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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-CV-1101

                           DAVID BROOKS, APPELLANT,

                                         v.

                      MICHAEL ROSEBAR, ET AL., APPELLEES.

                         Appeal from the Superior Court
                          of the District of Columbia
                               (2014-CAB-8071)

                       (Hon. Maurice A. Ross, Trial Judge)

(Submitted September 19, 2017                            Decided June 27, 2019)


      David Brooks, pro se, was on the brief.

      Wendell Robinson was on the brief for appellees.

      Before GLICKMAN, BECKWITH, and EASTERLY, Associate Judges.


      GLICKMAN, Associate Judge:        Appellant David Brooks sued appellees

Michael Rosebar and Erin Rosebar for defamation in 2014 based on reviews they

allegedly wrote online about his security camera business. The trial court entered a

default against Ms. Rosebar as a sanction for violating court orders in the

discovery process, and the case against Mr. Rosebar proceeded.            During a
                                         2

September 2016 court hearing, Mr. Brooks and Mr. Rosebar’s counsel orally

agreed to settle the case, but Mr. Brooks, proceeding pro se, made conflicting

statements about whether he intended for the settlement to cover his claims against

both Mr. and Ms. Rosebar. In a subsequent letter to the judge, Mr. Brooks alleged

that he clarified that he had never intended to settle his claim against Ms. Rosebar,

against whom he (mistakenly) believed he had obtained a default judgment. The

court found, however, that Mr. Brooks had agreed to settle his claims against both

of the Rosebars and dismissed the case with prejudice. In this appeal, Mr. Brooks

asserts that the court violated his due process rights in so dismissing his case, in

part because there was no “meeting of the minds” between the parties as to

material terms of the proposed settlement. We agree that, on the record before us,

there is insufficient evidence of a meeting of the minds. We therefore vacate the

dismissal and remand for further proceedings.



                                          I.



      The case before us began on December 18, 2014, when Mr. Brooks filed a

defamation complaint against Michael and Erin Rosebar.1 However, to understand


      1
        Initially, Mr. Brooks also sued a third defendant, Ebonee Price; Ms. Price
has been dismissed as a defendant and any claims against her are not relevant here.
                                          3

the issues in the case, we must go back further—to 2007. That year, Mr. Brooks

loaned the Rosebars $30,000, secured with a promissory note and a rental stream

as collateral. The Rosebars never repaid the loan, and Mr. Brooks eventually won

a judgment in Superior Court entitling him to the $30,000 plus interest.2 Mr.

Brooks spent years attempting unsuccessfully to collect on the judgment, during

which time Mr. Rosebar filed numerous civil complaints against him, also

unsuccessfully. On December 3, 2013, the court ordered that the civil clerk no

longer accept claims by Mr. Rosebar against Mr. Brooks without leave of the court

because those claims appeared to be “an attempt to use judicial process to bar Mr.

Brooks from recovering a debt to which this Court has already determined that he

is legally entitled.”



       Later that December, negative reviews of Mr. Brooks’s security camera

business, which had been operational for eight years, were posted online. These

reviews alleged that Mr. Brooks “has stolen money from my family[,]” “does not

hold . . . proper [business] license[s,]” is “using this legitimate business as a front

for illegal, commercial, and personal loan sharking and predatory lending[,]” “is a

criminal” and has been “taking pictures off the internet social media websites of

       2
        See Brooks v. Michael Rosebar et al., 2011 CA 002525B (D.C. Super. Ct.
May 5, 2011).
                                           4

your children.” Mr. Brooks claims that after the reviews were posted, he received

no new referrals from the Internet and his business closed within one year. In

December of 2014, Mr. Brooks, believing that the Rosebars had posted the

negative reviews, sued the Rosebars for defamation, seeking both injunctive relief

and damages. He also requested as relief that the court “declar[e] the [r]eviews

false and defamatory . . . .”



      In connection with this case, Mr. Brooks attempted to depose Ms. Rosebar

multiple times, but she either did not show up to or refused to answer questions at

the scheduled depositions, notwithstanding court orders to comply. As a result, the

court entered a default against Ms. Rosebar on May 19, 2016. Mr. Brooks did not

move to have a default judgment entered against Ms. Rosebar, and no further

actions were pursued as to that default.



