordered.