UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INDIANA LUMBERMENS MUTUAL

INSURANCE COMPANY, a corporation

of the state of Indiana,

Plaintiff-Appellee,

v.

INFORMATION SYSTEMS,

INCORPORATED; NETWORKS No. 94-2633

CORPORATION; ROMA P. MALKANI;

PREM MALKANI,

Defendants-Appellants,

and

DAVID C. CONDRON; JACK J. MORRIS,

Defendants.

INDIANA LUMBERMENS MUTUAL

INSURANCE COMPANY, a corporation

of the state of Indiana,

Plaintiff-Appellant,

v.

INFORMATION SYSTEMS,

INCORPORATED; NETWORKS No. 95-2084

CORPORATION; ROMA P. MALKANI;

PREM MALKANI,

Defendants-Appellees,

and

DAVID C. CONDRON; JACK J. MORRIS,

Defendants.
Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CA-93-707-DKC)

Argued: January 29, 1996

Decided: May 1, 1996

Before RUSSELL, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Bobby Dean Melvin, Bethesda, Maryland, for Appellants.

Bernard L. Balkin, SANDLER, BALKIN, HELLMAN & WEINSTEIN, Kansas City, Missouri, for Appellee. ON BRIEF: Peter J.

McNamara, OBER, KALER, GRIMES & SHRIVER, P.C., Baltimore, Maryland, for Appellants. Michael J. Blake, SANDLER,

BALKIN, HELLMAN & WEINSTEIN, Kansas City, Missouri;

Gerard P. Sunderland, WHITEFORD, TAYLOR & PRESTON, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Information Systems & Networks Corporation (ISN) appeals from

the district court's order, dated July 20, 1994, finding that ISN and

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Indiana Lumbermens Mutual Insurance Company (Indiana) entered

into an oral settlement agreement. Indiana separately appeals from the

district court's refusal to enforce its order of July 20, 1994, as a judgment. We affirm in both appeals.

I.

On March 9, 1993, Indiana filed suit against ISN, Roma Malkani

(president and sole shareholder of ISN), and her husband, Prem

Malkani.1 The suit concerned surety bonds which Indiana had provided for two ISN contracts, one to provide an Automated Access

Control System at Kansas City International Airport (KCIA) and

another to install a security system for the Port of Oakland. Indiana

filed the suit because ISN was engaged in separate lawsuits with

KCIA and Oakland, and both KCIA and Oakland had made demands

upon Indiana as surety. Indiana's complaint against ISN requested,

among other things, that ISN provide Indiana with additional collateral in excess of $4.2 million. ISN counterclaimed, alleging, among

other things, that Indiana had charged for unnecessary and unreasonable legal and consulting fees.

On April 28, 1994, while the case was pending, Indiana served a

Motion to Enforce Settlement, alleging that the parties had entered

into an oral settlement agreement at a meeting on February 25, 1994.

In attendance at this meeting for Indiana were David Riese, its vice

president; William Piper, an expert witness for Indiana; and Michael

Blake, attorney of record for Indiana. Present for ISN were Vera

Chawla, its executive vice president; Herbert Rubinstein, its vice

president; Ronald Austin, a consultant for ISN; and Joseph Billings,

in-house counsel for ISN. Neither Roma nor Prem Malkani were at

the meeting. ISN and the Malkanis denied that any settlement agreement was reached at the meeting, so the district court held an evidentiary hearing on July 15, 18 and 20, 1994.

At the hearing ISN claimed that it called the meeting solely to present the merits of its case in the KCIA lawsuit and to seek Indiana's

cooperation in that lawsuit. Riese (of Indiana), on the other hand, tes-

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1 Two other named defendants are not parties to these appeals.

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tified that Billings (of ISN) indicated at the outset that the meeting

was "for settlement purposes."

Riese also testified that general settlement discussions took place

at the February 25, 1994, meeting. During these discussions he took

notes and recorded those areas in which he thought the parties were

agreeing. Later in the meeting he composed a list of terms that he

entitled "final agreement." He read each item out loud to secure ISN's

agreement. After Riese read the first term, Billings (ISN) told Chawla

(ISN), "We are settling, we are talking about settling everything."

Riese said that after he finished reading the items in his proposed

agreement, Billings (ISN) and Piper (Indiana) read back the same

items from their respective notes. Riese testified that the following

exchange took place next:

I said to Mrs. Chawla, I said now are you willing to commit

to this settlement -- to this framework for settlement? And

she says, I am. I says, you're willing to commit? And she

says, I am. And I said, we've got a deal.

The parties shook hands and the meeting ended. On the following

Monday Riese found urgent phone messages from Chawla at both his

office and home.

ISN witnesses testified that most of the meeting was devoted to

ISN's presentation of its strategy in the KCIA litigation. They denied

that a settlement agreement had been reached. Rubinstein and Austin,

for example, testified that Chawla had only committed to negotiate

further with Indiana.

ISN introduced evidence that the parties customarily reduced

agreements to writing before considering them binding. But several

Indiana witnesses testified that, in this case, the oral agreement was

simply to be "memorialized" in the form of an order and submitted

to the court.

After the hearing the district judge found that the parties had orally

agreed to settle the case. She found that Riese's notes contained the

terms of the settlement, which she set forth in her order of July 20,

1994, as follows:

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1. This case, including all claims and counterclaims BE,

and the same hereby IS, DISMISSED upon the following

terms agreed to by the parties;

2. ISN will immediately pay to Indiana its unreimbursed

fees and expenses incurred as of February 25, 1994, with

respect to the two bonds issued by Indiana on behalf of ISN

in the current litigation, as itemized between $161,000.00

and $200,000.00;

3. ISN will pay future expenses of VMI and counsel

(Michael Blake) as presented in itemized bills. Mr. Blake

will provide description of work and approximate costs

before proceeding;

4. ISN will attempt to mediate its dispute with Kansas

City, and Indiana will encourage Kansas City to mediate

with ISN;

5. ISN will continue to maintain in a separate account the

amount of One Million Seven Hundred Thousand and no

cents ($1,700,000), or some lesser amount of at least One

Million Dollars and no cents ($1,000,000) as may be agreed

to by Michael Blake and Joseph Billings, in unencumbered

liquid corporate assets as per this court's Order of September 28, 1993, to satisfy any of ISN's obligations to Indiana;

and

6. Indiana will fully cooperate with ISN in preparation for

the Kansas City litigation, and ISN will fully cooperate in

the preparation of that case.

Both parties filed post-hearing motions. Indiana asked the court to

clarify its July 20 order to specify that it retained continuing jurisdiction, and ISN filed a motion asking the court to reconsider its July 20

order. By order, dated November 3, 1994, the district court denied

both motions. ISN appeals the July 20 and the November 3 orders.

On December 12, 1994, Indiana filed a motion to enforce the judgment of the court. Indiana claimed that ISN had refused to comply

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with a provision of the settlement agreement and asked the district

court to issue a writ of execution pursuant to Fed. R. Civ. P. 69 and

70 to force compliance. By order dated April 19, 1995, the district

court denied Indiana's motion. On May 10, 1995, the court denied

Indiana's motion for reconsideration. Indiana appeals the April 19 and

May 10 orders. We consolidated the two appeals.

II.

We turn first to ISN's appeal from the district court's determination

that the parties reached a settlement agreement. The district court's

decision rests on factual findings which will be upheld unless clearly

erroneous. Moore v. Beaufort County, 936 F.2d 159, 162 (4th Cir.

1991).

ISN first argues that the parties merely agreed to a"framework of

settlement" (which is unenforceable) rather than a final agreement.

We disagree. The district judge found that Riese (Indiana) offered to

settle the case when he said he was willing to commit to the terms discussed. Likewise, the court found that Chawla (ISN) accepted when

she said she was "willing to commit." The district judge found that

Chawla understood that she was committing to a final settlement.

There were no words restricting the import of her willingness to

"commit." Moreover, earlier in the meeting ISN representatives had

discussed who had authority to commit and what stage the settlement

discussions had reached. Billings (ISN) stated at the outset of the

meeting that the discussions were for settlement purposes. Riese testified that later in the meeting Billings reiterated that the parties were

still negotiating. However, after further discussions, Billings informed

Chawla that the parties were "talking about settling everything." This

progression indicated to the district judge that Chawla understood she

was agreeing to a final settlement.

The district judge thoroughly explained why she credited Indiana's

witnesses over ISN's. For instance, she considered it significant that

at the hearing Billings (ISN) neither produced his notes from the

meeting nor testified as to their contents. Yet all Indiana representatives who were at the meeting testified at the hearing. She also noted

that Chawla had placed urgent calls on Monday or Tuesday following

the meeting. The district judge felt that had there simply been an

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agreement to negotiate further, there would have been no urgency to

the calls. Finally, she found that ISN had a strong motive to settle the

case: ISN wanted to enlist Indiana's assistance in the KCIA litigation

and avoid battling on two fronts. We think the evidence on which the

district court relied and the inferences drawn from it amply support

the finding that the parties reached a final agreement.

ISN next argues that the parties did not intend to bind themselves

until a written agreement was drafted and signed. ISN says that the

parties customarily settled complex cases in writing, not orally. We

reject this argument. Riese, Piper and Blake all testified that the parties intended merely to "memorialize" the agreement to which they

already considered themselves bound. Moreover, Riese testified that

he often settled matters with other parties by oral agreement. We

think the district court's finding that the parties considered themselves

bound by the oral agreement is not clearly erroneous.

