USCA1 Opinion

June 24, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-2375
WAYNE SAWYER,
Plaintiff, Appellant,
v.
TOWN OF ASHLAND, NEW HAMPSHIRE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Peter S. Smith, Disabilities Rights Center, Inc., with w

________________
Ronald K. Lospennato was on brief for appellant.
____________________
David P. Slawsky with whom Russell F. Hilliard and Upton, Sand
________________
____________________
___________
& Smith were on brief for appellee.
_______
____________________
____________________

BOUDIN,
below,
his

Circuit Judge.
______________

appeals from the

claims

against the

attorneys' fees

Wayne

Sawyer,

the plaintiff

district court's determination that

Town

of

were barred by an

Ashland for

damages

oral settlement agreement

entered into at an unrecorded pretrial conference.

is difficult but turns

primarily on the facts.

that the agreement discharged

the

district court.

The issue
We conclude

Sawyer's damages claim against

Town, and thereby eliminated

attorneys' fees.

and

any basis for

Accordingly, we affirm the

an award of

judgment of the

The

present litigation

Sawyer in
conviction
diagnosed

arose out

a sexual offender treatment

for felonious
as

suffering

of efforts

program following his

sexual assault.
from

disorders, including mild mental

to place

number

Sawyer

has been

of

developmental

retardation.

In July 1990,

the state court sentenced Sawyer to serve three and a half to

fifteen years

in New Hampshire state

that he be treated

prison but recommended

in accordance with his disabilities.

In

keeping with this suggestion, the court on December 20, 1991,

deferred
Sawyer

the balance
could enroll

of
in

treatment program for

Sawyer's prison
a

newly developed

sentence so

that

community-based

developmentally disabled persons

with

sexual disorders.
After three months in the program, which was operated by
the

Lakes Region Community Services Council ("the Council"),

-2-2-

Sawyer was charged with

to

state prison.

violating his probation and returned

The state court authorized Sawyer's return

to

the treatment

were made

to place

facility
Ashland

program in

in

Sawyer

in a

Ashland, New

of

Sawyer

was left with no

open

cancelled as

Because Sawyer's

program had

treatment

Plans to

were ultimately

public protest.

previous treatment

and arrangements

new residential

Hampshire.

facility, however,

result

August 1992,

been filled in

alternative but to

slot

the
a

in his

his absence,

remain in state

prison.
On

June 25, 1993, Sawyer filed suit in federal district

court

against the

Mental

Health and

Council,

open the Ashland treatment

3601 et seq.,
_______

the Rehabilitation

September 16,

defendants

conference
proposed

on

facility deprived him

Act of 1973,
At an

29 U.S.C.

initial pretrial

1993, the district

the parties to explore settlement

pretrial

("the Division"),

Fair Housing Act, 42 U.S.C.

the Fourteenth Amendment.

conference on

of

Sawyer's complaint alleged that the

of his civil rights under the

794, and

Hampshire Division

Developmental Services

and the Town of Ashland.

failure to

the New

of the case.

September

a residential

30,

court urged
At a

counsel

placement

second
for

the

and treatment

plan for Sawyer.

Although the parties differ as to exactly what
and

understood

at

the

September

-3-3-

30

was said

conference,

the

defendants' counsel and the court came away thinking that the
case

had been settled.

On October 6,

1993, the defendants

sent Sawyer's counsel a proposed "Stipulation for

articulating

Dismissal"

the residential treatment plan discussed at the

September 30 conference and also incorporating provisions for

nondisclosure of the agreement and waiver of attorneys' fees.
Sawyer's counsel objected to the latter two provisions--which
everyone

agrees

were

conference--as well

not

as

discussed at

to certain

the

September

provisions for

30

Sawyer's

treatment program.

Accordingly, Sawyer's counsel returned to

the

"redrafted

defendants

addressed

the

eliminated

the

Sawyer's

development

in

and

for
a

attorney's

stipulation

agreement," which

implementation

nondisclosure provision,

"claim

separately

settlement

fees

and
shall

or other

problem,

provided that
be

filings

addressed
with

this

court."
In

turn,

counsel that
Sawyer's

counsel
the Council

claim

precluded by the
conference.

for

the

Council

and the other

for attorneys'

fees or

informed Sawyer's
defendants believed
other relief

oral agreement reached at the

to be

September 30

When the parties met with the district court on

October

25,

attorneys'

1993,
fees

Sawyer's
had

not

counsel

been

pointed

discussed

at

out

that

the

prior

conference, and also said that he had never intended to reach

an

oral

settlement

agreement

at

that

conference.

The

-4-4-

district court scheduled a hearing for November 15 to resolve

the fees issue.
Prior to
and the

the November

15 hearing, Sawyer,

Division agreed to a final

the Council

"Consent Order Approving

Settlement," which provided more detailed standards governing

Sawyer's treatment

program and

included $500 each

from the

Council and the Division to cover a portion of Sawyer's costs

and

attorneys' fees.

party to
forward to
his

the consent

Because the Town

order, the

determine whether

of Ashland was not a

November

15 hearing

Sawyer was entitled

claim for attorneys' fees against the Town.

went

to pursue
On November

29, 1993, the district court entered an order concluding that

the
that

case had
the

been settled at

settlement

did

not

the September
include

any

30 conference,
provision

for

attorneys'

fees, and

from seeking such

that the

an award.

plaintiff was
Sawyer now

now precluded

appeals from

this

ruling.
The district court found
counsel
September

to

a comprehensive
30

conference

attorneys' fees.

for

either later

the

parties

barred any

the case

subsequent

at the

claim

parties do sometimes

for

settle the

the issue of attorneys' fees open

agreement or

Accordingly, courts
that

resolution of

However,

merits of a case but leave

that the agreement by Sawyer's

determination by

have generally demanded

intentionally

waived

the court.

evidence either

fees

or

made

an

-5-5-

agreement that definitively

attorneys' fees.

terminated all claims

including

See, e.g., Muckleshoot Tribe v. Puget Sound

___ _____ _________________
___________

Power & Light Co., 875 F.2d

_________________

695, 698 (9th Cir. 1989); Elmore

______

v. Shuler, 787 F.2d 601, 603 (D.C. Cir. 1986).

