24CA0864 Stansberry v Elkerton 05-22-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0864 Weld County District Court No. 20CV30844 Honorable Todd Taylor, Judge
Christopher Stansberry and Cheryl Stansberry,
Plaintiffs-Appellants,
v.
Blyth Elkerton,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE PAWAR Grove, J., concurs Berger*, J., dissents
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025
Leventhal Puga Braley P.C., Jim Leventhal, Bruce L. Braley, Julia T. Thompson, Nathaniel E. Deakins, Denver, Colorado, for Plaintiffs-Appellants
Ross-Shannon & Proctor, P.C., Bradley Ross-Shannon, Gregory F. Szydlowski, Lakewood, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Plaintiffs, Christopher and Cheryl Stansberry, appeal the
district court’s judgment in favor of defendant, Blyth Elkerton.
Specifically, the Stansberrys challenge the court’s ruling that,
before the Stansberrys filed suit against Elkerton, the parties
entered into an enforceable settlement agreement that barred the
Stansberrys’ claims. We affirm.
I. Background
¶2 Elkerton and the Stansberrys were involved in a motor vehicle
accident that injured Christopher Stansberry. Elkerton was
insured by State Farm Mutual Automobile Insurance Company
(State Farm) under a liability policy with limits of $100,000.
¶3 After the accident, the Stansberrys’ lawyer engaged in
settlement negotiations with a State Farm claims representative.
The lawyer made a policy-limits demand to State Farm.
¶4 The claims representative responded in two emails, sent an
hour apart on the same day. Attached to the first email was a
release that constituted a settlement offer. The release provided
that State Farm would pay $100,000 in exchange for releasing,
discharging, and precluding any claims arising out of the accident.
About an hour later, with no intervening communications, the
1 claims representative sent another email to the lawyer with further
details about a potential settlement. This second email addressed
liens held by Christopher Stansberry’s medical providers and how
these and any other liens would be satisfied.
¶5 The Stansberrys’ lawyer responded two days later. She
informed State Farm that there were no liens, just a subrogation
interest, and that the Stansberrys would “take care of” that interest.
The email then asked State Farm to make the settlement check
payable to her law firm and Christopher Stansberry, and included a
W9 tax form (which allowed State Farm to report to the Internal
Revenue Service that it had paid the settlement funds to the law
firm). The lawyer did not sign or send the release.
¶6 Two months later, with no signed release and no settlement
check issued, the Stansberrys sued Elkerton for damages arising
out of the accident. Elkerton answered that an enforceable
settlement agreement barred the Stansberrys’ claims. Elkerton
then moved to enforce the agreement, and the district court granted
the motion and dismissed the Stansberrys’ claims.
¶7 The Stansberrys appealed, arguing that the emails described
above did not establish an enforceable settlement agreement. A
2 division of this court reversed. Stansberry v. Elkerton, (Colo. App.
No. 22CA1715, Oct. 12, 2023) (not published pursuant to C.A.R.
35(e)). The division explained that the emails contained conflicting
evidence about whether an enforceable settlement agreement
existed. Id. The division therefore remanded to the district court
with directions to conduct an evidentiary hearing and determine
whether there was an enforceable agreement. Id.
¶8 At the evidentiary hearing, the Stansberrys’ lawyer and the
claims representative were the only witnesses. The district court
placed “little weight” on the witnesses’ respective opinion testimony
about whether the parties had entered into an enforceable
agreement. But the court did not expressly discount other
testimony the witnesses gave.
¶9 Ultimately, based on its assessment of the evidence, the court
held that there was an enforceable settlement agreement and again
dismissed the Stansberrys’ claims. The Stansberrys appeal that
ruling, arguing that the court erred by ruling that there was an
enforceable settlement agreement.
3 II. We Cannot Disturb the District Court’s Ruling
A. Standard of Review
¶ 10 The parties disagree on what standard of review applies here.
Elkerton urges us to review for clear error. The Stansberrys argue
that, even though the district court based its ruling on its weighing
of the evidence after an evidentiary hearing, we should review de
novo. We agree with Elkerton.
¶ 11 Whether an enforceable contract exists is a question of fact.
