                                                              F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                                    PUBLISH
                                                              JUL 21 2004
                UNITED STATES COURT OF APPEALS
                                                            PATRICK FISHER
                                                                   Clerk
                             TENTH CIRCUIT



MICHAEL SHOELS and VONDA
SHOELS, as parents of decedent
ISAIAH SHOELS,

           Plaintiffs-Appellants,
      v.                                      No. 03-1295


THOMAS KLEBOLD, SUSAN
KLEBOLD, WAYNE HARRIS, and
KATHERINE HARRIS,

           Defendants-Appellees,

and

JEFFERSON COUNTY SHERIFF
JOHN STONE, individually and in his
official capacity, FORMER
JEFFERSON COUNTY SHERIFF
RONALD BECKHAM, individually
and in his official capacity,
JEFFERSON COUNTY SHERIFF’S
DEPARTMENT, NEIL GARDNER,
individually, JOHN HICKS,
individually, MARK M. MILLER,
individually, T. WILLIAMS,
individually, MIKE GUERRA,
individually, PHILIP LEBEDA,
individually, JOHN or JANE DOES 2
THROUGH 10 (all deputies in the
Jefferson County Sheriff’s
Department), individually,
JEFFERSON COUNTY SCHOOL
 DISTRICT R-1, FRANK
 DeANGELIS, individually and in his
 official capacity, HOWARD
 CORNELL, individually and in his
 official capacity, PETER HORVATH,
 individually, WILLIAM BUTTS,
 individually, GARRETT TALOCCO,
 individually, JUDY KELLY,
 individually, TOM TONELLI,
 individually, TOM JOHNSON,
 individually, JOHN or JANE DOES 11
 THROUGH 30, individually, JAMES
 ROYCE WASHINGTON, RONALD
 F. HARTMAN, J.D. TANNER, doing
 business as Tanner Gun Show,
 PHILLIP DURAN, MARK MANES,
 and ROBYN ANDERSON,

             Defendants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                      (D.C. No. 00-B-1614)


Geoffrey Nels Fieger (Victor S. Valenti with him on the briefs), Fieger, Fieger,
Kenney & Johnson, P.C., Southfield, Michigan, for Plaintiffs-Appellants.

C. Michael Montogomery (Steven G. Greenlee with him on the brief),
Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., Denver, Colorado, for
Defendants-Appellees Wayne Harris and Katherine Harris.

Frank D. Patterson (Gregg E. Kay and Kerri J. Atencio with him on the brief),
Patterson, Nuss & Seymour, P.C., Englewood, Colorado, for Defendants-
Appellees Thomas Klebold and Susan Klebold.


Before EBEL, ANDERSON, and McCONNELL , Circuit Judges.

                                        -2-
McCONNELL , Circuit Judge.



       Five years after the tragedy at Columbine High School, we are called to

determine whether the district court rightly put to rest a lawsuit between Michael

and Vonda Shoels, whose son Isaiah was killed at Columbine, and the parents of

the two shooters. Over strenuous objection, the district court found that the

Shoels, through counsel, had entered a binding agreement to settle their claims in

April of 2001. Because the Shoels have provided us with no reason to think that

the district court’s factual findings were clearly erroneous, we affirm the order of

the district court.

                                  BACKGROUND

       In the year 2000, Michael and Vonda Shoels sued a number of defendants

for failing to prevent or facilitating the killing of their son. Two groups of

defendants are relevant to this appeal: first, the Harrises and Klebolds, parents of

the shooters, and second, three associates of the shooters named Mark Manes,

Phillip Duran, and Robyn Anderson, who were later added to the lawsuit

(collectively referred to as the “Manes group”). The Shoels’ primary legal

counsel was Geoffery Fieger, a Michigan attorney who retained the exclusive

right to communicate with the Shoels and, for the most part, was the only one

authorized to negotiate on their behalf. Mr. Fieger worked with Jack Beam &

                                         -3-
Associates as local counsel, and especially with Douglas Raymond, an associate

at that firm. In the summer of 2000, Mr. Fieger specifically authorized local

counsel to offer to settle with the Harrises and Klebolds if they would pay the

policy limits of their homeowner’s insurance to the Shoels and one other family.