      On September 2, 2016, Mr. Brooks and the attorney Wendell Robinson, who

had previously represented both Rosebars,3 appeared in court for a motions date



      3
           In his appeal, Mr. Brooks presents letters from Mr. Robinson to the
Rosebars indicating that he was withdrawing from the case as their attorney on
May 12, 2016. However, Mr. Robinson continued to appear in court and write
motions on behalf of the Rosebars, and it is not clear from the record what the
status of his representation was after that time.
                                          5

that the court had set sua sponte. Neither of the Rosebars appeared. When the

court inquired as to whom Mr. Robinson represented, he stated, “I’m representing

only Mr. Rosebar because you’ve already entered a judgment, a default against his

wife.” In reality, no judgment had been entered against Ms. Rosebar. The court,

however, did not clarify the status of the case against Ms. Rosebar.



      After the parties and the court addressed two unsuccessful motions by Mr.

Brooks, the court asked, “Mr. Brooks, you already have sixteen judgments against

Mr. Rosebar?” and Mr. Brooks responded, “[y]es. I’ve, I offered to settle for $800.

They said no.” The court asked, “[i]f you walk away and agree not to sue him for

five years, wouldn’t he and his wife agree not to sue you for five years?” Mr.

Robinson responded, “I certainly would recommend it.”



      Mr. Robinson then stated that he “would have given 800 bucks to get it over

with.” Mr. Brooks accepted the offer, saying, “[f]ine, fine. . . . Fine, I accept.”

Mr. Robinson said, “I’ll give him a check. I’ll write him a check.” At that point,

the court told the parties to “make sure you guys get it in writing.”



      We quote the exchange that followed in detail because it provides important

context for assessing the question of whether the parties entered into a valid,

enforceable settlement agreement:
                                        6

            MR. ROBINSON: Well, wait a minute, can we put it on
            the record right now, Your Honor?

            THE COURT: Okay, what’s the offer?

            MR. BROOKS: $800.

            MR. ROBINSON: I will write a check for you for $800 .
            . . and that will dismiss this case against both Rosebars.
            Is that correct?

            MR. BROOKS: Yes.

            MR. ROBINSON: Thank you. And, and that means,
            Your Honor, that your judgment - -

            THE COURT: Okay, next - -

            MR. ROBINSON: - - will be set aside?

            MR. BROOKS:         No. It would dismiss the matters in
            dispute now.

            THE COURT:        Well, it’s only a default.    It’s not a
            judgment.

            MR. ROBINSON: I understand.

            THE COURT: It hasn’t - - the judgment.

            MR. ROBINSON: Okay.

            THE COURT: Okay, 10 o’clock next Friday I want you
            both to be here to make sure it was done and the case is
            dismissed.


The court then told Mr. Robinson that he should bring a cashier’s check to the next

hearing and concluded the proceeding.
                                          7

      Prior to the next hearing, Mr. Brooks sent a letter ex parte to the court. The

letter was never entered into the record. Nonetheless, the court referenced the

letter at the next hearing. The court stated that Mr. Brooks’s letter admitted that he

had initially agreed to settle the case against Ms. Rosebar as well as Mr. Rosebar

and that he had “made a mistake.”4 The court told Mr. Brooks, “you have to live

with your mistake . . . [because] ignorance of the law is no excuse to repudiate

your agreement.”



      The court also discussed the previous hearing, saying, “Mr. Brooks, we have

the record. You said, I will accept; and Mr. Robinson said, we’ll write the check,

dismiss this case against both Rosebars, yes . . . and you agreed to that . . . that

was our agreement, that everything would go away.” Mr. Brooks asked, “[i]sn’t

the case against [Ms. Rosebar] over though?” The court responded:


             No. You got a default; so, that means that she couldn’t
             put on any evidence and you still have to get a judgment.

      4
           Because the letter is not in evidence, we do not rely on its purported
contents. We note, however, that Mr. Brooks denies that the letter admitted that he
had initially agreed to settle the claims against both Rosebars but then thought
better of it. Rather, he claims that the letter explained that when he initially agreed
that the settlement would dismiss all claims against both Rosebars, he thought that
the claim against Ms. Rosebar had already been resolved through a default. He
alleges that the letter stated that if he “incorrectly implied that [he] was willing to
forfeit the default judgment in exchange for $800 . . . [he] misspoke.”
                                           8

               You would still have to have like a, a proof hearing. . . .
               [Y]our agreement was, on the record, against both of
               them, and, and I don’t understand what you think you
               achieve by proceeding . . . .