Yaekle v. Andrews, 195 P.3d 1101, 1111 (Colo. 2008). And we
review questions of fact for clear error. See, e.g., Black v. Black,
2018 COA 7, ¶ 87. This standard of review recognizes that, unlike
us, the trier of fact is in the best position to resolve disputed factual
issues, determine witness credibility, assign weight to testimony,
and draw inferences from the evidence. See Target Corp. v. Prestige
Maint. USA, Ltd., 2013 COA 12, ¶ 24.
¶ 12 The Stansberrys recognize that whether a contract exists is
ordinarily a question of fact and that we review questions of fact for
clear error. Nevertheless, they assert de novo review is appropriate
here under the exception articulated in Sumerel v. Goodyear Tire &
Rubber Co., 232 P.3d 128 (Colo. App. 2009).
4 ¶ 13 In Sumerel, the trial court ruled on the enforceability of a
settlement agreement based only on affidavits and emails the
parties exchanged. Id. at 132. The trial court did not hold an
evidentiary hearing. Id.
¶ 14 On appeal, a division of this court reviewed de novo. Id. The
division explained that this was appropriate because the facts were
undisputed and the pertinent documents were before it. Id.
Effectively, the Sumerel division was in the exact same position as
the trial court to review the relevant evidence and determine
whether an agreement existed. We cannot say the same here.
¶ 15 Unlike Sumerel, the facts here were disputed and the district
court held an evidentiary hearing to resolve them. After hearing the
evidence, the court made credibility determinations, weighed the
evidence, and determined that there was an enforceable agreement
based on those assessments. Consequently, unlike the Sumerel
division, we are not just as well positioned as the district court to
assess the evidence.
¶ 16 The Stansberrys argue otherwise, urging us to follow Sumerel
nevertheless because the district court “rejected all of the witness
testimony at the evidentiary hearing and based its decision solely
5 on the emails and documentary evidence that was previously
available . . . prior to the hearing.” We disagree with this
assessment of the record. The only part of the claims
representative’s testimony the court discounted was her
“characterization as to whether the parties had reached a meeting
of the minds.” The court did this because the claims representative
“is not a lawyer and any legal conclusions she was encouraged to
make by counsel are neither persuasive nor helpful.” Yet the claims
representative’s testimony was far broader than just this legal
conclusion. Among other things, she also explained her intent in
sending each of the relevant emails and her understanding of the
parties’ respective positions at those times and others.
¶ 17 As for the Stansberrys’ lawyer, the only portion of her
testimony the court specifically discounted was her assertion that
“State Farm’s purported insistence on a ‘hold harmless’ provision
[in the second email] prevented the parties from reaching a full
settlement agreement.” The court explicitly relied on other parts of
her testimony, including that “she had accepted the payment
amount and subrogation terms.”
6 ¶ 18 In sum, we reject the Stansberrys’ assertion that, as in
Sumerel, the district court’s ruling was based only on the
documentary evidence. True, the court ruled that the documentary
evidence was “the more credible evidence of the parties’ state of
mind and intentions.” But this does not mean that the court
ignored all the testimony from both witnesses.
¶ 19 Moreover, even if the district court had discounted every word
of testimony at the evidentiary hearing, we are unaware of any
authority that would allow us to review the resulting ruling —
issued after and based on an evidentiary hearing at which we were
not present — de novo. Sumerel does not stand for this proposition
because there was no evidentiary hearing in that case.
¶ 20 For these reasons, we review the district court’s ruling for
clear error. Under this standard of review, we are bound by the
court’s determination as long as it is supported by competent
evidence in the record. Yaekle, 195 P.3d at 1111. We cannot
reweigh the evidence or substitute our judgment for that of the trier
of fact. Id.
7 B. Some Competent Evidence Supports the Ruling Below
¶ 21 An enforceable contract is formed when the parties mutually
assent to its terms and there is bargained-for consideration. Univ.
of Denver v. Doe, 2024 CO 27, ¶ 47. Often, mutual assent occurs
when an offeror makes an offer and an offeree accepts it. See
Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008).
Acceptance happens when an offeree engages in “words or conduct
that, when objectively viewed, manifests an intent to accept an
offer.” Id.
