Tae Soo Chong v. Jong S. Chong

• Court: Court of Appeals of Virginia
• Decided: October 29, 2024
• Docket: 1151234
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Chaney, Frucci and Senior Judge Annunziata UNPUBLISHED

Argued at Fairfax, Virginia

TAE SOO CHONG, ET AL. MEMORANDUM OPINION* BY v. Record No. 1151-23-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 29, 2024 JONG S. CHONG, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner, Judge

Pierre Greene (Kimberley Ann Murphy; Hale Ball Murphy, PLC, on briefs), for appellants.

Joseph W. Stuart for appellees.

Tae Soo Chong and Suk Hee Kim appeal the circuit court’s order holding that two emails

exchanged between the parties’ counsel constituted an enforceable settlement agreement and

appointing a special master to sign a formal version of the settlement agreement, a deed of trust,

and a promissory note on behalf of Tae Soo and Kim. Tae Soo and Kim argue that the circuit

court erred by finding that the parties intended to enter the agreement and by finding that their

counsel was authorized to enter them into the agreement. They further assert that appointing a

special master violated their rights to due process under the Fifth and Fourteenth Amendments to

the U.S. Constitution. For the following reasons, we conclude that the circuit court erred in

concluding that the parties entered an enforceable settlement agreement. Accordingly, we

reverse and remand for further proceedings.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

The underlying case involves a financial dispute between four family members.

According to the amended complaint, appellee Jong S. Chong is the mother of appellee Peggy

Chong and appellant Tae Soo, and appellant Suk Hee Kim is Tae Soo’s wife. Jong allegedly

also had a third child, named Tae Son (brother to Peggy and Tae Soo), with whom she lived for

“at least ten years” at a house Tae Son owned in Ashburn, Virginia, before he died intestate in

December 2020. About one year later, Jong and Peggy filed this lawsuit claiming that Tae Soo

and Kim had taken advantage of the circumstances of Tae Son’s death to misappropriate assets

for their own benefit that rightfully belonged to Jong and Peggy.1

Jong and Peggy alleged that Tae Son had no wife or children, and Jong’s husband was

already deceased, so Jong became Tae Son’s sole heir at law. After Tae Son’s death, according

to the amended complaint, Tae Soo and Peggy took on responsibility for helping Jong manage

Tae Son’s estate, the assets of which included the Ashburn property, two bank accounts, two

cars, and various tangible property such as furniture in the Ashburn property. Tae Son also

allegedly had a life insurance policy, which named Peggy as the sole beneficiary. Among other

things, Jong and Peggy alleged that Tae Soo withdrew $100,000 from a bank account jointly

owned by Peggy and Tae Soo (which was primarily funded by the life insurance proceeds Peggy

received from Tae Son’s death) under the false pretense of using the funds to refinance the

Ashburn property’s mortgage, and then kept the funds for himself and Kim. Jong and Peggy also

alleged that Tae Soo tricked Jong into signing a deed of gift of the Ashburn property to Tae Soo

and then sold the house and kept the proceeds (a net amount of $236,104.94) for himself and

Kim.

1 Jong and Peggy named only Tae Soo as a defendant in the original complaint. They added Kim as a party defendant in the amended complaint. -2- Jong and Peggy thus asserted ten claims upon various theories of liability, including

fraud, breach of fiduciary duty, unjust enrichment, and conversion, and they sought to recover

the money misappropriated from the bank account, the proceeds from the sale of the Ashburn

house, and certain other smaller amounts they alleged Tae Soo and Kim had wrongfully taken.

Peggy sought compensatory damages of $96,500, punitive damages of $100,000, attorney fees,

and a constructive trust on real and personal property taken. Jong sought compensatory damages

of $236,104.94, punitive damages of $250,000, attorney fees, and a constructive trust on real and

personal property taken. Tae Soo and Kim demurred to the amended complaint, which the

circuit court sustained as to one of Jong’s claims and overruled as to the remaining claims.

As trial approached, the parties engaged in negotiations for a possible settlement. On

December 29, 2022, counsel for Jong and Peggy sent an email to counsel for Tae Soo and Kim,

stating, in relevant part:

Lawrence -

Here’s my clients response:

Total settlement amount of $218,000, all secured by a deed of trust, with a $75,000 payment by March 1, 2023, and the balance ($143,000) paid monthly over 15 years at 2.96% interest compounded semiannually. That would yield a monthly payment of $983.54 with the first payment due on April 1, 2023. My calculation of the amortization schedule on these terms is attached.

The note would contain no prohibition or penalty for prepayment. The deed of trust and note would include standard remedies for late payments and default. The offer is contingent on your client’s confirmation with documentation at settlement that existing debt (that is, other than this new debt) secured by your clients’ home does not exceed $200,000. The settlement agreement would be formalized and incorporated into the nonsuit Order concerning the Complaint. Mutual releases in the agreement.

Like you, I would discount my fees substantially to make this work for this family.

-3- Given the time constraints, please consider this as a best and final counter.

Thanks.

Joe Stuart

Attached to the email was a document titled “Approximate Future Payment Schedule” showing

an amortization of the proposed $143,000 balance over 180 monthly payments, as described by

Jong and Peggy’s counsel in the email.

Counsel for Tae Soo and Kim replied by email the same day, stating, in relevant part:

Joe:

The terms below are accepted by my clients, Tae Chong and SukHee [sic].

I am assuming that you will undertake to draft the appropriate documents for our review and we will review them promptly upon receipt.

Thank you for your outstanding work on behalf of your clients, and for your efforts in bringing this dispute to an end.

....

Lawrence J. McClafferty

Counsel for Jong and Peggy then prepared a formalized “Settlement Agreement,” a “Promissory

Note,” and a “Deed of Trust.” The parties’ counsel exchanged revisions of these documents by

email. On January 6, 2023, in response to an email from counsel for Jong and Peggy attaching a

version of the formalized settlement agreement, counsel for Tae Soo and Kim sent an email to

counsel for Jong and Peggy stating, “Thank you, Joe. Looks good. We will stay tuned for the

Note and Deed of Trust.” On January 19, 2023, in response to an email from counsel for Tae

Soo and Kim regarding proposed changes to the promissory note and deed of trust, counsel for

Jong and Peggy sent an email to counsel for Tae Soo and Kim stating, “Then it’s accepted. I’ve

attached final versions with these changes.” -4- On January 20, 2023, Tae Soo and Kim filed a motion for entry of a final order and set

the matter for a hearing on January 27, 2023. Jong and Peggy sent a signed copy of the

formalized settlement agreement to Tae Soo and Kim for their signatures on January 24, 2023.

Then on January 26, 2023, counsel for Tae Soo and Kim called counsel for Jong and Peggy and

informed him that Tae Soo and Kim refused to sign the settlement agreement, promissory note,

and deed of trust.

After learning of Tae Soo and Kim’s refusal, Jong and Peggy filed a motion for

enforcement of the settlement agreement, asserting the parties had reached an agreement on

December 29, 2022, when Jong and Peggy’s counsel sent the settlement offer by email and Tae

Soo and Kim’s counsel replied accepting the proposed terms. Jong and Peggy argued that the

formal written agreements were merely implementations of the agreement that was reached on

December 29, 2022, and the terms of the formal agreements were not substantively different than

those discussed in the emails. Jong and Peggy thus requested that the circuit court “enforce the

settlement agreement reached on December 29, 2022,” and appoint a special master to execute

the formalized settlement agreement, the deed of trust, and the promissory note on Tae Soo and

Kim’s behalf.

Tae Soo and Kim opposed the motion, arguing that they did not intend to enter an

enforceable agreement when they accepted the terms by email on December 29, 2022, that they

only intended to be bound upon the preparation and signing of a formal contract, and that their

counsel did not have authority to bind them to the agreement. Tae Soo and Kim urged the circuit

court to apply the principle applicable in Virginia that, “when it is shown that the parties intend

to reduce a contract to writing this circumstance creates a presumption that no final contract has

been entered into, which requires strong evidence to overcome.” Atlantic Coast Realty Co. v.

Robertson’s Ex’r, 135 Va. 247, 253-54 (1923). Tae Soo and Kim further argued that they cannot

-5- have intended to enter agreements in December 2022 which were not written until January 2023

and that the formal agreements contained additional material terms not contemplated in the

December 29, 2022 emails. Finally, Tae Soo and Kim argued that the December 29, 2022 emails

were too indefinite and uncertain to be enforceable as a valid contract.

The circuit court held a hearing on the motion, received evidence, heard argument from

the parties, and ruled for Jong and Peggy from the bench. The circuit court concluded, “I don’t

find anything in the settlement agreement that -- anything of substance anyway, at minimum, that

is not set forth in the email of December 29th, which [counsel for Tae Soo and Kim] agreed to.”