      Reluctant to settle with the families of two victims without simultaneously

resolving the potential claims of all the other victims and their families, the

Klebolds suggested that they might want to involve other potential plaintiffs in

the process. Mr. Beam urged them not to do so, and warned in a letter that their

offer was “the only attempt which will be made by these families . . . to settle

within your clients’ policy limits,” and that “settlement with Mr. Fieger’s clients

will substantially reduce the Klebolds’ personal exposure by not facing a trial

with a lawyer with Mr. Fieger’s elan.” App. 192-93.

      In the following months, a growing number of potential claimants became

involved in trying to work out a global settlement. One of the attorneys, Stephen

Wahlberg, emerged as the primary spokesman for these plaintiffs. While he was

not authorized to act on behalf of any other attorneys’ clients, he was the

intermediary who would relay communications back and forth between the

various defendants and the various plaintiffs. In September of 2000, he

demanded that the Klebolds, Harrises, and Mark Manes pay their policy limits in

full (an aggregate amount of roughly $2.4 million) to a group of thirteen plaintiffs


                                          -4-
in return for releasing their claims. Although formally included in this group, the

Shoels remained tentative about actually accepting a settlement until they knew

more definitely the amount they could expect to receive.

      In November of 2000, the Klebolds, the Harrises, and Mark Manes made a

counteroffer. They pointed out that there were still twenty-four potential

claimants outside of Mr. Wahlberg’s group, whose claims would not be resolved

by the proposed settlement. Six of those claimants, represented by Jim Rouse,

had refused to join Mr. Wahlberg’s coalition despite substantial efforts to include

them. In their opinion, any settlement that allowed the Harrises and Klebolds to

resolve the claims against them using only insurance proceeds – and thereby to

escape “scot-free” with respect to their personal assets – was unacceptable. They

wanted the Harrises and Klebolds to pay personally for the victims’ losses, at

least to some extent, and apparently also demanded a chance to confront the

Harrises and Klebolds face to face. The other eighteen had not been represented

by counsel up to that point, and it was not known whether they were interested in

pursuing their potential legal claims. The defendants acknowledged that it was

unlikely that Mr. Rouse’s group would settle, but offered to settle with the

remaining thirty-one claimants for $1.6 million, assuming that the Wahlberg

group could get the other eighteen to agree.




                                         -5-
      To muster the required consensus, Mr. Wahlberg’s group enlisted the help

of an organization called the Judicial Arbiter Group, an association of retired

judges who provide alternative dispute resolution services. The group agreed to

help contact the remaining victims and/or their families; one of its members,

Judge Jim Carrigan, agreed to help the various plaintiffs divide the settlement

proceeds by serving as an arbiter who would determine the relative value of each

claim, based on the claimant’s damages and likelihood of success. Eventually,

all but four of the eighteen families agreed to join in the Wahlberg settlement

negotiations, and the remaining four seemed unlikely to sue at all. In March

2001, arbitration agreements were sent out to each of the twenty-seven

participating families. Because Mr. Raymond, the Shoels’ local counsel, had not

received the Shoels’ copy in early April, Mr. Wahlberg sent a second copy of the

arbitration agreement on April 13, stating that everyone else had signed and

requesting the Shoels’ signature.

      Meanwhile, the parties continued to negotiate which plaintiffs would settle

with each group of defendants, how much of their insurance proceeds each group

of defendants would pay to settle the plaintiffs’ claims, and how much they would

be allowed to set aside to defend against any other claims not covered by the

settlement. On March 14, Mr. Wahlberg faxed to the Shoels’ counsel a letter

from Mr. Rouse confirming that his clients would not settle with the Klebolds and


                                         -6-
Harrises. Then, on April 9, Mr. Wahlberg advised the Shoels’ counsel that Mr.

Rouse thought his clients would participate in arbitration of their claims against

Defendants Manes and Duran. Mr. Wahlberg also speculated that some of Mr.

Rouse’s clients might have second thoughts about the Klebolds and Harrises as

well.

