UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FORETICH, ERIC A.

v.

AMER BCAST CO INC


99-7010a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Eric A. Fore- tich, D.D.S.,
M.A., (Foretich) appeals the district court's order  denying his
motion for extension of time to file a notice of  appeal. He also
challenges that court's assertion of jurisdic- tion over, and
resolution of, a subsequent motion of the  appellees (collectively
"ABC")1 requesting enforcement of a  settlement agreement. Foretich
seeks reversal of the order  denying his motion for extension of time
to file a notice of  appeal and requests that this court vacate the
district court's  order enforcing the settlement for lack of
jurisdiction or, in  the alternative, reverse the order. We conclude
that the  court below had jurisdiction to entertain the motion to en-
force the settlement agreement, which the court properly  granted. The
terms of the settlement agreement render  moot Foretich's challenge to
the order denying him an exten- sion of time to file a notice of
appeal. Accordingly, we affirm  the district court in all respects.


I.


In December 1993 Foretich brought a defamation action  against ABC for
the broadcast of a television movie that  depicted events surrounding
Foretich's court battles with his  former wife regarding the custody
of their daughter. Follow- ing innumerable discovery disputes, the
district court granted  ABC's motion for summary judgment on all
counts in an  order entered on October 22, 1997. Foretich did not file
a  timely notice of appeal. ABC, however, filed a motion seek- ing to
recover attorney's fees and certain expenses on Octo- ber 31 and
submitted a supplemental bill of costs on Novem- ber 4.


Also on October 31, settlement negotiations began anew at  the behest
of Foretich's lawyer. Eventually, by letter dated  November 17,
Foretich's counsel communicated the following:




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n 1 The appellees include American Broadcasting Companies,  Inc.,
Capital Cities/ABC, Inc. and ABC Holding Company.


This is to confirm our telephone conversation this after- noon that Dr.
Foretich accepts the "walk away" offer  made to him in your letter of
November 12, 1997, which  offer you agreed to keep open today.... In
reliance on  your acceptance [sic] of the offer, we have not filed
today  on behalf of Dr. Foretich a Notice of Appeal.


Joint Appendix (JA) 367. The "walk away" offer reflected in  the
November 12 letter demanded, inter alia, that Foretich  forego an
appeal and "execute a full, general release, from the  beginning of
time to the end of time, for any person or entity  involved in any way
with the ... broadcast ... of the  docudrama, including a covenant not
to sue." JA 359-60. In  return, ABC agreed to abandon its effort to
recover costs.


Counsel for ABC sent a document entitled "Agreement and  General
Release" to counsel for Foretich on November 21.  During the following
weeks, counsel engaged in several tele- phone conversations and
neither voiced objection to the set- tlement document as an accurate
reflection of the parties'  understanding. On December 16, however,
counsel for Fore- tich communicated his client's refusal to sign
because Fore- tich objected to executing a release encompassing future
 broadcasts of the docudrama. In the end, Foretich disputes  the
district court's finding that correspondence between coun- sel led to
a meeting of the minds. See JA 469. The next day,  Foretich filed a
motion for extension of time to file a notice of  appeal. The 30-day
period had expired weeks earlier on  November 21. The district court
denied the motion in an  order entered on January 16, 1998. Foretich
filed a notice of  appeal of that order on February 11, 1998.


ABC's motion for fees and costs remained pending on  December 24, 1997
when ABC filed a motion seeking enforce- ment of the settlement
agreement, imposition of sanctions  and expedited consideration.
Applying principles of contract  law, the district court found the
parties had entered into a  binding settlement agreement that, with
minor exception, the  Agreement and General Release embodied.2 Thus,




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n 2 The district court found overbroad the provision releasing  ABC
from liability for all actions "relating to any aspect of the 


order of July 30, 1998,3 the court granted in relevant part  ABC's
motion to enforce the settlement agreement, which  included a general
release as to future broadcasts. The court  also denied ABC's motion
for sanctions and, pursuant to the  settlement agreement, deemed the
motion for costs and fees  withdrawn. Additionally, in an order
entered January 6,  1999, the court denied Foretich's motion to alter
or amend  the judgment granting ABC's motion to enforce. On January 
22, 1999 Foretich filed a notice of appeal addressed to the  order
entered on January 6.


II.


This court reviews jurisdictional issues de novo. See Board  of
Trustees of Hotel & Restaurant Employees Local 25 v.  Madison Hotel,
Inc., 97 F.3d 1479, 1483 (D.C. Cir. 1996).  With regard to the
district court's order enforcing the settle- ment, we review factual
findings for clear error and legal  issues de novo. See generally
Serono Lab. v. Shalala, 158  F.3d 1313, 1317-18 (D.C. Cir. 1998).


A.