The circuit court further explained, “So I don’t think that this meets the requirement that the

Supreme Court [of Virginia] set out in Atlantic Coach [sic] Realty . . . that there is strong

evidence to show that they did not intend the previous negotiations to amount to an agreement.”

The circuit court entered an order on April 5, 2023, enforcing the settlement agreement “reached

by the parties on December 29, 2022, together with the Settlement Agreement, a Deed of Trust,

and a Promissory Note approved by Defendants’ then counsel”; appointing a special master to

sign the settlement agreement, promissory note, and deed of trust on behalf of Tae Soo and Kim;

incorporating into the final order the settlement agreement upon its execution by the special

master; and dismissing the amended complaint with prejudice.

Tae Soo and Kim moved the circuit court to reconsider the order, reiterating their

previous arguments and arguing additionally that the circuit court misapplied the presumption

against finality described in Atlantic Coast Realty Co. The circuit court denied that motion

without a hearing. Tae Soo and Kim now appeal the circuit court’s April 5, 2023 order.

ANALYSIS

Making substantially the same arguments on appeal that they made to the circuit court,

Tae Soo and Kim assign error to the circuit court’s decision concluding that an enforceable

-6- agreement existed between the parties and appointing a special master to sign the settlement

agreement, deed of trust, and promissory note. We find the issue of whether a valid contract

exists dispositive, so we do not reach the arguments relating to the authority of Tae Soo and

Kim’s counsel to enter the alleged agreement and the constitutionality of the court’s appointment

of the special master.2

“The judgment of a circuit court will be set aside only if ‘it appears from the evidence

that such judgment is plainly wrong or without evidence to support it,’” and we therefore

“review all factual findings in the light most favorable to the prevailing parties below.” Callison

v. Glick, 297 Va. 275, 287 (2019) (quoting Code § 8.01-680). “The circuit court’s application of

law to facts, however, is reviewed de novo,” id. at 288, and “[t]he question of whether [a valid]

contract exists is a pure question of law, to which we apply a de novo standard of review.”

Spectra-4, LLP v. Uniwest Com. Realty, Inc., 290 Va. 36, 42 (2015) (second alteration in

original) (quoting Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157, 161,

(2008)). Similarly, “[t]he interpretation of a contract presents a question of law subject to de

novo review.” Babcock & Wilcox Co. v. Areva NP, Inc., 292 Va. 165, 178 (2016) (quoting

School Bd. of Newport News v. Commonwealth, 279 Va. 460, 467 (2010)).

“‘The law favors compromise and settlement of disputed claims.’ But the essential

elements of a valid contract must exist to support a binding compromise settlement; there must

be a complete agreement including acceptance of an offer as well as valuable consideration.”

Snyder-Falkinham v. Stockburger, 249 Va. 376, 381 (1995) (quoting Bangor-Punta Operations,

2 See Holman v. Commonwealth, 77 Va. App. 283, 296 n.2 (2023) (“[T]he doctrine of judicial restraint requires us to ‘decide cases “on the best and narrowest grounds available.”’” (quoting Commonwealth v. White, 293 Va. 411, 419 (2017))). “The ‘best’ answer to a legal question is the one with which the least number of jurists would disagree or, in other words, the one with which the greatest number of jurists would agree.” Butcher v. Commonwealth, 298 Va. 392, 396 (2020). “The ‘narrowest’ answer to a legal question is the one affecting the least number of cases.” Id. -7- Inc. v. Atlantic Leasing, Ltd., 215 Va. 180, 183 (1974)). As with any contract, “whether there

has been a binding settlement” depends on “the parties’ intention, as objectively manifested.” Id.

Furthermore, “[t]he guiding light . . . is the intention of the parties as expressed by them

in the words they have used, and courts are bound to say that the parties intended what the

written instrument plainly declares.” Golding v. Floyd, 261 Va. 190, 192 (2001) (second

alteration in original) (emphasis added) (quoting Magann Corp. v. Electrical Works, 203 Va.

259, 264 (1962)). “Thus, if the intent of the parties can be determined from the language they

employ in their contract, parol evidence respecting their intent is inadmissible.” Id. at 192-93. If

the written instrument is “clear and unambiguous, . . . no extrinsic evidence is required, or even

allowed, to ascertain the intention of the parties as objectively manifested.” Id. at 194 (holding

that a “Settlement Agreement Memorandum” was not a binding agreement because, by its plain

language, it was “subject to execution of” a formal agreement).

