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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-1296

ASSOCIATED ESTATES LLC, et al., APPELLANTS,

V.

BANKATLANTIC, et al., APPELLEES. 

Appeal from the Superior Court

of the District of Columbia

(CAB-2344-06)

(Hon. John M. Mott, Trial Judge)

(Argued October 18, 2016 Decided July 27, 2017)

Yaida O. Ford for appellants. Thomas G. Corcoran Jr., Melvin White, and 

Laina Lopez were on the brief for appellants.

David J. Ludlow, with whom Ryan C. Morris and Kristen A. Knapp were on 

the brief, for appellees.

Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.

THOMPSON, Associate Judge: Plaintiffs/appellants, Associated Estates, 

LLC, and its managing member and corporate representative, Barrett Ware,

(together, ―AE‖) contend that the trial court (the Honorable John M. Mott) erred 

and abused its discretion in enforcing a settlement between AE and 
2

defendants/appellees BankAtlantic; Heartwood 88, LLC; Heartwood 87, LLC; 

Sunrise Atlantic, LLC; and Fidelity Tax, LLC (together, ―BankAtlantic‖). We 

affirm. 

I. 

The parties had a contract under which AE performed research and 

portfolio-servicing work for BankAtlantic in connection with tax lien certificates. 

On March 24, 2006, AE filed a complaint against BankAtlantic, alleging breachof-contract and other claims and seeking both equitable relief and damages in 

excess of $19 million. In February 2012, after nearly six years of discovery and 

motions practice, the parties participated in a private mediation before a retired 

Superior Court judge in an attempt to resolve the counts of the complaint that had 

survived a motion to dismiss. The private mediation was unsuccessful. 

Thereafter, on February 17, 2012, Judge Mott held a case status conference 

for which Mr. Ware was not present. During the status conference, counsel for AE 

told Judge Mott that while the parties were ―closer than . . . in the past,‖ they had 

not been able to reach a settlement during the private mediation. Judge Mott asked 

whether the parties ―[w]ant[ed] to let [him] know the amounts . . . .‖ 
3

BankAtlantic‘s counsel responded that ―[t]he last offers‖ were BankAtlantic‘s offer 

to settle the case for $1 million and AE‘s counter-demand of $1.8 million. AE‘s 

counsel acknowledged that those ―dollar figures [we]re correct.‖ Judge Mott then 

suggested a court-led settlement conference to be held on April 4, 2012.1 Counsel 

for both parties agreed. 

The April 4 settlement conference began with Judge Mott inquiring about 

the ―latest demand from the plaintiffs.‖ Counsel for AE responded that the dollar 

figures remained the same. Judge Mott then referred to the $800,000 ―gulf,‖ said 

that there appeared to be ―a reasonable chance to settle this matter,‖ and said that 

he would talk separately with each side, and with anyone they cared to bring along, 

in separate jury rooms (a format that Judge Mott later observed was a ―standard 

procedure‖ that judges ―are trained to employ‖). No one objected. 

After seven hours of negotiations, the parties reached an oral agreement to 

settle the lawsuit for $1.55 million. The judge and the parties and their respective 

counsel then returned to the courtroom to put the terms of the agreement on the 

record. After Judge Mott summarized his understanding of the agreement and 

 

1

 No trial date had been set. 
4

AE‘s counsel and BankAtlantic‘s counsel added details about the latter‘s 

agreement to prepare a first draft of a written agreement and agreed that the

settlement payment would be made to the trust account of AE‘s counsel, Mr. Ware 

thanked the court. A moment later, however, in what he later described as an 

―outburst,‖ Mr. Ware said, ―You all screwed me. You all screwed me.‖2 Judge 

Mott then announced a ―short break‖ in the proceedings and suggested that Mr. 

Ware step into the hallway with his counsel. When AE‘s counsel returned without 

Mr. Ware, who, he told the court, was ―upset,‖ Judge Mott said that the 

proceedings were ―really not done if [the court‘s] impression could potentially be 

that [Mr. Ware is] not entering into this voluntarily.‖ Judge Mott added that he 

wanted to ask Mr. Ware whether he had entered into the settlement agreement 

voluntarily. 

When it appeared that Mr. Ware might not return to the courtroom that day, 

Judge Mott suggested that AE‘s counsel ―come in some time tomorrow [or ―the 

next day‖] with Mr. Ware, and just finalize things on the record.‖ When appellant 

thereafter returned to the courtroom (after what Judge Mott observed had been 

―nearly twenty minutes‖), Judge Mott inquired, ―So, Mr. Ware, is this your 

 