Third, ISN says the purported agreement is invalid because the

Malkanis did not agree to the settlement. ISN insists that the district

court made no finding that Chawla had authority to bind the Malkanis. We disagree. The district court "conclude[d] as a matter of fact

that Ms. Chawla [had] the authority to deal with this litigation." We

read this as a finding that Chawla had authority to settle on behalf of

all defendants. That finding, given Chawla's role and position, is not

clearly erroneous.

Finally, ISN argues that no agreement was reached because the

purported terms were too indefinite, vague and incomplete. For

instance, the agreement required ISN to pay Indiana between

$161,000 and $200,000 for expenses and to maintain an account containing between $1 million and $1.7 million, the precise amount to be

negotiated. And it required Indiana to "fully cooperate" with ISN in

the KCIA litigation.

Under Maryland law,2 a contract is not valid unless "the parties

express themselves in such terms that it can be ascertained to a reasonable degree of certainty what the agreement meant. If the agree-

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2 The parties agree that Maryland law governs.

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ment is so vague and indefinite that it is not possible to collect from

it the full intention of the parties, it is void." Marmott v. Maryland

Lumber Co., 807 F.2d 1180, 1183 (4th Cir. 1986) (quoting Strickler

Engineering Corp. v. Seminar, Inc., 122 A.2d 563, 568 (Md. 1956)),

cert. denied, 482 U.S. 929 (1987). In this case, we think the terms are

sufficiently definite. First, with regard to the expenses, the figure of

$161,000 was based upon the January 21, 1994, computation which

Indiana had submitted to ISN prior to the February 25 meeting. The

parties understood that Indiana had incurred additional expenses

between January 21 and February 25 which would be paid under the

settlement but had not yet been itemized. The parties agreed that the

expenses would be capped at $200,000. Second, the requirement that

ISN maintain $1.7 million in a separate account was a continuation

of an agreement described in a stipulation the parties had filed with

the court on September 28, 1993. The terms of the deposit were

detailed in the stipulation. Finally, the district court found that "fully

cooperate" meant providing ISN access to Indiana's legal and consulting expertise. In addition, we think "fully cooperate" is no more

ambiguous than other terms, such as "best efforts," commonly found

in commercial contracts. In short, we conclude that the terms of the

agreement are sufficiently definite.

III.

We now turn to Indiana's appeal. Indiana first argues that the trial

court's order of July 20, 1994 is a judgment, and therefore the court

erred by refusing to enforce it pursuant to Fed. R. Civ. P. 69 or 70.

Indiana relies on cases which hold that courts have the inherent

authority to summarily enforce settlement agreements and enter judgments based upon the agreements. See, e.g., Petty v. Timken Corp.,

849 F.2d 130, 133 (4th Cir. 1988). We reject Indiana's argument.

Rules 69 and 70 have no application here. Rule 69 prescribes procedures for enforcing "judgment[s] for the payment of money," and

Rule 70 addresses judgments directing a party to perform specific

acts. The district court's July 20 order neither entered a money judgment against ISN, nor ordered it to perform specific acts. The order

simply dismissed the lawsuit based on the settlement. The district

court was not obligated to enter the judgment Indiana seeks based

upon the agreement merely because it had the authority to do so.

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Indiana next argues that the district court erred in ruling that it had

not retained jurisdiction of the case to enforce the settlement. This

argument is meritless. A court may, in its discretion, retain jurisdiction over a settlement agreement by making the parties' obligation to

comply with the settlement agreement a part of the dismissal order.

See Kokkonen v. Guardian Life Ins. Co. of America, 114 S. Ct. 1673,

1677 (1994). A district court may evidence an intent to retain jurisdiction by including in the dismissal order a separate provision, such as

a provision expressly retaining jurisdiction over the settlement agreement, or by incorporating the terms of the settlement agreement in the

order. See id. Here, in her denial of Indiana's motion for reconsideration, the district judge stated that she did not intend to retain jurisdiction and did not incorporate the settlement terms in the order. In light

of the judge's clear statement of intent, we see no reason to reverse

her conclusion that she lacked jurisdiction to enforce the settlement.

Thus, as the district judge stated, Indiana's remedy is to file suit for

breach of contract or to move to reinstate the original suit pursuant

to Fed. R. Civ. P. 60(b)(6). See Fairfax Countywide Citizens Ass'n v.

Fairfax County, 571 F.2d 1299, 1302-03 (4th Cir.), cert. denied, 439

U.S. 1047 (1978).

IV.

The district court's decision in each appeal is affirmed.

AFFIRMED

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