______
In this case, both sides

appear to acknowledge that the

only issue actually discussed

was

relief on the merits.

Sawyer's

counsel

September 30

at the September 30 conference

Absent affirmative evidence that

intended

to

waive

conference, it might

addressing

at

the

conclude that

interests of their client

their own

resolve this issue because we

fees

be easy to

counsel were simply looking to the

first before

their

payment.

We

need

not

think that the attorneys' fees

claim is barred even if it was not deliberately

relinquished

on September 30.
The problem for Sawyer

arises from the district judge's

finding that the parties settled the underlying merits of the

case.

Fees

are

available

"prevailing parties,"
(1992),

and

the

section

Farrar v. Hobby,
______
_____

fact

against one party does

party . . . ."

under

"[t]hat a

1988

113 S. Ct.

plaintiff

has

not entitle him to fees

only

to

566, 572
prevailed

from another

Kentucky v. Graham, 473 U.S. 159, 168 (1985).

________
______

Here, it is undisputed that the Town of Ashland "consistently

had

refused

Sawyer's

to

do or

demands, [and]

settle the case . . . ."

not

do

anything

also refused

to satisfy

to offer

Wayne

anything to

Sawyer therefore has not yet earned

-6-6-

prevailing
retain

party status
claim for

vis-a-vis

the Town,

attorneys' fees

viable claim against

if

and can

he also
____

the Town for substantive

only

retains a

relief on the

merits.
Sawyer argues
other

that he

retains a

claim for

relief against the Town despite

claims for

damages and

the Division.
court

damages or

his settlement of his

injunctive relief against

However, after

held a conference on

the fee

LCRSC and

dispute arose,

October 25 at

the

which the parties

presented their views of what had transpired on September 30;

on the basis of this conference, the court found that "it was
clear to the court as a
parties,

that all

result of the statements made by the

substantive

resolved by the parties . . .

"[t]he

issues
."

had previously

been

The court also noted

that

determination that the parties had

settlement agreement

comes

in fact reached a

from observations

made

by

the

court during the course of three settlement conferences."

The

district judge's

issue are entitled to

findings

on this

fact-intensive

substantial deference on appeal.

See
___

Fed. R. Civ. P. 52(a) (factual findings of trial judge may be

set

aside only

becomes

even

if "clearly
more

erroneous").

formidable

where as

This presumption
here

the

court's

findings concern the content of negotiations conducted in the

presence of the district judge.

-7-7-

The district court's

and

affidavits

from

defense

defendants' understanding
the

September

court's

30

counsel,

of relief

which

that the case had

conference.

nor defense

discussion

findings are supported by

And

program for Sawyer, Sawyer's

confirm

although

establishment

the

been settled at

counsel's recollections
beyond

letters

neither
allude

of a

the

to any

treatment

own counsel acknowledged at the

November 15 hearing that "I told [defense counsel] that if we

could get a

program for

Wayne, that the

damages aspect

of

this case would not be pursued."

Sawyer's

counsel

intended to enter
30

conference.

intent

must

be

continue to

insist

into a binding agreement

But it

is hornbook

determined based

on

that they

never

at the September

law that
objective

the parties'
standards,

rather than on their subjective, unmanifested states of mind.

See, e.g., 1 Farnsworth on Contracts

_________
_______________________
We thus find no
that

3.6, at 169-70 (1990).

clear error in the district

the September

30 conference

court's finding

resulted in

that included a release of Sawyer's

a settlement

damages and other merits

claims in return for placement in a treatment program.

Sawyer argues
at

the September

reasons.
binding

that any agreement with

30 conference

First, Sawyer contends

vis-a-vis

the Town

the Town reached

is unenforceable

for three

that the agreement

because

the

consideration as part of the settlement.

is not

Town provided

no

Absent a showing of

-8-8-

any contrary
was

authority, we think that

the controlling issue

whether the agreement as a whole was supported by mutual

consideration.
agreement to
This was

Here, Sawyer
place him

bargained for and

in a residential

sufficient consideration

received an

treatment program.

to render the

settlement

agreement effective.
Second, Sawyer

asserts that the oral

agreement was not

enforceable

because the parties

did not intend

until that agreement was reduced to writing.

Farnsworth on Contracts,
_________________________

3.8, at

178-86.

to be bound

See generally 1
_____________
He provides,

however, no evidence of this beyond the subjective intentions

of his counsel as articulated in a post hoc affidavit.
have noted

above, however,

the district
the

such intentions

court's finding that the

parties at

the

September 30

As we

cannot overcome

objective behavior of

conference manifested

an

intent to be bound by the oral agreement.

Finally, Sawyer argues that the oral agreement cannot be
enforced because the parties failed to reach agreement on all
material terms--specifically, because the issue of attorneys'
fees had not yet been resolved.

Our recognition that parties

often settle the merits of a case while leaving the fee issue
for

later disposition

Sawyer's position

cuts both

that fees

ways.

were a

Even if

separate issue

case, Sawyer is still left with the district

that

the

merits

were

definitively settled.

-9-9-

we accept
in this

court's finding
As

already

explained,

that leaves

Sawyer

with no

attorneys' fees under section 1988.

Affirmed.
________

basis for

claiming

-10-10-