2

 In his order enforcing the settlement agreement, Judge Mott stated that 

Mr. Ware‘s outburst entailed ―screaming at defense counsel.‖ 
5

agreement? Is this what you want at this point? It may not be exactly what you 

expected or wanted, initially, but is this what you want me to do today to approve 

this agreement and move on?‖ Judge Mott told Mr. Ware that he was ―not going to 

approve‖ the agreement ―unless the people that are involved on both sides feel it 

was a voluntary decision, that they weren‘t forced into this in any way,‖ and 

―unless this is what you want. So it‘s not about what you said in the back. It‘s 

about what you want to say now.‖ Judge Mott then added that Mr. Ware should 

―feel free‖ ―to have another minute‖ and asked whether Mr. Ware wanted ―to 

speak with your lawyers for just a second or do you want to tell me what you 

think?‖ Judge Mott also said that he had to ―go in about five or ten minutes, to 

pick up my kids‖ but that ―other than that, . . . I have time.‖ Mr. Ware said that he 

would ―talk to [his lawyers] for about 45 seconds or so.‖ After a ―[p]ause‖ in the 

proceedings, Mr. Ware told the court he would ―take the settlement.‖ 

Several days after the settlement conference, BankAtlantic‘s counsel 

circulated a draft of the written settlement agreement, but Mr. Ware did not sign 

the agreement. On May 8, 2012, AE‘s counsel finally informed BankAtlantic‘s 

counsel that he was ―unable to tell you if or when [Mr. Ware would] sign the 

settlement agreement.‖ On May 15, 2012, BankAtlantic filed its motion to enforce 

the settlement agreement. AE, represented by new counsel, opposed 
6

BankAtlantic‘s motion, attaching a declaration from Mr. Ware and arguing that the 

agreement should not be enforced because (1) the settlement conference was an 

improper ex parte communication, (2) counsel for both parties had improperly 

disclosed material confidences, (3) the court and AE‘s counsel had exerted undue 

influence, and (4) Mr. Ware ―was not advised or informed that [AE] had the right 

to decline to engage in settlement discussions mediated by the trial judge.‖ 

On September 24, 2012, Judge Mott granted the motion to enforce the 

settlement agreement. On October 9, 2012, AE filed a ―[m]otion for 

[r]econsideration‖ of the order enforcing the settlement agreement, relying on 

Superior Court Civil Rules 59 (e) and 60 (b). The motion was accompanied by a 

―Second Declaration‖ of Mr. Ware. AE also filed a motion asking the court to seal 

that Second Declaration and a motion and accompanying affidavit asking Judge 

Mott to recuse himself. Judge Mott denied those various requests on October 8, 

2014. On November 6, 2014, AE filed a notice of appeal in which it designated, as 

the orders to be reviewed, the (1) denial of the motion to recuse; (2) denial of the 

motion to seal, and (3) denial of the motion for reconsideration. AE has 

abandoned its appeal from denial of the motion to seal, but argues that this court‘s 

review should reach the order granting the motion to enforce as well as the order 

denying reconsideration.
7

AE‘s primary contentions on appeal are that the trial court erred in granting 

the motion to enforce and abused its discretion in not setting aside the enforcement 

order because the agreement was the product of undue influence by AE‘s thencounsel and the result of a procedurally unconscionable process.

II. 

We begin by deciding what orders are before us for review. BankAtlantic 

argues that because AE‘s Notice of Appeal did not designate the order enforcing 

the settlement agreement as an order being appealed, we may review only the 

denial of the motion for reconsideration, as to which our review is for abuse of 

discretion.3 AE contends that the effect of its timely Rule 59 (e) motion is that we 

may review both the denial of the motion for reconsideration and the judgment 

enforcing the settlement agreement, notwithstanding that the latter was not listed 

on the Notice of Appeal. We are satisfied that AE has the better of the argument.

 

3

 See Dist. No. 1 — Pac. Coast Dist. v. Travelers Cas. & Sur. Co., 782 

A.2d 269, 278 (D.C. 2001) (―Motions under either rule [59 (e) or 60 (b)] are 

committed to the broad discretion of the trial judge.‖ (citations omitted)). 
8

The rules of this court provide, just as they did at the time AE filed its 

Notice of Appeal, that a ―notice of appeal must . . . designate the judgment, order, 

or part thereof being appealed.‖ D.C. App. R. 3 (c)(1)(B). However, at the time 

AE filed its appeal, Rule 3 (c)(5), reflecting a 2004 amendment,4further provided 

in pertinent part that: 

Parties are encouraged to use Form 1 [which directs the 

appellant to enter the ―[d]ate of entry of judgment or 

order appealed from‖] . . . , though the use of a particular 

form is not required. Failure to provide any of the 

information requested on Form 1 . . . except for the 

specification of the party or parties taking the appeal and 

the designation of the judgment or order, or part thereof 

being appealed, will not deprive the court of jurisdiction 

to consider the appeal. 

D.C. App. R. 3 (c)(5) (2014) (emphasis added). We said in Vines that 

notwithstanding our general ―liberal construction‖ of Rule 3, the warning 

contained in subsection (c)(5) obliged us to limit our review to the orders 

designated in the appeal notice. See 935 A.2d at 1083. BankAtlantic relies on 

Vines in arguing that the order enforcing the settlement agreement is beyond the 

scope of our review. We disagree for the following reasons.

 

4

 See Vines v. Manufacturers & Traders Tr. Co., 935 A.2d 1078, 1083 

(D.C. 2007).
9

Effective November 30, 2016, i.e., during the pendency of this appeal, this 

court amended D.C. App. R. 3. The amended rule continues to require the notice 

of appeal to ―designate the judgment, order, or part thereof being appealed,‖ D.C. 