        A settlement conference was held on April 10, 2001, the results of which

were sent by fax to the parties (including Jack Beam, local counsel for the Shoels)

in a letter dated April 16. That letter made it clear that the Rouse plaintiffs were

not participating in the settlement with the Klebolds and Harrises, but suggested

that they would participate in the other settlements. In the Klebold/Harris

negotiations, the parties ultimately agreed that instead of negotiating the amount

to be reserved for the Rouse group and other nonparticipating claimants, they

would let the arbiter determine it. According to the final proposal set forth in the

letter, the Harrises and Klebolds would put 98% of their insurance policy limits

($1,568,000) into escrow, leaving the other 2% to cover possible zone-of-danger

claims. Then, the arbiter would determine what share of the escrowed funds each

potential claimant (including the nonsettling claimants) should receive. The

amounts attributable to nonsettling plaintiffs would be held in reserve to cover

any successful claims, and any unused portion of those funds would be distributed

to the settling plaintiffs after the statute of limitations expired.


                                           -7-
      The proposed settlements with Defendants Manes, Anderson, and Duran

had a similar structure, with one exception: those defendants refused to pay their

insurance proceeds unless everyone,   1
                                          including the Rouse group, agreed to release

their claims. Furthermore, Defendants Manes and Duran were likely judgement-

proof, and Anderson was threatening to file for bankruptcy if a unanimous

settlement was not reached; this made proceeding to trial considerably less

attractive. According to the April 16 letter, Mr. Manes had agreed to deposit

$720,000 of insurance proceeds immediately and hold the remaining $80,000 in

reserve until the statute of limitations ran. Mr. Duran had “preliminarily” agreed

to deposit $250,000 of his insurance money so long as everyone participated, and

Ms. Anderson had $300,000 of insurance proceeds available for settlement,

though her settlement proposal was not yet finalized.

      By April 18, the six families represented by Jim Rouse had definitely

agreed to settle with the Manes group. This left only the Shoels who had not

committed to settle with those defendants. Mr. Wahlberg called Mr. Raymond,

explained that “everyone else was on board,” including the Rouse group, and said

that it was time for the Shoels to make a choice. In Mr. Wahlberg’s recollection,

it was clear that he was speaking about the negotiations with Manes, Anderson,



      1
       This apparently did not include the four potential claimants who had
refused to participate in any settlement negotiations whatsoever.

                                            -8-
and Duran. Two days after the April 18 conversation, however, Mr. Raymond

claimed that Mr. Wahlberg falsely led him to believe that the Rouse group was

settling with the Harrises and Klebolds as well. In any event, Mr. Raymond said

that he would have to speak with Mr. Fieger and his clients. They were not able

to reach Mr. Fieger that day, but the next morning (April 19) Mr. Wahlberg had

another conversation with Mr. Raymond and someone at Mr. Fieger’s office,

again stressing that the Shoels needed to decide what they were going to do and

give him something in writing. Later that same morning, Mr. Fieger’s office sent

a letter to Mr. Wahlberg, apparently signed by Mr. Fieger,   2
                                                                 which read as follows:

             This letter shall serve to confirm that Mr. and Mrs.
             Shoels have approved settlement with Defendants
             Klebold, Harris, Manes, Anderson, and Duran.

App. 153. Mr. Wahlberg immediately faxed that letter on to counsel for the

Klebolds and Harrises, together with a general acceptance letter on behalf of all

the claimants.



      2
        Mr. Fieger testified at the hearing that it was actually a secretary who
drafted, signed, and sent the letter at his instruction, and that he had never meant
to do more than express the Shoels’ continued willingness to be part of the
negotiations without committing to be bound by the arbitration. As far as we can
tell from the record, he did not come forward with this story until more than a
year after the April 19 letter was sent, even though he disputed the existence of a
settlement agreement almost immediately. Furthermore, on cross-examination,
Mr. Fieger expressed some uncertainty about whether he had signed the letter.
The district court found Mr. Fieger’s claim that the letter was “misworded” to be
unbelievable, Op. 9, and we will not second-guess its credibility determinations.