Before reaching the merits of the district court's order  partially
granting ABC's motion to enforce the settlement, we  must decide
whether the district court had jurisdiction to 




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n Morgan-Foretich controversy and/or its portrayal in the Docudra- ma
(including anything referenced in the litigation.)." JA 467. It 
concluded that the provision "expands the release into territory not 
discussed in the letters," id., and that Foretich had not agreed to 
that particular provision. See id.


3 Multiple motions to extend time to file a notice of appeal and  a
motion to strike one of those motions occupied the district court 
during the seven-month interim between ABC's filing its motion to 
enforce and the court's disposition.


consider it.4 As Foretich points out, the district court grant- ed
summary judgment to ABC in an order entered on Octo- ber 22, 1997,
more than two months before ABC filed the  motion at issue. Still
pending before the district court when  the subject motion was filed,
however, was ABC's motion for  attorney's fees and costs. ABC contends
the district court  necessarily had ancillary jurisdiction because
resolution of the  motion to enforce the settlement agreement was
necessary to  determine whether the pending motion for fees and costs 
should be deemed withdrawn.


No jurisdictional foundation inheres in a motion to enforce  a
settlement agreement that led to an earlier dismissal of the 
underlying action. See Kokkonen v. Guardian Life Ins. Co.,  511 U.S.
375, 381 (1994). The Supreme Court nonetheless  acknowledged in
Kokkonen that if the motion is connected to  the dismissed action, the
exercise of ancillary jurisdiction over  that motion may be proper.
The Court mentioned a dismiss- al order that expressly incorporates
the settlement agree- ment as such a jurisdictional "hook." See id.
Addressing  ancillary jurisdiction more broadly, the Court stated that
the  doctrine "recognizes federal courts' jurisdiction over some 
matters (otherwise beyond their competence) that are inci- dental to
other matters properly before them." Id. at 378.  The Court found that
a district court may exercise ancillary  jurisdiction either "to
permit disposition by a single court of 




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n 4 ABC challenges our jurisdiction over Foretich's appeal of the  July
30, 1998 order, asserting that Foretich did not designate the  order
in his notice of appeal and that his subsequent filings do not 
manifest an intent to appeal the order. Considering that Foretich 
unquestionably seeks review of the issues that order fully addressed 
and that he listed the order on his Docketing Statement as an 
appealed order, JA 591, we conclude that he satisfies the standard 
enunciated in Brookens v. White, 795 F.2d 178, 180-81 (D.C. Cir. 
1986), where this court recognized the well-settled rule that a 
mistake in designating the specific judgment or order appealed  from
should not result in loss of the appeal as long as the intent to 
appeal from a specific judgment can be fairly inferred from the 
appellant's notice (and subsequent filings) and the opposing party is 


claims that are, in varying respects and degrees, factually 
interdependent" or "to enable a court to function successfully,  that
is, to manage its proceedings, vindicate its authority, and 
effectuate its decrees." Id. at 379.


Here, the district court could not incorporate the settle- ment
agreement into its dismissal order because the agree- ment was
negotiated after the order had been entered. Nev- ertheless, properly
pending before the court when ABC's  motion to enforce was filed was
its motion for fees and costs.  See Lancaster v. Independent Sch.
Dist. No. 5, 149 F.3d 1228,  1237 (10th Cir. 1998) ("Attorney's fees
awards are collateral  matters over which the district court retains
jurisdiction.")  (citing Garcia v. Burlington Northern R.R. Co., 818
F.2d 713,  721 (10th Cir. 1987)). If enforced, the settlement
agreement  would require withdrawal of ABC's motion for fees and
costs.  See, e.g., JA 286. The motion to enforce, therefore, could 
moot the motion for fees and costs and, concordantly, any  judgment on
that motion. The motions were thus inter- related and resolution of
the motion to enforce allowed the  court to resolve the motion for
fees and costs in a manner  that "effectuate[d] its decree[ ]."
Kokkonen, 511 U.S. at 379.  Accordingly, we conclude the district
court had jurisdiction  over the motion to enforce the settlement


B.


On the merits, Foretich argues that the district court erred  in its
disposition of the motion to enforce the settlement  agreement, that
is, in finding an agreement existed. At oral  argument and in his
submissions thereafter, Foretich disput- ed neither that his counsel
had authority to enter into an  agreement nor that both parties
thought an agreement had,  via counsel's correspondence, been reached.
See Decl. of  Richard E. Jordan, Esq., October 20, 1999, p p 9, 12,
13.  Foretich does dispute that the parties in fact reached a  meeting
of the minds on certain material terms. He contends 




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n 5 We note that the order at issue simply declares that a valid 
settlement agreement existed. Our affirmance is likewise limited  and
we do not reach the closer issue of whether enforcing the  settlement
agreement with affirmative relief such as a mandatory  injunction
would have been within the district court's jurisdiction.


that their different understandings came to light when he  read the
Agreement and General Release ABC drafted after  the parties agreed to
the "walk away" offer. See id. p 14; see  also JA 413, p 4.
Specifically, Foretich asserts that he never  agreed to a release
permitting future broadcasts of the  docudrama.6