App. R. 3 (c)(1)(B), but omits the warning previously contained in subsection 

(c)(5). The Supreme Court has observed that ―[c]hanges in procedural rules may 

often be applied in [matters] arising before their enactment without raising 

concerns about retroactivity.‖ Landgraf v. USI Film Prods., 511 U.S. 244, 275 

(1994); see also id. at 275 n.29 (―Our orders approving amendments to federal 

procedural rules reflect the commonsense notion that the applicability of such 

provisions ordinarily depends on the posture of the particular case.‖ (citing Order 

Amending Federal Rules of Criminal Procedure, 495 U.S. 969 (1990) 

(amendments applicable to pending cases ―insofar as just and practicable‖); Order 

Amending Federal Rules of Civil Procedure, 456 U.S. 1015 (1982) (same); Order 

Amending Bankruptcy Rules and Forms, 421 U.S. 1021 (1975) (amendments 

applicable to pending cases ―except to the extent that in the opinion of the court 

their application in a particular proceeding then pending would not be feasible or 

would work injustice‖)). 
10

Even if Rule 3 (c)(5) is properly considered a jurisdictional rule,

5

―a 

presumption against retroactive application of new legislation [or rules] to pending 

cases . . . generally does not apply to rules conferring or withdrawing jurisdiction.‖ 

Arrowhead Estates Dev. Co. v. United States Tr., 42 F.3d 1306, 1311 (9th Cir. 

1994) (holding that amendments to Rule 4 (a)(4) of the Federal Rules of Appellate 

Procedure that became effective after Arrowhead lodged its appeal did not 

preclude application of the amended rule to the case (citing Landgraf, 511 U.S. at 

274 (―We have regularly applied intervening statutes conferring or ousting 

jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred 

or when the suit was filed.‖))

We conclude that AE is entitled to the more liberal construction of Rule 3 

that the 2016 amendments signaled. With the omission of the warning formerly 

contained in subsection 3 (c)(5), we are free to return to the approach set out in 

 

5

 The Supreme Court has cautioned that the label ―jurisdictional‖ should be 

reserved for ―prescriptions delineating the classes of cases (subject-matter 

jurisdiction) and the persons (personal jurisdiction) falling within a court‘s 

adjudicatory authority,‖ Kontrick v. Ryan, 540 U.S. 443, 455 (2004). However, the 

Court also ―ha[s] held that the dictates of Rule 3 of the Federal Rules of Appellate 

Procedure, including the requirement to  ̳designate the judgment, order, or part 

thereof being appealed, are  ̳jurisdictional in nature.‘‖ Gonzalez v. Thaler, 565

U.S. 134, 147 (2012) (quoting Smith v. Barry, 502 U.S. 244, 248 (1992)); see also 

Neill v. District of Columbia Pub. Emp. Relations Bd., 93 A.3d 229, 238 n.43

(D.C. 2014). 
11

opinions of this court that pre-date the adoption of that warning language. See, 

e.g., Perry v. Sera, 623 A.2d 1210, 1214, 1215 (D.C. 1993) (―[W]e think that [Rule 

3] should not be so stringently construed as to bar an appeal where, as here, it is 

clear from the face of the Notice of Appeal that appellant was seeking review of 

the underlying judgment dismissing her claim as well as the denial of the [m]otion 

for [r]econsideration‖); id. (noting that ―on the Notice of Appeal, appellant wrote 

. . . that she was appealing from the denial of the  ̳[m]otion for [r]econsideration of 

[o]rder dismissing complaint‘‖ but that ―on the very next line[,] where appellant 

was to indicate the  ̳[i]ssues to be presented by appellant on appeal,‘ she presented 

the exact issue that she wishes this court to address:  ̳whether trial court abused its 

discretion in dismissing complaint and denying [m]otion to reconsider his 

decision.‘‖ (footnote omitted)); see also Wallace v. Warehouse Emps. Union No. 

730, 482 A.2d 801, 810 n.26 (D.C. 1984) (holding, in an opinion issued before the 

designation requirement was added to Rule 3 in 1985,6that ―[w]e may review both 

the ruling on the motion for summary judgment and the denial of the motion for 

reconsideration despite the fact that appellants‘ notice of appeal challenged only 

the denial of the motion for reconsideration.‖ (citing Coleman v. Lee Washington 

Hauling Co., 388 A.2d 44, 45 n.1 (D.C. 1978) (―Although the notice of appeal 

 

6

 See Perry, 623 A.2d at 1215 n.13.
12

designated the order of May 24 rather than the order of May 10 as the order from 

which appeal was taken, the designation is not dispositive of our jurisdiction.‖))). 

Here, although AE‘s Notice of Appeal does not contain language specifying 

the exact issues AE wanted this court to address, the order denying reconsideration 

attached to the Notice made clear that Judge Mott‘s principal rationale for denying 

reconsideration of the order enforcing the settlement agreement was that the court 

declined to ―review its determination . . . based on arguments it previously 

addressed in the enforcement order . . . .‖ We think AE‘s appeal from that 

judgment by the court gave a fair indication that AE sought this court‘s review 

with respect to the trial court‘s ―previously addressed‖ reasoning. Accordingly, we 

proceed to our analysis of both the order enforcing the settlement agreement and 

the order denying the motion for reconsideration.7 

 

7

 We note, too, that the facts here are quite unlike those in Vines, in which 

the notice of appeal listed a May 30, 2006, order that granted summary judgment 

on statute-of-limitations grounds to a wrongful-foreclosure defendant, but failed to 

list an unrelated March 20, 2006, order that rejected Vines‘s plea-of-title claim and 

entered a judgment for possession in favor of a foreclosure-sale purchaser. See 

935 A.2d at 1079–80, 1082. Nothing in this opinion should be taken to imply that 

we would apply the approach we apply here — reviewing the denial of the motion 

for reconsideration of the enforcement order as well as the underlying enforcement 

order, the time for appeal from which was stayed by the timely post-judgment 

motion — in a case where the issue is whether we may review a judgment or 

order(s) unrelated to the one(s) listed on the notice of appeal.
13

III.

