H. v. Byard, etc

• Court: Court of Appeals for the First Circuit
• Decided: November 30, 1998
• Docket: 98-1520
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1520



                   ALISON H., p/p/a DONALD H.,



                      Plaintiffs, Appellees,



                                v.



                 ROBERT B. BYARD, in his capacity

                  as Superintendent of Schools,

            and the BELCHERTOWN PUBLIC SCHOOL SYSTEM,



                     Defendants, Appellants.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael A. Ponsor, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

           Coffin and Bownes, Senior Circuit Judges.


Regina Williams Tate, with whom Mary L. Gallant, and Murphy,

Hesse, Toomey & Lehane, were on brief for appellants.

     Claire L. Thompson, with whom Doherty, Wallace, Pillsbury and

Murphy P.C. were on brief for appellees.


November 25, 1998


BOWNES, Senior Circuit Judge.  This is an appeal by

defendants-appellants, the Belchertown Public School System and

Robert B. Byard, Superintendent of Schools, from a summary judgment

of the district court awarding attorney's fees and costs to

plaintiffs-appellees, Alison H., p/p/a Donald H.

  The attorney's fees award was the aftermath of a dispute

between plaintiffs and defendants over the special education

services to be provided Alison H. by defendants.  The settlement,

which is not attacked by plaintiffs, was entered into prior to a

hearing before the Massachusetts Bureau of Special Education

Appeals.  After settlement, plaintiffs demanded attorney's fees

from defendants on the basis that they were the prevailing parties

and were therefore entitled to attorney's fees pursuant to 20

U.S.C.  1415(i)(3)(B).  After defendants rejected the demand for

attorney's fees, suit was brought seeking an order awarding

plaintiffs attorney's fees.

                                I.

  Defendants raise five issues on appeal.  The only one we

discuss is dispositive of the appeal so we do not consider the

others, interesting and intriguing as they may be.  We find and

rule that plaintiffs waived the claim to attorney's fees under the

terms of the settlement agreement.  Because this is an appeal from

a grant of summary judgment our standard of review is de novo. 

DeNovellis v. Shalala, 124 F.3d 298, 305 (1st Cir. 1997); Dubois v.

United States Dep't of Agric., 102 F.3d 1273, 1283 (1st Cir. 1996),

cert. denied,__ U.S. __, 117 S. Ct. 2510 (1997); Coyne v. Taber

Partners I, 53 F.3d 454, 457 (1st Cir. 1995).

     Plaintiffs cite a host of Massachusetts cases to the

effect that "abuse of discretion" is the standard of review in

Massachusetts.  Because the standard of review is a procedural

matter, not a substantive one, we are bound by federal law.  It

makes no difference, however, in this case because we rule that the

district made an error of law on the issue before us.  This

constitutes an abuse of discretion.  In Klonoski v. Mahlab, 156

F.3d 255, 276 (1st Cir. 1998), in which we said:

     As the Supreme Court has stated, '[a] district

     court by definition abuses its discretion when

     it makes an error of law.'  Koon v. UnitedStates, 518 U.S. 81, 94-102, 116 S. Ct. 2035,

     135 L. Ed. 2d 392 (1996); see United States v.

     Marroquin, 136 F.3d 220, 223 (1st Cir. 1998);

     Golas v. Home View, Inc., 106 F.3d 1, 3 (1st

     Cir. 1997).



                            The Facts

     Alison H. is a minor female who resides with her parents

in Belchertown, Massachusetts.  The Belchertown Public School

System is responsible for providing special education to students

with learning disabilities.  It began providing special education

services to Alison at the beginning of the fifth grade; they were

discontinued halfway through grade five.  From then on, Alison's

parents had a running dispute with the school as to the special

education services Alison should receive and where they would be

given.  No agreement could be reached on an appropriate

individualized educational plan (IEP) for Alison.

     On January 30, 1996, plaintiffs retained Attorney Claire

Thompson to represent them in the dispute with the school.  She

filed a request for a hearing with the Bureau of Education Appeals. 

Thereafter Attorney Thompson negotiated for the parents on the

question of an appropriate IEP for Alison.  During the

negotiations, the plaintiffs made clear that they thought that

White Oak School was the most appropriate placement for Alison and

would meet their IEP demands.  White Oak School is a private

institution specializing in special education for children with

learning disabilities.