                                           -9-
      Within twenty-four hours, this apparently successful conclusion to the

settlement negotiations began to unravel. When the Shoels’ attorneys realized

that the Rouse group was not settling with the Klebolds and Harrises, they

immediately repudiated the agreement. Mr. Raymond sent a letter saying that

they were “shocked” that the Rouse group was not settling with the Klebolds and

Harrises, which he considered “contrary to the representation that ‘everybody is

on board except the Shoels.’” He redescribed Mr. Fieger’s letter as saying that the

Shoels had “tentatively approved settlement,” and insisted that the Shoels would

not settle until they got “the full deal in writing.” App. 202.

      That same day, Mr. Wahlberg wrote back, expressing dismay that Mr.

Raymond was “shocked” and reviewing the terms of the settlement. App. 582.

Mr. Raymond responded, saying, “I want to make it clear to you that we were not

shocked that there was a settlement. We were shocked that there was a settlement

that did not include Rouse’s group as to Klebold and Harris.” App. 180. Over

the next several days, Mr. Fieger requested more information about the precise

amount that the Shoels could expect to receive. Mr. Wahlberg explained the

agreed-on process and that until the arbiter had ruled, it was impossible to put a

precise value on the Shoels’ claim under the settlement. However, he eventually

estimated that the Shoels’ claim might be valued at somewhere between $28,000

and $84,000. Mr. Fieger responded that his clients would “    never settle a claim


                                         -10-
with the Harris[es] and Klebolds wherein they stand to receive $28,000-84,000.”

App. 215 (emphasis in original).   3
                                       At one point in the correspondence, Mr.

Wahlberg wrote that the Shoels would not be bound by the April 19 letter because

they had not yet signed any agreements. However, after further discussions with

counsel for the Harrises (who were less forgiving), he wrote back, saying that he

had been mistaken and that the Shoels, like all the other parties, were bound by

the settlement agreement reached on April 19.

      The official claim releases were not signed until that August, after the

arbitration was complete (but before its results were disclosed). The Shoels

signed their final releases against Manes, Anderson, and Duran, but not against

the Klebolds and Harrises. Although the Harrises and Klebolds maintained their

position that the Shoels were bound by their April 19 acceptance, they did make

further settlement overtures to the Shoels, in hopes they could persuade the

Shoels not to contest the validity of the settlement agreement. When those

negotiations broke down, the Shoels moved to have their case sent back to state

court (where Mr. Fieger was confident that he could get the case to a jury), and

the Klebolds and Harrises brought motions to enforce the settlement agreement.

After an evidentiary hearing in March of 2003, the district court determined that



      Apparently, Mr. Fieger lost this focus on the bottom line sometime
      3

between the Spring of 2001 and oral argument, where he insisted that the dispute
was “not about the money.”

                                           -11-
the Shoels had accepted an offer to settle on April 19, and that they were bound

by their contract.

                                       DISCUSSION

       “A trial court has the power to summarily enforce a settlement agreement

entered into by the litgants while the litigation is pending before it.”    United

States v. Hardage , 982 F.2d 1491, 1496 (10th Cir. 1993). We review the district

court’s decision to enforce such an agreement for an abuse of discretion.      Id. at

1495. An abuse of discretion occurs when the district court “based its decision on

an erroneous conclusion of law or where there is no rational basis in the evidence

for the ruling.”   Wang v. Hsu , 919 F.2d 130, 130 (10th Cir. 1990). Issues

involving the formation and construction of a purported settlement agreement are

resolved by applying state contract law.      United States v. McCall , 235 F.3d 1211,

1215 (10th Cir. 2000).

       In this appeal, Appellants present three primary arguments for overturning

the district court’s enforcement of the settlement agreement. First, they argue that

Mr. Fieger did not have his clients’ express authority to settle the claims, making

his April 19 letter ultra vires and hence invalid. Second, they argue that the terms

of the settlement were too vague to constitute a binding agreement, and were at

most a preliminary agreement to agree. Third, they argue that their mistake about

the Rouse group’s participation, which they claim was caused by Mr. Wahlberg’s


                                             -12-
misrepresentation, gave them the option of voiding the contract, which they

immediately did. We consider each contention in turn.

                                                I

       Relying on the settled Colorado rule that an attorney cannot settle a claim

unless the client expressly authorizes him to do so, the Shoels first argue that Mr.

Fieger had no authority to settle their claims on their behalf.    See Cross v. Dist.