Appellants first contend that Judge Mott erred in enforcing the settlement 

agreement despite Mr. Ware‘s averment in his (first) declaration that his agreement 

to settle was the result of undue influence by his attorneys. 

A settlement agreement is a contract, and whether a contract is enforceable 

is a question of law, which we review de novo. Dyer v. Bilaal, 983 A.2d 349, 355 

(D.C. 2009). ―[T]he legal test of undue influence . . . is influence that destroys free 

agency.‖ Ross v. Blackwell, 146 A.3d 385, 391 (D.C. 2016) (internal quotation 

marks and brackets omitted). Under some circumstances, evidence of undue 

influence may warrant setting aside a contract. See Pierola v. Moschonas, 687 

A.2d 942, 950 (D.C. 1997) (―[C]ourts have . . . insisted on objective evidence of 

fraud, duress, overreaching, undue influence or mistake before setting aside 

allegedly unfair contracts.‖). And, ―[i]t generally takes less to establish undue 

influence when a confidential relationship exists between the parties‖ to a contract. 

Roberts-Douglas v. Meares, 624 A.2d 405, 420 (D.C. 1992). However, it is far 

from clear that ―alleged coercion by [a party‘s own] counsel . . . affect[s] the 

validity of [the party‘s] consent to [a] settlement.‖ Macktal v. Sec’y of Labor, 923 
14

F.2d 1150, 1157 (5th Cir. 1991) (emphasis added). For purposes of our analysis, 

we focus on the averred facts that AE argues show undue influence by its counsel, 

and we assume without deciding that undue influence by counsel would have been 

a valid basis for Judge Mott to refuse to withhold enforcement of the settlement 

agreement. ―Undue influence is a mixed question of fact and law‖; we review the 

pertinent factual findings for clear error and the legal issues de novo. Ross, 146 

A.3d at 387 (quoting In re Ingersoll Tr., 950 A.2d 672, 692 (D.C. 2008)).

We can find no error in Judge Mott‘s decision not to withhold enforcement 

of the settlement agreement on this basis, because AE‘s opposition to the motion to 

enforce asserted in only a conclusory (and circular) fashion that ―it was improper 

for their prior counsel to unduly pressure [p]laintiffs regarding settlement.‖ Mr. 

Ware‘s declaration supplied no more specificity, stating, without detail or 

supporting facts, that he was ―under considerable pressure from [his] prior counsel 

to settle.‖ Courts generally agree that ―[t]he evidence to establish . . . undue 

influence must be clear, cogent, and convincing.‖ In re Estate of Smith, 411 P.2d 

879, 883 (Wash. 1966). Nothing in AE‘s opposition to the motion to enforce 

satisfied that standard.
15

In ruling on the motion for reconsideration, Judge Mott was presented with a 

more developed record. Mr. Ware‘s Second Declaration, attached in support of 

that motion, set out the following assertions with respect to AE‘s counsel and the 

broader context of AE‘s considerations about whether to settle8: As of February 

2012, AE owed its counsel approximately $225,000, and counsel informed Mr. 

Ware ―that [counsel] was at the end of the rope with his firm regarding [that] 

outstanding balance . . . .‖ Counsel had also advised Mr. Ware to the same effect 

by mid-January 2012 and told him that if AE did not pay the balance, the firm 

would have to withdraw from representation. Counsel further informed Mr. Ware 

in February 2012 that the result of the outstanding balance was that he had ―the 

highest receivable in the firm‖ and that he and his associate had not received 

bonuses as a result. Counsel strongly urged AE to settle. Further, in a March 2, 

2012, letter to Mr. Ware, counsel advised that unless the firm received full 

payment on or before April 4, 2012, or AE agreed to settle the case on the day of

the scheduled (April 4) settlement conference, the firm would ―have no alternative

. . . but to move to withdraw [its] appearance and . . . advise [AE] to immediately 

 

8

 AE‘s motion for reconsideration asserted that there were ―facts uncovered 

since the filing of [AE‘s] [o]pposition [to BankAtlantic‘s motion to enforce the 

settlement agreement that] demonstrate that [AE‘s] former trial counsel 

egregiously‖ failed AE. However, as will be seen from the summary of the 

averments in Mr. Ware‘s Second Declaration set out in the text above, the facts on 

which AE‘s motion relied were known to Mr. Ware at the time AE filed its 

opposition to the motion to enforce.
16

retain new counsel.‖ In addition, counsel advised that if AE insisted on requesting 

a continuance of the scheduled settlement conference, the law firm would relay 

that request to the court but would move to withdraw as counsel. 