     Defendants sent a proposed new IEP for Alison on June 28,

1996 to Attorney Thompson.  She replied on July 31, 1996, making

additional demands and proposing further conditions.  On August 21,

1996, the attorney for the school faxed the following letter to

Attorney Thompson:

        Rick McInerney received a copy of your

     letter in which you requested additional

     changes in the IEP for Allison.  After Mr.

     McInerney's review of your letter and

     requested changes, he came to the conclusion

     that it was unlikely that you or your clients

     would ever be satisfied with the IEP developed

     by Belchertown or the educational program

     provided by Belchertown.  Therefore, he

     contacted White Oak School in order to

     ascertain if it had an available place for

     Allison to attend school starting in September

     1996.  He has confirmed that White Oak does

     have a space available for Allison and

     therefore, would offer to Mr. and Mrs. H. the

     opportunity for Allison to attend White Oak

     for the 1996-1997 school year.  As a condition

     of finalizing this agreement, Belchertown

     would be looking for the withdrawal of the

     request for hearing, which hearing is

     scheduled for September 11, 1996, as well as a

     release of any and all claims arising prior to

     the execution of the agreement.  If your

     clients are interested in this offer, please

     contact me by Friday, August 23, 1996, since

     White Oak is requiring an answer by that date

     in order to continue to hold a place for

     Allison for the 1996-1997 school year.



        Should you have any further questions,

     please feel free to contact me.  



(Emphasis added.)



     Within a matter of hours Attorney Thompson replied by

fax:

     On behalf of Don and Judy H., I hereby accept

     Belchertown's offer to place Alison at White

     Oak School for the 1996-1997 school year. 

     Please forward a new I.E.P. for the H's

     signature.



     The school prepared a new IEP for Alison's attendance at

White Oak School.  It was accepted by the parents on September 3,

1996.  The scheduled hearing before the Bureau of Special Education

Appeals was canceled.  Alison attended White Oak School for the

1996-97 school year.  Belchertown School paid a total of $22,295.20

for Alison's tuition and transportation.

     By letter dated November 6, 1996 Attorney Thompson asked

that Belchertown School pay her attorney's fees "totaling $6,112.40

through August 26, 1996."  The letter also stated:

        Unless the parties are able to negotiate

     settlement by November 30, 1996, I will be

     compelled to file a Complaint for attorney's

     fees in U.S. District Court.  (Emphasis in

     original.)



Belchertown rejected the demand for attorney's fees.  Defendants

took the position that plaintiffs had waived any claim for

attorney's fees by accepting Belchertown's offer to place Alison in

White Oak School.  Plaintiff's complaint asserting their right to

attorney's fees was filed on December 6, 1996.

                               II.

     The issue is a classic one of contract construction:  did

plaintiffs' acceptance of Belchertown's offer to place Alison in

White Oak School subject to the condition that there be "a release

of any and all claims arising prior to the execution of the

agreement" constitute a waiver of plaintiffs' claim for attorney's

fees.  The district court ruled that there was no waiver.  After

finding that the plaintiffs were the prevailing parties, it stated:

        Second, I do not believe that there was any

     waiver here.  There was never a release sent

     by the defendants to the plaintiffs.  The

     language refers to things occurring prior to

     this agreement while the entitlement to

     attorney's fees did not really arise until

     after the agreement was executed.  The

     drafting was ambiguous and my normal tenets of

     construction is that these ambiguities should

     be construed in the plaintiffs' favor and

     against the drafter.



        In addition, the plaintiffs' response to

     the offer, it seems to me, clearly only

     accepted the offer to place Alison at White

     Oak School and did not even purport to give up

     anything else, so there was no waiver.



     With respect, we disagree.  We analyze the ruling

sentence by sentence.  It is true that a release was never sent by

defendants to plaintiffs for execution.  It would have been better

if this had been done.  But the offer letter neither states nor

suggests that a release would be sent.  We think, moreover, that

the plain and unambiguous language of the offer meant that

acceptance by the plaintiffs meant they had released the defendants

from "any and all claims arising prior to the execution of the

agreement."  Surely the phrase "any and all claims" encompasses

attorney's fees which are a major factor and bone of contention in

this type of litigation.  See e.g., Kathleen H. v. Massachusetts

Dep't of Educ., 154 F.3d 8, 14 (1st Cir. 1998); Fowler v. Unified

Sch. Dist. No. 259, 128 F.3d 1431, 1439 (10th Cir. 1997); County of

San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458,

1468 (9th Cir. 1996).  