¶ 22 In its ruling, the district court focused on the effect of the
three emails discussed above: the two sent by the claims
representative on the same day and the Stansberrys’ lawyer’s
response two days later. The district court found offer, acceptance,
and mutual assent to the material terms of the settlement
agreement in these emails. The terms of the agreement, according
to the district court, were that State Farm would pay the
Stansberrys the full policy limit of $100,000 in exchange for the
release of all claims and the Stansberrys would be responsible for
satisfying any outstanding subrogation interests.
8 ¶ 23 The Stansberrys argue that this was error because the two
State Farm emails constituted two materially different offers, with
the second offer rendering the first offer legally void and impossible
to accept. They contend that their lawyer’s response was directed
to the first offer, which was no longer on the table once it was
superseded by the claims representative’s second email. Thus,
according to the Stansberrys, there was no acceptance of a legally
valid offer. We disagree because we conclude that there was at
least some competent evidence in the record that State Farm’s two
emails constituted a single offer, the terms of which the lawyer
accepted in her response.
¶ 24 Nobody disputes that State Farm’s first email offered $100,000
in exchange for the release of all claims against Elkerton, known or
unknown, including those based on liens or subrogation interests.
Then came the second email:
Please also note, we are outstanding the final Conduent Lien. This document is necessary in order for State Farm to issue payments accordingly when the signed release is returned.
However, if this document is either unavailable or your office would rather request for payments in full, including payments for the
9 known liens, State Farm requires a letter that confirms Mr. Christopher Stansberry will agree to hold harmless State Farm Insurance, Mr. Blyth Elkerton and Mrs. Cheryl Elkerton from, and indemnify it for, any other claims from any medical providers, hospitals, health insurance carriers, or other payers of medical bills for treatment provided to her/him for the bodily injuries he/she sustained on August 31st, 2019.
¶ 25 Two days later, the Stansberrys’ lawyer responded: “The
language in the Release covers the Conduent subrogation interest.
There is no lien. We will take care of the subrogation interest. Here
is a W9. Please make the check payable to [my law firm] and
Christopher Stansberry.”
¶ 26 Both of State Farm’s emails provided that State Farm would
pay $100,000 in exchange for not being liable for any further claims
arising out of the accident. Both emails also contemplated that any
liens or subrogation interests would be paid out of State Farm’s
$100,000 policy-limits payment. State Farm’s second email did not
alter these terms or suggest new ones. Instead, the second email
simply asked whether the Stansberrys would like State Farm to pay
medical providers directly or if the Stansberrys would like to pay
the medical providers themselves. Under either option, Elkerton
10 would no longer be liable for any claims arising out of the accident,
State Farm would still pay $100,000, and any liens or subrogation
interests would be paid from that $100,000, leaving the Stansberrys
with $100,000 minus the amount of the liens or subrogation
interests. And despite the dissent’s suggestion, neither option
precluded the Stansberrys from attempting to negotiate down the
amount of the subrogated interest.
¶ 27 The Stansberrys’ lawyer accepted these material terms. She
clarified that there was no lien and that the Stansberrys would pay
the subrogation interest once State Farm paid them the full
$100,000. Thus, the emails themselves are some competent
evidence supporting the district court’s determination that an
11 enforceable settlement agreement existed.1 We therefore perceive
no clear error and must affirm the court’s ruling.
III. Disposition
The judgment in favor of Elkerton is affirmed.
JUDGE GROVE concurs.
JUDGE BERGER dissents.
1 Our reliance on the emails themselves as some competent
evidence to support the district court’s ruling is not in conflict with our conclusion that the district court relied on more than just the documentary evidence to resolve whether there was an enforceable agreement. The two inquiries are separate: (1) what is the scope of the evidence the district court considered when making its determination; and (2) is there any evidence in the record that supports the court’s determination. Put another way, our conclusion that the documentary evidence constituted some competent evidence supporting the district court’s ruling does not mean that the documentary evidence was the only evidence that the court considered or that supported the ruling.
12 JUDGE BERGER, dissenting.
¶ 28 The correct disposition of this appeal turns on the legal
consequences of State Farm’s second October 14, 2020 email. If
that email made a material change or alteration of the offer
contained in State Farm’s first October 14, 2020 email, the offer
contained in the first October 14 email terminated by operation of
law. Restatement (Second) of Conts. § 43 (Am. L. Inst. 1981)
(Restatement); Varney Ent. Grp., Inc. v. Avon Plastics, Inc., 275 Cal.