Mr. Ware further averred that in or around January 2012, he informed 

counsel that according to Mr. Ware‘s research, BB&T planned to acquire 

BankAtlantic, an acquisition that Mr. Ware believed would strengthen AE‘s 

bargaining position. BankAtlantic itself was in financial trouble, a factor that 

caused Mr. Ware to ―seriously consider . . . a settlement in the range of $2 million 

to $3 million,‖ as he feared that the FDIC might take over BankAtlantic‘s assets 

and diminish or extinguish AE‘s claims. Mr. Ware asked his counsel whether 

BB&T should be brought into the suit if the acquisition occurred. The attorneys 

told Mr. Ware that BB&T was a client of their firm. Around mid-March 2012, the 

media were reporting that BB&T‘s acquisition of BankAtlantic ―was moving 

forward,‖ and AE was ―no longer concerned about BankAtlantic going into 

receivership.‖ This meant, according to Mr. Ware, that ―the only impediment to 

the case moving forward to trial‖ was the pressure from counsel to settle so that the 
17

law firm‘s outstanding bills could be paid.9 Mr. Ware averred that he was 

expecting another pending lawsuit to conclude soon in AE‘s favor, and that he 

planned to use funds recovered through that litigation to pay the law firm‘s bills. 

He asked counsel to request a continuance of the court settlement conference for a 

few weeks so that the other litigation could be concluded successfully and also in 

the hope that BankAtlantic would produce accounting documents AE had 

requested. 

On the evening before the settlement conference, Mr. Ware was informed 

that AE had won the other lawsuit and so advised counsel on the morning of the 

settlement conference, but counsel said that the ―victory in the other case was 

irrelevant unless [AE] could get a check to him that day to pay the outstanding 

balance owed to‖ the law firm. During the settlement conference, when Judge 

Mott was out of the room, counsel ―renewed the[] threat to withdraw if [AE] did 

not agree to the settlement,‖ a threat counsel repeated even after Mr. Ware‘s 

―outburst‖ before Judge Mott. 

 

9

 Mr. Ware averred that one reason why he did not want to settle was that 

BankAtlantic had not produced certain accounting documents requested in 

discovery that were necessary for AE to evaluate its settlement position. 
18

AE argued in its motion for reconsideration that the foregoing 

―uncontroverted evidence‖ warranted Judge Mott‘s reversal of his decision to 

enforce the settlement agreement. More specifically, AE argued that the facts 

averred in Mr. Ware‘s Second Declaration (which BankAtlantic had no basis for 

disputing) showed that the conduct by AE‘s previous counsel was ―outrageously in 

violation of counsel‘s duty‖ to act in AE‘s best interest. Mem. in Support of Mot. 

For Recons. at 8, Oct. 9, 2012, (quoting Lynch v. Meridian Hill Studio Apts., Inc.,

491 A.2d 515, 519 (D.C. 1985) (internal quotation marks omitted)). We cannot 

agree. 

 AE owed its counsel a large outstanding balance, and AE‘s counsel 

warned AE months in advance of the April 4 settlement conference — in January 

and February as well as in March of 2012 — that the firm would have to withdraw 

from representing AE if its fees were not paid.10 In February, he told Mr. Ware 

 

10

 Rule 1.16 (b)(3) of the District of Columbia Rules of Professional 

Conduct provides that ―a lawyer may withdraw from representing a client if . . . 

[t]he client fails substantially to fulfill an obligation to the lawyer regarding the 

lawyer‘s services and has been given reasonable warning that the lawyer will 

withdraw unless the obligation is fulfilled.‖ D.C. Rules of Prof‘l Conduct R. 1.16 

(b)(3). Comment 8 to Rule 1.16 states more specifically that ―[a] lawyer may 

withdraw if the client refuses to abide by the terms of an agreement . . . concerning 

the timely payment of the lawyer‘s fees.‖ D.C. Rules of Prof‘l Conduct R. 1.16 

cmt. 8. We express no opinion on whether counsel‘s actions in this case 

comported with Rule 1.16.
19

that payment must be received on or before April 4 and that they would withdraw 

if payment was not made, or the case was not settled, on or before that date. By 

June 7, 2012, the date when AE filed its opposition to BankAtlantic‘s motion to 

enforce the settlement agreement, AE had retained new counsel, showing that it 

was able to find new counsel within a couple of months after the settlement 

conference. These facts persuade us that AE could have found new counsel to 

represent it in this litigation even if it had parted ways with its previous counsel 

before the settlement conference, and even if it had declined to settle during the 

settlement conference. Given that AE‘s previous counsel did not ―wait[] until the 

client [was] over a barrel . . . [to spring] a demand for payment,‖ Fidelity Nat’l

Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537, 540 

(7th Cir. 2002), we can find no abuse of discretion in Judge Mott‘s determination 

that the allegations in Mr. Ware‘s Second Declaration ―contain[ed] no . . . 

instances of  ̳outrageous‘ conduct‖ by AE‘s previous counsel that warranted 

reconsideration of the order enforcing the settlement agreement.11 We see no 

reason to doubt that counsel‘s threat to withdraw was an influence on AE, but in 

light of the large outstanding fee balance, counsel‘s warning about withdrawal 

 

11

 As Judge Mott emphasized, counsel‘s statements were ―not made on the 

eve of trial where, as a consequence, the pressure to settle might be ratcheted to 

another level.‖ 
20

does not appear to have been ―undue‖ or to have deprived AE of ―free agency.‖ 

Ross, 146 A.3d at 391.