     The next sentence is puzzling.  The court, after noting

that "[t]he language refers to things occurring prior to this

agreement," states that the "entitlement to attorney's fees did not

really arise until after the agreement was executed." It is true

that a claimant cannot collect attorney's fees in such a case until

it prevails, but the amount of the entitlement was based on

services rendered prior to execution of the settlement.  It is what

was asked for in the First Amended Complaint.  Paragraph A asks

that the court:

        A.     Award the plaintiffs their reasonable

               attorney's fees and costs in the sum of

               $6,112.40 through August 26, 1996;  



(Emphasis ours.)



State of New Hampshire v. Adams, No. 98-1244, slip op. at 6-7 (1st

Cir. Nov. 12, 1998).

     The court then found the contract ambiguous and construed

it in favor of the plaintiffs and against the defendants.  We rule

to the contrary.

     We realize that the question of ambiguity is a judgment

call, but there are established guidelines that lead to a well

trodden path.  A contract is formed upon acceptance of an offer. 

Ismert and Assocs., Inc. v. New England Mut. Life Ins. Co., 801

F.2d 536, 541 (1st Cir. 1986).

        "The question of whether a contract term is

     ambiguous is one of law for the judge."  Allen,

     967 F.2d at 698; accord Boston Five Cents Sav.

     Bank, 768 F.2d at 8; Jefferson Ins. Co. v.

     Holyoke, 23 Mass. App. Ct. 472, 503 N.E.2d

     474, 476 n.4, rev. denied, 399 Mass. 1104, 506

     N.E.2d 146 (1987).  A contract is not

     ambiguous simply because litigants disagree

     about its proper interpretation.  See Papago

     Tribal Util. Auth. v. FERC, 723 F.2d 950, 955

     (D.C. Cir. 1983), cert. denied, 467 U.S. 1241,

     104 S. Ct. 3511, 82 L. Ed. 2d 820 (1984). 

     Rather, a contract, or a set of documents

     which in the ensemble comprise a contract, is

     considered ambiguous only when the language "is

     reasonably prone to different interpretations." 

     Fowler v. Boise Cascade Corp., 948 F.2d 49, 54

     (1st Cir. 1991).  Stated another way, contract

     language which "is susceptible to differing,

     but nonetheless plausible, constructions . . .

     is ambiguous."  Allen, 967 F.2d at 700; see

     also Fashion House, Inc. v. K Mart Corp., 892

     F.2d 1076, 1083 (1st Cir. 1989).



FDIC v. Singh, 977 F.2d 18, 22 (1st Cir. 1992).

     Under Massachusetts law, "[w]here the wording

     of the contract is unambiguous, the contract

     must be enforced according to its terms." 

     Edmonds v. United States, 642 F.2d 877, 881

     (1st Cir. 1981).  We see no basis for

     rewriting the contract whether or not, as an

     original proposition, it could have been

     better written as [Liberty] now proposes.



Liberty Mut. Ins. Co. v. Gibbs, 773 F.2d 15, 17 (1st Cir. 1985).

     In the final sentence of this ruling, the court held that

"the plaintiff's response to the offer . . . clearly only accepted

the offer to place Alison at White Oak School and did not even

purport to give up anything else, so there was no waiver."  This

reads out of the offer letter the phrase, "as a condition of

finalizing this agreement . . . ."  One of the conditions was "a

release of any and all claims arising prior to the execution of

this agreement."  It was the plaintiffs who had a duty to object or

at least raise a question about the conditions imposed upon them by

the offer.  Indeed, the last sentence of the offer letter states

clearly:  "Should you have any further questions, please feel free

to contact me."

     It was not until long after the new IEP had been accepted

(Sept. 3, 1996) and Alison had been placed in White Oak School and

the hearing before the Bureau of Special Education Appeals had been

dismissed (Sept. 23, 1996) that Attorney Thompson made a demand for

attorney's fees (Nov. 6, 1996).  If there was going to be a demand

for attorney's fees, it should have been made before the clear

conditional offer of defendants was accepted.  We do not think that

plaintiffs should be able take advantage of defendant's clear

conditional offer and more than two months later make a demand for

attorney's fees. 

     We hold that the offer letter and its prompt acceptance

by plaintiffs constituted a contract between the parties.  We rule

that the contract was unambiguous.  The phrase "a release of any

and all claims arising prior to the execution of the agreement"

clearly encompasses plaintiff's attorney's fees.  Plaintiffs

received the benefits of the contract.  To enable them to avoid the

release obligation of the contract would be unjust and contrary to

the basic principles of contract law.

     The judgment below is reversed.  Judgment shall enter for

the defendants.  Costs on appeal awarded to defendants.  So

ordered.