Rptr. 3d 394, 403 (Ct. App. 2021) (applying section 43 to conclude
that a second settlement offer containing terms materially
inconsistent with the first offer impliedly revoked the first).
¶ 29 Because that offer terminated, it was incapable of acceptance
and a contract could not be formed on the basis of the original offer.
Varney, 275 Cal. Rptr. 3d at 404 (holding that the second
settlement offer’s revocation of the first offer “terminated [the
offeree’s] power to accept it”). To the extent the second October 14
For the purposes of this analysis, it makes no difference whether the first offer was the Stansberrys’ policy limits demand or the offer made by State Farm in its first October 14 email. The legal analysis is identical. For clarity, I refer to State Farm’s first October 14 email as the “offer.”
13 email created a superseding offer that was capable of acceptance,
the documentary evidence conclusively demonstrates that it was
not accepted by the Stansberrys.
¶ 30 State Farm’s first October 14 email made a simple and
unconditional offer: in return for execution of the release set forth
in full in the email, State Farm would pay to the Stansberrys (not
someone else) the policy limits of $100,000. It was then up to the
Stansberrys to either pay the amount claimed by the holder of the
subrogation interest or enter into negotiations with the holder of the
subrogation interest and resolve the amount of the subrogation
interest. This proposed release said nothing about, and plainly did
not require, a separate indemnity/hold harmless provision as a
condition of the settlement.
¶ 31 The second October 14 email was vastly different. It did not
give the Stansberrys the unconditional right to receive the $100,000
from State Farm. Instead, it presented the Stansberrys with two
options, neither of which was stated or even suggested in the first
October 14 email: (1) to accept an amount net of the amount of the
subrogated interest, or (2) to execute a separate indemnity
agreement (nowhere addressed in the first October 14 email) to hold
14 State Farm harmless for third-party medical claims, in which case
State Farm would tender the $100,000 to the Stansberrys.
¶ 32 The first option would necessarily have resulted in a payment
to the Stansberrys of an amount less than $100,000. And because
the record discloses that Christopher Stansberry’s medical
expenses exceeded $200,000, this option could well have resulted
in the Stansberrys receiving nothing from State Farm. An option
under which the Stansberrys would receive nothing in exchange for
releasing their claims plainly was not consistent with the
unconditional offer in the first October 14 email. The mere
opportunity to attempt to negotiate downward the subrogation
claim held by Conduent was a substantial benefit to the
Stansberrys that was wholly absent from the first alternative offered
by State Farm in its second October 14 email.
¶ 33 “An offeree’s power of acceptance is terminated when the
offeror takes definite action inconsistent with an intention to enter
into the proposed contract and the offeree acquires reliable
information to that effect.” Restatement § 43. For the reasons I
have articulated, because the second October 14 email introduced
an additional, material term, it was inconsistent with an intention
15 to enter into a contract on the terms of the first October 14 email
and therefore, the Stansberrys’ power to accept the offer contained
in the first October 14 offer was terminated. See also Restatement
§ 42 (“An offeree’s power of acceptance is terminated when the
offeree receives from the offeror a manifestation of an intention not
to enter into the proposed contract.”).
¶ 34 Multiple courts have held that an indemnity provision in a
settlement agreement can be a material term, the addition of which
in a subsequent offer would terminate the first. Consistent with
this principle, a federal court in Massachusetts held that the
inclusion of an indemnity provision in a purported acceptance
introduced an additional material term that rendered the
acceptance a counteroffer. D’Agostino v. Fed. Ins. Co., 969 F. Supp.
2d 116, 129 (D. Mass. 2013); see also Lawrence v. Hutchinson, 204
P.3d 532, 540 (Idaho Ct. App. 2009) (where parties reached
agreement on monetary amount of settlement but not indemnity
language, court found that there remained material term left to be
negotiated and thus no enforceable agreement); Paul R. Ponfil Tr. v.