AE further argues, for the first time in its brief on appeal, that the conduct by 

AE‘s counsel rendered the settlement agreement voidable by AE as a matter of 

law, under the authority of the Restatement (Second) of Contracts § 177 (Am. Law

Inst. 1981) (―When Undue Influence Makes a Contract Voidable‖). That section 

of the Restatement recognizes that a contract is voidable if there has been ―unfair 

persuasion of a party who is under the domination of the person exercising the 

persuasion or who by virtue of the relation between them is justified in assuming 

that that person will not act in a manner inconsistent with his welfare.‖ Id. AE 

argues that, because of its relationship with its counsel, it was justified in assuming 

that counsel would not act in a manner inconsistent with AE‘s welfare, and asserts 

that it entered into the settlement at counsel‘s urging even though counsel‘s advice 

was not consistent with AE‘s welfare, entitling it to unwind the agreement.12 

 

12

 BankAtlantic argues that because AE did not cite Restatement § 177 in 

its motions filed in the trial court, its argument based on it is waived and should not 

be considered by this court. We elect to consider the argument as a species of the 

undue influence argument AE did present to Judge Mott. See Abdus-Price v. 

United States, 873 A.2d 326, 332 n.7 (D.C. 2005) (explaining that ―the principle 

that  ̳normally‘ an argument not raised in the trial court is waived on appeal is . . . 

one of discretion rather than jurisdiction‖ and that ―parties on appeal  ̳are not 

(continued...)
21

 

In analyzing this argument, we note first that there appears to be an absence 

of law, in this jurisdiction and elsewhere, to the effect that a party may rescind a 

settlement agreement on the basis of undue influence by the party‘s own attorney. 

See Taylor v. Kaiser Found. Health Plan of the Nw., No. 3:11-cv-1551-ST, 2012 

U.S. Dist. LEXIS 184796, at *26 (D. Or. Nov. 7, 2012) (―Even assuming that 

Taylor was indeed subject to undue influence by her attorney and union 

representative, this does not permit her to rescind the Agreement.‖); Crown Cork 

& Seal USA, Inc. v. Behurst, No. 3:10-CV-251-HZ, 2012 U.S. Dist. LEXIS 4150, 

at *27–28, *30 (D. Or. Jan. 12, 2012) (acknowledging Oregon‘s adoption of 

Restatement § 177, but finding an absence of any Oregon law that undue influence 

by a party‘s attorney supports rescission of an agreement). But assuming without 

deciding that this court would adopt the principle that undue influence by a party‘s 

attorney can render a settlement agreement voidable (and not merely, for example, 

form the basis for a malpractice action),13 we cannot agree that the criteria 

described in Restatement § 177 are satisfied on the record here. 

 

(...continued)

limited to the precise arguments they made below‘ in support of their claims‖ 

(quoting Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).

13

 Cf. Macktal, 923 F.2d at 1157–58 (holding — in a case in which the 

plaintiff/client argued that his attorney‘s threat to withdraw from representing him, 

(continued...)
22

To be sure, as a general matter, a client is ―justified, by virtue of the 

attorney-client relation, in assuming that [counsel] w[ill] not act in a manner 

inconsistent with [its] welfare.‖ Lempert v. Singer, 766 F. Supp. 1356, 1362 

(D.V.I. 1991). But AE‘s counsel acted in a manner consistent with AE‘s welfare 

when counsel repeatedly informed Mr. Ware that counsel would withdraw if 

payment was not made and advised AE that it would need to act immediately to 

retain new counsel.14 Counsel also offered to request a continuance of the 

settlement conference if they withdrew, which relieved some of the pressure Mr. 

Ware might have felt. Moreover, even if counsel‘s advice to settle was not 

exclusively for the benefit of AE, counsel‘s repeated statements about withdrawing

if payment of the outstanding balance was not made or if the case was not settled 

 

(...continued)

and to charge him $12,000 in fees, if he did not consent to a settlement, voided his 

consent — that trial court did not abuse its discretion in refusing to void the 

settlement or in reasoning that the client‘s right to seek new counsel and the 

availability of a direct action by the client against the attorney weighed in favor of 

a conclusion that the client should bear the risk of his attorney‘s alleged 

misconduct).