In this case, the “written instrument” which Jong and Peggy asserted, and the circuit court

agreed, constituted a binding settlement agreement is made up of the two emails the parties’

counsel exchanged on December 29, 2022. The circuit court concluded, and Jong and Peggy

maintain on appeal, that the formal settlement agreement, promissory note, and deed of trust are

“merely an implementation” of the agreement the parties allegedly reached on December 29,

2022. We must decide, therefore, whether the December 29, 2022 emails were sufficient to

create a binding agreement.3

“Correspondence between parties can result in a binding contract if the letters and

telegrams, fairly construed, correctly express all of the terms to which the parties agree, even

3 Because Jong and Peggy exclusively relied on the December 29, 2022 emails as the basis for the contract in their argument to the circuit court and the circuit court based its conclusion on those emails, we do not address whether the emails the parties exchanged after December 29, 2022, were sufficient to create a contract. -8- though the parties understand that the agreement shall thereafter be expressed in a formal

writing.” Chittum v. Potter, 216 Va. 463, 467 (1975); see Golding, 261 Va. at 194 (noting that

the Supreme Court of Virginia has “found binding agreements, both oral and written, where the

parties’ intention to be bound is objectively manifested even though a subsequent formal

agreement is contemplated”). In such cases, “[t]he whole question is one of intention. If the

parties are fully agreed, there is a binding contract, notwithstanding the fact that a formal

contract is to be prepared and signed; but the parties must be fully agreed and must intend the

agreement to be binding.” Agostini v. Consolvo, 154 Va. 203, 212 (1930) (emphasis added)

(quoting Boisseau v. Fuller, 96 Va. 45, 46 (1898)). “Additionally, where parties intend to

culminate their agreement with a signed contract, there is a strong presumption that no contract

exists until a contract is formally signed and in writing.” Moorman v. Blackstock, Inc., 276 Va.

64, 76 (2008); see Atlantic Coast Realty Co., 135 Va. at 254 (noting this presumption “requires

strong evidence to overcome”).

For the parties to be fully agreed, the terms of the alleged agreement must be sufficiently

certain and complete. See Dean v. Morris, 287 Va. 531, 537 (2014) (noting that “certainty and

completeness” are “essential element[s] of a valid contract” (quoting Smith v. Farrell, 199 Va.

121, 127 (1957))). “The element of completeness denotes that the contract embraces all the

material terms; that of certainty denotes that each one of those terms is expressed in a sufficiently

exact and definite manner.” Dean, 287 Va. at 537 (quoting Smith, 199 Va. at 127-28). “It is

crucial to a determination that a contract exists . . . that the minds of the parties have met on

every material phase of the alleged agreement.” See Chittum, 216 Va. at 467 (emphasis added).

And “there must be mutual assent of the contracting parties to terms reasonably certain under the

circumstances in order to have an enforceable contract.” Allen v. Aetna Casualty & Surety Co.,

222 Va. 361, 364 (1981) (holding that where an alleged agreement to settle a case “provide[s] no

-9- reasonable basis for affording a remedy for its breach, it is too vague and indefinite to be

enforced”).

The purported agreement in this case involves three contracts in one—the settlement

agreement, the promissory note, and the deed of trust. The terms expressed in the emails show

that these contracts are interdependent, as the terms of each contemplate the application of the

terms of the others. See Mathews v. PHH Mortg. Corp., 283 Va. 723, 733 (2012) (“A deed of

trust is construed as a contract under Virginia law . . . .”); Va. Hous. Dev. Auth. v. Fox Run Ltd.

P’shp, 255 Va. 356, 365 (1998) (construing interdependent deed of trust and underlying notes

“as representing one contract”). Thus, for the parties to have been “fully agreed” on December

29, 2022, the emails must contain the necessary material terms to support a valid settlement

agreement, a valid promissory note, and a valid deed of trust. Boisseau, 96 Va. at 46; see

Moorman, 276 Va. at 75 (“[Regarding] a contract for the sale of real estate, . . . although a

legally sufficient, signed writing ‘may consist of any kind of writing, from a solemn deed down

to mere hasty notes or memorandum in books or papers,’ the writing must nonetheless contain all

the essential terms of the agreement.” (quoting Reynolds v. Dixon, 187 Va. 101, 107 (1948))).

Assuming without deciding that the emails contain the necessary material terms of an otherwise

valid settlement agreement and promissory note, we hold that the emails do not provide the

material terms of a valid deed of trust with sufficient completeness and certainty, and therefore

the agreement fails as a whole.