        Mr. Brooks continued to argue that he had never intended to settle the case

against Ms. Rosebar. He told the court, “I didn’t understand what you . . . were

talking about” at the September 2 hearing. But the court found that Mr. Brooks

had already “agreed to” settling his claims against both Rosebars at the previous

hearing.      The court announced that it was “enforc[ing] the agreement” and

dismissing the case with prejudice. Mr. Brooks refused to accept the cashier’s

check proffered by Mr. Robinson because it “d[id] not represent what [he]

believe[d] to be the agreement.” Mr. Brooks added that it was reasonable “for a

nonattorney not to know the difference between a default entry and a default

judgment entry” and, therefore, to have been confused about which claims were

still live.



        Notwithstanding Mr. Brooks’s rejection of the settlement check, the court

maintained that “the case [wa]s still dismissed because [Mr. Brooks was] not

complying with the settlement agreement.” The court told Mr. Brooks, “to say

you’re a nonattorney is a misnomer because you’ve spent more time in court in the

last five years than most [District of Columbia] Bar[red] attorneys, and certainly
                                            9

any of them at the big downtown law firms. So, that’s it.” The court dismissed the

case that day without issuing an opinion. Mr. Brooks moved to alter the judgment

but the court denied the motion “because [Mr. Brooks] entered into an oral

settlement agreement in open [c]ourt. Several days later, he had buyer’s remorse.

. . . Accordingly, once [Mr. Robinson] tendered the settlement check, the [c]ourt

dismissed the case as settled, and so it is.”



                                           II.



      The outcome of this appeal rests on whether the trial court properly found

that the parties had entered into a valid, enforceable settlement agreement. We

review this question de novo.5 “As a general rule, the validity of a settlement

agreement is determined according to general principles of contract law.”6 “For

there to be an enforceable contract, there must be mutual assent of each party to all

the essential terms of the contract.”7 “This mutuality of assent is often referred to



      5
          Strauss v. NewMarket Global Consulting Grp., 5 A.3d 1027, 1032 (D.C.
2010).
      6
        Boks v. Charles E. Smith Mgmt., Inc., 453 A.2D 113, 117 (D.C. 1982); see
Dyer v. Bilaal, 983 A.2d 349, 354 (D.C. 2009).
      7
          Malone v. Saxony Coop. Apartments, Inc., 763 A.2d 725, 729 (D.C. 2000).
                                          10

as a ‘meeting of the minds.’”8 To assess whether there was such a “meeting of the

minds,” we consider whether the parties’ objective acts manifested agreement as to

each material aspect of the settlement agreement.9 If the parties “fail[] to agree on

or even discuss an essential term” of a purported settlement, that failure may show

that the parties did not mutually assent to the creation of a settlement.10 Further,

“[a] contract’s material terms . . . must be ‘sufficiently definite’ so that each party

can be ‘reasonably certain’ about what it is promising to do or how it is to

perform.”11



      The court cannot enforce a contract, including a settlement agreement,

unless it can determine what the agreement is. If there is a misunderstanding

between the parties that goes to the very essence of the purported contract, then




      8
           Id.
      9
        Hood v. District of Columbia, 211 F. Supp. 2d 176, 180 (D.D.C. 2002)
(applying D.C. contract law); Simon v. Circle Assocs., Inc., 753 A.2d 1006, 1012
(D.C. 2000).
      10
         Malone, 763 A.2d at 729 (quotations omitted) (quoting Owen v. Owen,
427 A.2d 933, 937 (D.C. 1981)).
      11
         Dyer, 983 A.2d at 356 (quoting Rosenthal v. Nat’l Produce Co., 573 A.2d
365, 370 (D.C. 1990)).
                                         11

there is no contract to enforce.12 Here, at the time the court dismissed the case,

there was a dispute between the parties regarding a fundamental term of the

purported settlement agreement: whether the execution of the agreement would

dismiss the case against only Mr. Rosebar or against both Rosebars.



      This dispute is evidenced in the transcript of the hearing, and Mr. Brooks

asserts that it was also evidenced in the text of his letter to the judge. Because the

letter was ex parte, was never entered into evidence, and has not been added to the

record on appeal, we cannot consider its alleged contents. Given Mr. Brooks’s

disagreement with the trial court’s characterization of the letter, however, we also

cannot rely upon the trial court’s findings regarding the letter because there is no

way to resolve the discrepancies without the full letter before us.        Thus, the



      12
         As the RESTATEMENT (SECOND) OF CONTRACTS § 20(1) (AM. LAW INST.
1981) puts it:

             There is no manifestation of mutual assent to an
             exchange if the parties attach materially different
             meanings to their manifestations and (a) neither party
             knows or has reason to know the meaning attached by the
             other; or (b) each party knows or has reason to know the
             meaning attached by the other.