14

 Although AE cites to the statement in Comment 5 to D.C. Rules of Prof‘l 

Conduct R. 1.5 that ―a lawyer should not enter into an agreement whereby services 

are to be provided only up to a stated amount when it is foreseeable that more 

extensive services probably will be required,‖ this case does not appear to 

implicate that principle.
23

on April 4 put AE on notice that counsel were acting at least in part based on their 

own financial interest. Further, by Mr. Ware‘s own admission, counsel also told 

him that the law firm represented BB&T. Even if counsel did not characterize that 

fact or the attorneys‘ financial interests as creating (potential) conflicts of interest 

that would make it difficult for counsel to act fully in AE‘s interest, we think it had 

to be apparent to Mr. Ware (who, Judge Mott found, is a savvy business man) that, 

at the very least, counsel might be reluctant to take action adverse to BB&T or 

reluctant to continue the litigation, for reasons that had nothing to do with AE‘s 

welfare. Thus, the facts as alleged by AE do not support a conclusion that AE was 

―justified in assuming‖ that its counsel was solely focused on AE‘s welfare when 

counsel urged AE to settle.15 

In addition, the record contains an April 6, 2012, email from Mr. Ware to 

counsel for BankAtlantic in which Mr. Ware stated that ―[m]ore than anything [he] 

wanted to go to trial[,]‖ but that the assets in his ―war chest‖ had become ―tied up‖ 

due to ―the narrowest twist of fate.‖ This email seems to indicate that AE‘s 

 

15

 In light of that conclusion, we need not discuss the parties‘ arguments 

with respect to § 177‘s proviso that a contract procured by the undue influence of a 

non-party is voidable only if the party seeking to enforce the contract ―g[ave] value 

or relie[d] materially on the transaction‖ ―without reason to know of the undue 

influence . . . .‖ Restatement (Second) of Contracts § 177 (3) (Am. Law Inst. 

1981). 
24

decision to settle rather than continue to litigate was due to circumstances other 

than judgment impaired by undue pressure from AE‘s previous counsel. Cf. id. at 

1362–63 (concluding that client Lempert had not raised a genuine issue about 

whether the ―free and competent exercise of her judgment‖ was impaired because 

the evidence was that ―[s]he did not blindly trust [counsel], but insisted that she did 

not want to execute the power of attorney‖ and that it was ―[o]nly when she 

became aware of the extent of her stepfather‘s illness [that] she cho[se] to execute 

the power of attorney‖). 

For all the foregoing reasons, we cannot conclude that it was an abuse of 

discretion for Judge Mott, presented with the record before him about previous 

counsel‘s conduct, to conclude that the order enforcing the settlement agreement 

should stand.

IV. 

AE‘s additional argument is that it was error for Judge Mott to enforce the 

settlement agreement, and an abuse of discretion not to reconsider his enforcement 

order, because the agreement was the result of a procedurally unconscionable 

process. AE asserts that the process was unfair because (1) Judge Mott conducted 
25

ex parte communications with the parties during the settlement conference without 

having received AE‘s affirmative consent; (2) Judge Mott and counsel for the 

parties discussed confidential information from the private mediation; (3) AE‘s 

counsel threatened to withdraw on the day of settlement negotiations if AE did not 

agree to settle; and (4) the judge pressured AE to accept the offer within five or ten 

minutes. 

Under our case law, unless a contract is shown to be substantively 

unconscionable, it will not be rendered unenforceable because of procedural 

unconscionability, except ―in an egregious situation.‖ Urban Invs., Inc. v. 

Branham, 464 A.2d 93, 99 (D.C. 1983) (internal quotation marks omitted). That is 

because, ―[w]ithout proof that the terms [of the contract] are unfair, the court 

normally will be unable to ascertain what detriment the weaker party suffered as a 

result of [an unconscionable] bargaining process.‖ Id. at 100. To determine 

whether a contract is procedurally unconscionable or, in other words, whether the 

party seeking to void the contract lacked a ―meaningful choice,‖ we generally look 

to ―all the circumstances surrounding the transaction,‖ including the parties‘ 

―bargaining power,‖ whether the parties had ―a reasonable opportunity to 

understand‖ contract terms, ―the manner in which the contract was entered‖ into, 

the relative expertise of the parties, and the timeframe in which the contract was 
26

completed. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 450–51

(D.C. Cir. 1965); see also Urban Invs., Inc., 464 A.2d at 99. 

Here, AE has not attempted to show that the settlement agreement was 

substantively unconscionable. Accordingly, for us to conclude that Judge Mott 

erred or abused his discretion in allowing the settlement agreement to stand, the 

record must establish that the procedural faults AE decries were ―egregious.‖ We 

cannot reach that conclusion.

Under an exception to Rule 2.9 of the District of Columbia Code of Judicial 

Conduct (the ―Code‖), which generally prohibits a judge from engaging in ex parte 

communications, ―[a] judge may, with the consent of the parties, confer separately 

with the parties and their lawyers in an effort to settle matters pending before the 

judge.‖ D.C. Code of Judicial Conduct R. 2.9 (A)(4). Judge Mott observed that 

―[n]either side voiced or, even, indicated any objection‖ to the ex parte format and 

reasoned that AE‘s failure to object and participation operated as its implied 

consent. We can agree with AE that the preferable course might have been for 

Judge Mott to obtain explicit consent from each side‘s representative to conduct 

the settlement conference through ex parte communications with the other side, but 

it was not unreasonable for Judge Mott to infer that AE (which, he observed, 
27

―appeared to entirely welcome the court‘s participation‖) consented to the 

procedure. Moreover, as Judge Mott reasoned, even if Mr. Ware acquiesced in the 

ex parte discussions because he believed he had no choice but to do so, that ―did 

not require him to reach an actual settlement.‖ And although AE argued in its 

motion for reconsideration that with a non-ex parte format, the ―likely outcome [of 

the settlement conference] would have been radically different,‖ it did not explain, 

and has not suggested on appeal, why a format in which the court met with the 

parties all together would have led to such a difference. Notably, in his April 6, 

2012, email to counsel for BankAtlantic, Mr. Ware explained that his ―outburst‖ on 

April 4 had not been directed at BankAtlantic or its counsel, suggesting that his 

view was not that BankAtlantic had used its ex parte discussions with Judge Mott 

to ―screw‖ AE. Thus, the facts of the case do not support a conclusion that the ex 

parte nature of the settlement conference was an egregious situation that rendered 

the process unconscionable. 