The material terms of a contract are those necessary to fulfill the “essential purpose of the

contract.” Mathews, 283 Va. at 732 (quoting Countryside Orthopaedics, P.C. v. Peyton, 261 Va.

142, 154 (2001)) (discussing what constitutes a “material breach” of a contract). Deeds of trust

are, at minimum, three-party contracts involving an obligor, an obligee, and a trustee who owes a

fiduciary duty to both, in which the obligor conveys real property to a trustee to be held in

- 10 - security for the payment of money or performance of an obligation owed to the obligee. See

Code § 55.1-316, -317; Crosby v. ALG Trustee, LLC, 296 Va. 561, 569-70 (2018) (discussing the

trustee’s fiduciary duty). “The essential purposes of a deed of trust are two-fold: to secure the

lender-beneficiary’s interest in the parcel it conveys and to protect the borrower from

acceleration of the debt and foreclosure on the securing property prior to the fulfillment of the

conditions precedent it imposes.” Mathews, 283 Va. at 732. In furtherance of the former

purpose, “a deed of trust permits the trustee to sell the parcel to protect the interest of the

lender-beneficiary upon the borrower’s breach by non-payment . . . .” Id. In furtherance of the

latter purpose, a trustee’s power to foreclose “does not accrue until [the deed of trust’s]

conditions precedent have been fulfilled.” Id. at 731. Thus, in order to be sufficiently certain

and complete, a deed of trust must include terms which fulfill these purposes and are

“sufficiently definite to enable a court to give [the contract] an exact meaning, and must obligate

the contracting parties to matters definitely ascertained or ascertainable.” Dean, 287 Va. at 538

(quoting Smith, 199 Va. at 128).

Code §§ 55.1-316 to -345 provide further guidance regarding the form, effect, and

procedures applicable to the execution of deeds of trust. As relevant here, Code § 55.1-316

provides a form which a valid deed of trust “may” take:

This deed, made the ________ day of ______, in the year ____, between ________ (the grantor) and ________ (the trustee), witnesseth: that the said ________ (the grantor) does (or do) grant (or grant and convey) unto the said ________ (the trustee), the following property (here describe it): In trust to secure (here describe the debts to be secured or the sureties to be indemnified and insert covenants or any other provisions the parties may agree upon). Witness the following signature (or signatures).

Code § 55.1-317(B) additionally provides, in relevant part: “A deed of trust . . . shall state the

full residence or business address of the trustee named in such deed of trust, including street

address and zip code, and such address shall be valid for purposes of all notices under the deed - 11 - of trust to the trustee.” Finally, Code § 55.1-320 provides certain “duties, rights, and

obligations” which a deed of trust “shall be construed to impose and confer upon the parties and

beneficiaries” unless otherwise provided in the deed of trust.

A deed of trust thus need not be complicated to be valid. Nonetheless, the December 29

emails do not contain all the material elements of a deed of trust. Most fundamentally, the

December 29 emails do not name a trustee, and thus do not name all the parties to the contract.

See Moorman, 276 Va. at 75 (“The essential terms to a contract for the sale of real estate include

‘the names of the parties, the terms and conditions of the contract, and a description of the

property sufficient to render it capable of identification.’” (emphasis added) (quoting Reynolds,

187 Va. at 108)).

Moreover, the December 29 emails do not establish the terms and conditions of the

contemplated deed of trust with sufficient clarity to be enforceable. The offer email states, “The

deed of trust and note would include standard remedies for late payments and default.” But it is

unclear what “standard remedies” means. As noted, Virginia Code provides certain “duties,

rights, and obligations” arising from a deed of trust, unless the deed of trust “provides

otherwise.” Code § 55.1-320. Thus, “standard remedies” could be read to incorporate the

default remedies provided by statute. E.g., Code § 55.1-320(7) (permitting trustee upon request

by beneficiary in the event of a default in payment of the debt secured by the deed of trust to

declare the debt due and payable and foreclose upon and sell the property at auction). But

“standard remedies” might also refer to standard remedies recommended to be included in deeds

of trust by legal treatises, or to remedies practitioners generally include as a matter of course in

deeds of trust, or it might be some combination of the two.