See also Jack Baker, Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1239 (D.C.
1995) (“Where the parties fail to agree to all material terms, no contract is formed,
even if the parties intended to be bound by their oral agreement . . . .”).
                                         12

transcripts of the hearings are the only evidence we may consider in determining

whether the trial court properly found that the parties had entered into an

enforceable settlement agreement regarding Mr. Brooks’s claim against Ms.

Rosebar.



      The transcripts not only record the purported settlement, but also provide

important context for the settlement discussion. At the outset of the hearing on

September 2, 2016, Mr. Robinson told the court that a judgment had been entered

against Ms. Rosebar, and so he was only representing Mr. Rosebar. Thus, going

into the settlement discussion, it appeared that the only case that Mr. Robinson had

the ability to negotiate was the claim against Mr. Rosebar. Immediately before

negotiations began, the court framed the topic of a potential settlement as an option

for resolving Mr. Brooks’s claim against Mr. Rosebar. The court inquired, “Mr.

Brooks, you already have sixteen judgments against Mr. Rosebar?” and Mr.

Brooks responded, “Yes. I’ve . . . offered to settle for $800.” The court then

asked, “[i]f you . . . agree not to sue him for five years, wouldn’t he and his wife

agree not to sue you for five years?”



      Mr. Robinson then said he would agree to settling for $800 and Mr. Brooks

accepted. Mr. Brooks briefly agreed with Mr. Robinson’s assertion that the case
                                           13

would be dismissed against both Rosebars—but then disagreed that the judgment

(actually a default) against Ms. Rosebar would be set aside, noting that he intended

for the settlement to apply only to “the matters in dispute now” (i.e., the claim

against Mr. Rosebar). The court relied on Mr. Brooks’s initial “yes” answer to Mr.

Robinson’s question as to whether the case against both Rosebars would be

dismissed in finding that the parties had entered into a valid settlement agreement.



      On the record before us, there is insufficient evidence to establish that the

parties had the requisite meeting of the minds to create a valid, enforceable

settlement agreement. Although the parties may have agreed that the claim against

Mr. Rosebar should be dismissed in exchange for $800, it appears that “they never

reached an accord regarding another material part of the agreement”13—whether

that same payment would also dispose of the claim against Ms. Rosebar. Mr.

Brooks’s statements in both hearings evinced confusion as to the status of his claim

against Ms. Rosebar. His initial “yes” to the question of whether the settlement

would dismiss the claims against both Rosebars must be viewed in the context of

an ongoing settlement negotiation. Because the “yes” was quickly followed by a

“no” and accompanied by a later discussion indicating that the “yes” was based on


      13
           Hood, 211 F. Supp. 2d at 178.
                                          14

a misunderstanding, there is a serious question as to whether the “yes” should hold

any weight, let alone serve as the basis for a dismissal.14



      We pause to note that, given Mr. Brooks’s evident confusion and his

position as a pro se litigant, the court should have “ma[d]e reasonable

accommodations” to help Mr. Brooks “understand the proceedings,”15 particularly

the status of his claim against Ms. Rosebar, and should have given Mr. Brooks an

opportunity to be heard in court when he continued to object to the imposition of a

settlement agreement. Even in the absence of express confusion, courts should be

wary of enforcing settlement agreements orally formed between a pro se litigant

and an attorney, in which the pro se litigant had no opportunity to review the

settlement agreement or consult with his or her own attorney before it was

finalized.




      14
          See id. at 180 (holding that there was no “manifestation of assent” to
include a provision on a specific issue in a purported settlement agreement where
the defendants had originally stated that they did not “anticipate[]” problems with
including that provision, but later informed the opposing party that they “had
issues with [the proposed provision]” and argued that they “did not consider [the
provision] to be part of the settlement”).
      15
           D.C. Code of Judicial Conduct R. 2.6, cmt. 1A.
                                        15

      On the record of the settlement discussion before us, there is insufficient

evidence indicating that the parties had achieved a meeting of the minds sufficient

to create a valid, enforceable settlement agreement as to the claim against Ms.

Rosebar. The trial court’s dismissal of Mr. Brooks’s claims, therefore, cannot

stand. We reverse and remand for proceedings consistent with this opinion.



                                             So ordered.