The record does not establish the precise scope of the private mediator‘s 

direction that ―the mediation would be confidential,‖ and, in its opposition to the 

motion to enforce the settlement agreement, AE cited as authority for its position 

only language from the General Mediation Order used in the Superior Court MultiDoor Dispute Resolution Division (contained in the Appendix of Forms to the 
28

Superior Court‘s Rules of Civil Procedure).16 It is far from clear that the Superior 

Court Multi-Door form governed the private mediation. It is also far from clear 

that references to previous settlement-offer amounts in the context of further 

settlement discussions at the court-led conference (which, AE has argued, 

―functioned . . . like a second day of mediation‖) violated the private-mediation 

directive.17 In any event, the respective lawyers knew each other‘s positions, and 

AE has not shown how the disclosure was a detriment to it in its settlementconference negotiations. Mr. Ware‘s Second Declaration explains that he told 

Judge Mott during the settlement discussions that the circumstances, and hence 

AE‘s position, had changed from the time of the private mediation ―because 

BB&T‘s acquisition of BankAtlantic was now going forward . . . and BankAtlantic 

was in a position to pay the true amount of damages, not the low ball number.‖ 

 

16

 See Form 117, Super. Ct. Civ. R. Appendix of Forms (―Both mediation 

and neutral case evaluation sessions are confidential . . . . All proceedings at the 

mediation or case evaluation conference, including any statement made by any 

party, attorney or other participant, are privileged. They may not be construed as 

an admission against interest and nothing said at such sessions may be used in 

court in connection with the case or any other litigation.‖).

17

 AE does not dispute Judge Mott‘s statement that he ―never asked the 

parties about details of the private mediation or what factors had led to the 

monetary figures‖ the parties had articulated. Further, this matter does not involve 

the trial court‘s ― ̳use [of] the information provided in settlement [communications] 

for the purpose of determining what is an appropriate resolution of a matter‘‖ or 

― ̳to prove or disprove the validity or amount of a disputed claim.‘‖ Sibley v. St. 

Albans Sch., 134 A.3d 789, 817 (D.C. 2016) (quoting Lively v. Flexible Packaging 

Ass’n, 930 A.2d 984, 994 (D.C. 2007) and Fed. R. Evid. 408 (a)(2)). 
29

Mr. Ware did not aver, and AE does not claim, that Judge Mott nevertheless held 

AE to the $1.8 million counter-demand AE had made two months earlier (and, in 

his order enforcing the settlement agreement, Judge Mott stated that Mr. Ware was 

―at all times, free to seek a figure higher than the one he at one time demanded‖). 

Accordingly, we have no basis for concluding that disclosure of the settlement 

offer amounts resulted in a process that was, as AE asserts, ―egregiously tainted.‖ 

For the reasons already discussed, on the facts of this case we also cannot 

agree that AE‘s previous counsel‘s statements about withdrawing on the day of 

settlement negotiations if AE did not pay the outstanding fees or agree to settle 

rendered the process unconscionable. Moreover, Mr. Ware was not under the 

domination of these counsel, as he was also accompanied at the settlement 

conference by AE‘s outside general counsel, who, Judge Mott found, was ―in the 

jury room with [Mr. Ware] throughout the settlement conference.‖ We are 

satisfied that AE did not lack a meaningful choice with respect to whether to agree 

to settlement. We also discern no clear error in Judge Mott‘s finding that Mr. 

Ware‘s agreement to accept the settlement was voluntary.

Finally, the record does not support AE‘s claim that Judge Mott pressured 

AE to accept the offer within ―five or ten minutes.‖ AE does not dispute that it 
30

agreed to settle only after a seven-hour negotiation, and it does not claim that it 

lacked enough time to understand the terms of settlement. And although Judge 

Mott referred to his need to leave the courthouse in five or ten minutes, his remarks 

on the record indicated that he was prepared to carry the matter over for a day or 

two to see whether Mr. Ware would accept the negotiated agreement; that the 

parties ―could have a trial to see how the dust settles‖; and that the judge would not 

approve the agreement if he was not satisfied that Mr. Ware was affirming it 

voluntarily. Again, we cannot conclude that the process was so ―egregious‖ as to 

be unconscionable, and we therefore find no error or abuse of discretion in Judge 

Mott‘s rulings upholding the settlement agreement. 

V.

Lastly, AE argues that Judge Mott abused his discretion in declining to 

recuse himself. It asks us to ―order Judge Mott recused from this case going 

forward‖ if we agree that the settlement agreement should not have been enforced. 

Because we uphold the orders enforcing the settlement agreement and denying 

reconsideration, we need not address the recusal issue.

**
31

For all the foregoing reasons, the judgments of the trial court are

Affirmed.