The language is thus too uncertain to support the creation of a deed of trust with

enforceable remedies. By way of example, the sample subordinate deed of trust in Virginia

- 12 - Forms provides that prior to acceleration of the debt, the lender must send the borrower a notice

of default which includes, among other things, “a date, not less than 30 days from the date the

notice is given to Borrower, by which the default must be cured.” 5B Barbara Wright Goshorn,

Virginia Forms § 16-716 (2023). Yet, the formal deed of trust the appellees submitted to the

circuit court in this case provides that the same notice must include “a date, not less than 10 days

from the date the notice is mailed to Borrowers, by which such breach must be cured.” And

Code § 55.1-320 requires no such notice at all before proceeding with foreclosure. Which of

these three options is the “standard remedy” referenced in the December 29 email?

These ambiguities relate directly to the “essential purposes of a deed of trust” to protect

the parties’ respective interests in the property. Mathews, 283 Va. at 732. Thus, there is

insufficient information contained in the December 29 emails to support the creation of a formal

deed of trust which provides a “reasonable basis for affording a remedy for its breach.” Allen,

222 Va. at 364. The agreement is therefore “too vague and indefinite to be enforced.” Id.; see

Dean, 287 Va. at 538 (“An uncertain contract is one which may, indeed, embrace all the material

terms, but one [or more] of them is expressed in so inexact, indefinite or obscure language that

the intent of the parties cannot be sufficiently ascertained to enable the court to carry it into

effect.” (quoting Smith, 199 Va. at 128)).

Finally, because it bears on the issue of whether the parties were “fully agreed and . . .

intend[ed] the agreement to be binding,” Agostini, 154 Va. at 212 (quoting Boisseau, 96 Va. at

46), we note certain substantive differences between the terms of the formal agreements and the

terms expressed in the December 29 emails. See Eascalco, Inc. v. Caulfield, 220 Va. 475, 477

(1979) (“A court cannot alter the terms of a contract and then enforce it; when specific

performance is granted, the contract must conform substantially to the contract made by the

parties.”). First, as explained above, the December 29 emails do not express the terms of the

- 13 - contemplated deed of trust with sufficient clarity to be enforceable. Thus, the mere existence of

specific remedies and conditions relating to default in the formal deed of trust is a significant

alteration from the emails. Additionally, the formal settlement agreement contains terms which

either are not mentioned in the emails, or are so much more specific than the terms of the emails

that it cannot reasonably be said that they are substantively identical to the terms of the emails.

Jong and Peggy’s counsel stated in the offer email, “Mutual releases in the agreement.” The

formal settlement agreement contains a provision in which the parties mutually release each

other from “any and all other claims . . . from the beginning of time to the date of this

agreement.” The short phrase in the email does not make it clear whether the parties intend to

mutually release each other from claims not relating to this dispute, as the formal agreement

attempts to do. The formal settlement agreement also provides that if a party defaults on the

agreement, they will be liable for attorney fees incurred by the non-defaulting party. Yet, there

is no mention of attorney fees in the December 29 emails. Finally, the offer email alludes that

the case will be disposed of by a nonsuit order, but the formal settlement agreement provides that

the case will be dismissed with prejudice.

That the parties used the December 29 emails as a starting point and negotiated together

the more specific terms of the formal agreements does not change the conclusion that they had

no enforceable agreement on December 29, 2022. Rather, it is evidence that on December 29,

the parties anticipated negotiating the remainder of the material details within the framework

they had established. But “[i]t is ‘well settled under Virginia law that agreements to negotiate at

some point in the future are unenforceable.’” Navar, Inc. v. Fed. Bus. Council, 291 Va. 338, 346

(2016) (quoting Cyberlock Consulting, Inc. v. Info. Experts, Inc., 939 F. Supp. 2d 572, 578 (E.D.

Va. 2013), aff’d, 549 F. App’x 211 (4th Cir. 2014)). Thus, even an agreement to “negotiate open

issues in good faith” will be considered an unenforceable “agreement to agree rather than a valid

- 14 - contract.” Id. at 346-47 (quoting Cyberlock, 939 F. Supp. 2d at 578). And this principle

dovetails with the presumption, “when it is shown that the parties intend to reduce a contract to

writing[,] . . . that no final contract has been entered into, which requires strong evidence to

overcome.” Atlantic Coast Realty Co., 135 Va. at 253-54. Jong and Peggy have not presented

strong enough evidence in this case to overcome that presumption. We cannot conclude that the

parties in this case were fully agreed and intended to be bound by their December 29 emails.

The circuit court therefore erred in concluding that the parties entered into an enforceable

settlement agreement on December 29, 2022.

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is reversed and remanded for

further proceedings consistent with this opinion.4

Reversed and remanded.

4 Given our holding and the nonfrivolous arguments made in this appeal, the appellees’ request for attorney fees is denied. - 15 -