Charmoli Holdings, LLC, 2019 WI App 56, ¶¶ 20-26 (where parties’
actions made materiality of an indemnity provision evident and
16 negotiations on the provision were ongoing, court could not find an
integrated enforceable settlement agreement); Collins v. Mike’s
Trucking Co., 2005-0238, p.10 (La. App. 1 Cir. 5/5/06) (where a
dispute regarding an indemnity provision remained, no enforceable
settlement agreement formed).
¶ 35 In his briefing, Elkerton conceded that State Farm sent the
second October 14 email “to ensure that State Farm and [Elkerton]
would be protected from any Conduent lien.” But, as the district
court recognized, the proposed release already addressed this
precise subject. Evidently not content with the language of the
release contained in its first October 14 email, State Farm
demanded a separate and additional agreement as a condition to
the tender of the $100,000 policy limits. Its own actions prevent
State Farm from plausibly contending that its demand for a
separate indemnity agreement was not a material term.
¶ 36 Importantly, we don’t know what words would have satisfied
State Farm (or would have been acceptable to the Stansberrys in
the indemnity provision) precisely because the parties never
negotiated that term. The parties could have been deadlocked on
the language of the indemnity agreement. This is precisely the
17 situation the Idaho appellate court addressed in Lawrence v.
Hutchinson, where the court held there was no contract because the
indemnity agreement language had not been negotiated or agreed
upon. 204 P.3d at 540.
¶ 37 That ends or should have ended both the district court’s and
the majority’s inquiries, leading inexorably to the conclusion that
there was no enforceable settlement agreement. Under the law of
contracts, it makes no difference whether the Stansberrys’ lawyer
intended on October 16 to accept the offer contained in the first
October 14 email. That offer was no longer capable of acceptance.
¶ 38 Despite all of this, in a finding central to its judgment, the
district court stated “that a meeting of the minds occurred when
Thompson [the Stansberrys’ lawyer] sent the October 16 email.”
However, because that offer — the offer to pay the Stansberrys
$100,000 — had been terminated by operation of law when State
Farm communicated its second October 14 email, this finding
cannot stand, whether we review for clear error or de novo.
¶ 39 Treating State Farm’s second October 14 email as a
superseding offer, the undisputed writings demonstrate that the
Stansberrys rejected it. By responding that the original release
18 covered the subrogation interest and that the Stansberrys would
“take care of” it, this message unambiguously rejected State Farm’s
email offering either the full proceeds (if Stansberry agreed to the
indemnity/hold harmless provision) or an amount of the proceeds
after deducting the subrogation interest amount. Instead,
Thompson did not accept any offer or counteroffer contained in the
second October 14 email. At most, Thompson’s request to revert to
the original offer contained in the first October 14 email was a
counteroffer, which State Farm never accepted. (It is undisputed
that State Farm never tendered the settlement funds, either
conditionally or otherwise.) Cf. Haselden-Langley Constructors, Inc.
v. D.E. Farr & Assocs., Inc., 676 P.2d 709, 711 (Colo. App. 1983) (an
attempt to accept an offer on materially different terms than the
original offer is a counteroffer, not an acceptance). Therefore, no
settlement contract resulted based on State Farm’s superseding
offer.
¶ 40 The district court appears to have recognized at least one of
the problems created by the second October 14 email. As I
understand its order, it found or concluded that State Farm’s
alternative demand in the second October 14 email for a separate
19 indemnity agreement was a “red herring” because State Farm’s
original tendered release accomplished the same thing as a separate
indemnity agreement.
¶ 41 There are two reasons why the district court’s “red herring”
analysis does not withstand scrutiny. First, it does not address the
undisputed fact that the second October 14 email presented the
Stansberrys with two disparate options, at least one of which was
plainly inconsistent with the simple, unconditional offer contained
in the first October 14 email.
¶ 42 Second, the red herring argument fails on its own terms as
indicated in the cases cited above regarding the materiality of a
demand for an indemnity agreement. See D’Agostino, 969 F. Supp.
2d at 129; Lawrence, 204 P.3d at 540; Paul R. Ponfil Tr., ¶¶ 20-26;
Collins, 2005-0238, p.10.