The November 17 letter from Foretich's counsel estab- lished Foretich's
acceptance of the offer made in the Novem- ber 12 letter from counsel
for ABC: "This is to confirm our  telephone conversation this
afternoon that Dr. Foretich ac- cepts the 'walk away' offer made to
him in your letter of  November 12, 1997." JA 367. The November 12
letter  provides in part that Foretich is to forego an appeal of the 
order granting ABC summary judgment and to "execute a  full, general
release, from the beginning of time to the end of  time, for any
person or entity involved in any way with the  ... broadcast,
cablecast,7 etc. of the docudrama, including a  covenant not to sue"
while ABC is to abandon its effort to  recover costs. JA 359-60.
Following the letter from Fore- tich's counsel, ABC prepared the
Agreement and General  Release which expressly included "all future
sales, licenses,  publication, distribution, exploitation, broadcast,
cablecast and  reproduction of the Docudrama and all versions and all 


General principles of contract law govern our resolution of  this
issue. See Gaines v. Continental Mortgage & Inv. Corp.,  865 F.2d 375,
378 (D.C. Cir. 1989) (quoting Village of Kakto- vik v. Watt, 689 F.2d
222, 230 (D.C. Cir. 1982)). Parties may  enter into a binding
agreement that later is memorialized in a  written instrument. See
Anchorage-Hynning & Co. v. Mor- ingiello, 697 F.2d 356, 363 (D.C. Cir.
1983). In this case, the 




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n 6 In his reply brief, Foretich argues that the trial court "should 
have taken evidence to resolve contested issues of fact." Reply  Brief
at 13. Even considering this untimely argument, Foretich  admitted at
oral argument that he did not request a hearing below.


7 The docudrama had not previously been cablecast. See JA  441. Thus
the release contemplated by the November 12 letter  necessarily
included future airings of the docudrama.


parties disagree on the extent of the release agreed upon and 
reflected in the correspondence between counsel. Although it  speaks
in the broadest temporal terms ("from the beginning  of time to the
end of time"), the November 12 letter does not  expressly include
future broadcasts in its release provision.  Thus, the meaning of the
term "full, general release" is not  unambiguous, JA 359, and we may
use parol evidence, if any  exists, to determine its meaning. See
Nofziger Communica- tions, Inc. v. Birks, 989 F.2d 1227, 1230 (D.C.
Cir. 1993)  ("[W]hen the meaning of a contract provision is facially 
uncertain, a court may resort to an examination of extrinsic 
evidence, such as statements, course of conduct, and contem- poraneous
correspondence, aimed at discerning the intent of  the parties.")
(quoting Farmland Indus., Inc. v. Grain Bd. of  Iraq, 904 F.2d 732,
736 (D.C. Cir. 1990)). The affidavit of  ABC's counsel, which was
before the district court, manifests  that the parties had a lengthy
history of settlement negotia- tions and proposals, all of which
contemplated a release  encompassing future broadcasts of the
docudrama.8 See JA  334-42. In light of ABC's unwavering insistence
upon such a  release over the course of settlement discussions,
Foretich's  reading of the broad language ABC's counsel used in the 
November 12 letter, so as not to include future broadcasts, is  not
reasonable. The district court did not err in granting (in  relevant


C.


The parties' settlement agreement dictates that Foretich  "forgo any
appeal of the October 16, 1997 Order [entered  October 22, 1997]
granting summary judgment" to ABC in 




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n 8 In opposition to ABC's motion below, Foretich relied on his 
assertion that he "certainly would never agree to such terms as to 
permit future broadcasts." JA 413. The record, however, belies  his
assertion. Nine months earlier Foretich had included such  terms in
his counter-offer to ABC's offer that he had rejected solely  on
monetary grounds. Compare JA 351 (ABC settlement offer of  February 3,
1997), with JA 353 (Foretich counter-offer of February  5, 1997).


this action. JA 455. Our conclusion that the district court  properly
enforced the agreement therefore renders moot  Foretich's challenge to
the district court's order denying his  motion to extend time to file
a notice of appeal. See Douglas  v. Donovan, 704 F.2d 1276, 1278-79
(D.C. Cir. 1983).


For the foregoing reasons, the district court's order of  January 16,
1998 denying Foretich's motion to extend time to  file a notice of
appeal is vacated as moot, see United States v.  Munsingwear, 340 U.S.
36 (1950), and the district court's July  30, 1998 order granting
ABC's motion to enforce the settle- ment agreement is affirmed.9


So ordered.




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n 9 Both parties have filed motions since oral argument: ABC  moved to
strike Foretich's letter and supporting affidavit filed  pursuant to
Rules 10(e) and 28(j) and Foretich filed a motion to  strike ABC's
Reply Memorandum (filed on December 1, 1999). We  deny both motions.