¶ 43 What is a real red herring in the context of this case is the
appellate standard of review, because regardless of whether this
court reviews de novo or for clear error, the result is the same: the
offer contained in State Farm’s first October 14 email terminated by
operation of law when State Farm communicated its second
20 October 14 email. As a result, there was, as a matter of law, no
offer capable of acceptance by the Stansberrys. Thus, no contract.
¶ 44 The standard of review question, upon which the majority
essentially decides this case, presents several interesting
questions.2 The first is what standard of review — de novo or clear
error — applies when a trial court holds an evidentiary hearing but
then rejects on credibility grounds the testimony presented at the
hearing and decides the case on the basis of undisputed writings.
Does that factual scenario bring into play the holding of Sumerel v.
Goodyear Tire & Rubber Co., 232 P.3d 128, 132 (Colo. App. 2009),
which held, “In contract cases, when the facts are undisputed and
the pertinent documents are before us, we are not bound by the
district court’s findings and conclusions and may resolve the issues
as a matter of law”?
2 Sometimes it is difficult to draw the line between findings of
historical facts (to which appellate courts must defer if there is virtually any record support), ultimate findings of fact, and questions of law. Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51, ¶¶ 4, 18. An appellate court does not defer to a lower court’s determination of a question of law. Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000). The characterization of whether a lower court’s action is a finding of fact or a conclusion of law (or a mixed question of law and fact) is important, and sometimes outcome determinative.
21 ¶ 45 Or does the mere fact that an evidentiary hearing was held
mean that, in all such cases, the standard of review is clear error
irrespective of whether the dispositive evidence is written and
unambiguous? These questions raise a subsidiary question: Did
the district court reject all of the testimonial evidence presented at
the hearing, as I think it did, or did it reject only some of it, as the
majority thinks?
¶ 46 While interesting, none of these questions need to be resolved
to decide this case. This is not a case in which any of the relevant
offers, counteroffers, or acceptances were oral or ambiguous. In
those circumstances, the trial court must determine what was said
by the parties and then apply the applicable law to those findings.
Those findings of fact are entitled to deference by an appellate
court. See Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc.,
2019 CO 51, ¶ 18. But here, all of the relevant offers, counteroffers
and alleged acceptances were in writing and there is nothing
ambiguous about any of them. Those written offers, counteroffers,
and acceptances have legal consequences under the law of
contracts and, in my view, the district court had no authority to
ignore or rewrite those writings. Instead, in a contract case such as
22 this, the proper function of the district court is to determine
whether, under the law of contracts, those undisputed writings
created an enforceable contract.3
¶ 47 While a fact finder has broad authority to find the disputed
facts, a fact finder cannot properly ignore a relevant (here,
dispositive) unambiguous writing in the guise of finding or
recreating the historical facts. Doing so constitutes clear error, so
even if the clear error standard of review applies, I would find clear
error occurred here. See Sentinel Colo. v. Rodriguez, 2023 COA 118,
¶ 18 (“A court’s finding of fact is clearly erroneous if there is no
3 Another portion of the district court’s analysis demonstrates that
the court departed from the proper task before it. The court stated that after the Stansberrys’ lawyer’s October 16 email “State Farm never expressed to Thompson that it was insisting the Stansberrys still execute a ‘hold harmless’ agreement,” and “[i]f Thompson had forwarded a copy of a signed release . . . it is more likely than not that State Farm would have issued a check for $100,000 per Thompson’s payment instructions.” This analysis asks and answers the wrong question. The question is not whether, irrespective of whether there was a legally enforceable contract, it was more likely than not that a settlement would have been consummated if either party took other steps, including the one suggested by the court. The only proper questions before both the district court and this court are whether under the law of contracts there existed an offer legally capable of acceptance and whether the counterparty accepted that offer without any material change. Haselden-Langley Constructors, Inc. v. D.E. Farr & Assocs., Inc., 676 P.2d 709, 711 (Colo. App. 1983).
23 support for it in the record.”) (citation omitted) (cert. granted July
22, 2024).
¶ 48 For these reasons, I would hold that no enforceable settlement
agreement came into existence. Therefore, the district court’s order
enforcing the putative settlement agreement and its resulting
judgment of dismissal with prejudice should be reversed and the
case remanded with directions to reinstate the Stansberrys’ claims.
I respectfully dissent from the majority’s contrary rulings.