Court , 643 P.2d 39, 41 (Colo. 1982) (en banc) (“[A]s we have stated on numerous

occasions, an attorney does not have the authority to compromise and settle the

claim of his client without the knowledge or consent of his client.”) In response,

Appellees point out that Mr. Fieger himself testified that he had exclusive

authority to negotiate on behalf of the Shoels, and that in June of 2000 he

authorized local counsel to “make a settlement” offer. Of course, that evidence is

not dispositive; an attorney may be authorized to negotiate even if the client

retains sole authority to sign off on the final agreement, and the fact that an

attorney has his client’s consent to authorize an offer in one case does not prove

that he has it to accept a very different offer several months later.

       More helpful is Appellee’s citation to       Thomas v. Colorado Trust Deed

Funds, Inc. , 366 F.2d 136, 139 (10th Cir. 1966), where this Court held that there

is a presumption that an attorney has express authority to settle unless there is

evidence to the contrary in the record. When they first disputed the settlement,


                                             -13-
counsel for the Shoels never claimed that their clients had not signed off on the

acceptance or that Mr. Fieger had been acting contrary to his clients’ wishes.

Appellants now cite evidence that, at earlier stages of negotiations, they had

refused to settle without knowing in advance the ultimate dollar value they would

receive. Mr. Fieger strains to read this as evidence of a limitation on his authority

to settle, but we are not convinced. Parties often relax their supposedly non-

negotiable demands over the course of negotiations, and the mere fact that a party

does so through counsel does not suggest that counsel has exceeded the scope of

his express authority. Of course, counsel for the Shoels did renew their demand

for a precise figure after April 19, but only once they learned that the Rouse

group was not participating. Appellants’ position seems to have been that,

despite their demand for a fixed settlement amount, if all the other attorneys

agreed to the arbitration procedure, they would not be “the sole laggards” or

“obstructionists.” App. 481. Thus, even if Mr. Fieger’s long refusal to settle

except in return for a fixed dollar amount were probative of a corresponding

limitation on his authority, his apparent willingness to settle so long as the Rouse

group settled – even before the arbiter had determined what the Shoels would

receive – would be just as probative of his authority to do so.

      Evidence about the Shoels’ general negotiating position provides at best

indirect evidence for whether the Shoels really did change course and agree to the


                                         -14-
arbitration process by April 19. The most direct evidence is the text of the April

19 letter itself: “This letter shall serve to confirm that Mr. and Mrs. Shoels   have

approved settlement with Defendants Klebold, Harris, Manes, Anderson and

Duran.” App. 153 (emphasis added). If one takes that sentence at face value, it

states that the Shoels either approved the agreement themselves or authorized Mr.

Fieger to do so. Admittedly, the record also contains a few stray remarks that

could possibly be read to indicate a lack of authority; for instance, Mr. Fieger did

testify that the Shoels “had already indicated they refused to sign the [arbitration]

agreement” in the days leading up to April 19, suggesting that they were still

refusing to participate when the acceptance letter was sent. App. 482. But that

testimony was all in support of Mr. Fieger’s claim that his letter was

“misworded,” and that in fact neither he nor the Shoels meant to commit to

settlement on April 19. The district court specifically discredited that claim.

Thus, the facts as found by the district court establish that Mr. Fieger, at least,

intended to settle. Op. 9. In light of the language of Mr. Fieger’s letter and the

presumption that an attorney does not act without authorization, the most natural

conclusion is that the Shoels also intended to settle. Indeed, there was no hint of

a division between the Shoels and their counsel in the proceedings below. Thus,

there was a sufficient basis in the record for the district court’s finding that the

Shoels, through counsel, accepted the Harris/Klebold offer.


                                             -15-
       But even if we were not convinced of this, it would be improper to reverse

the district court on this ground, because the Shoels never properly presented their

lack-of-authority claim to that court. When pressed at oral argument, Mr. Fieger

stated that he did raise the claim, and cited several pages of the transcript where

he testified that the Shoels consistently refused to settle without knowing the

dollar amount they would receive. But even though Mr. Fieger’s testimony about

the Shoels’ refusal to consent could conceivably have provided a factual basis for

the legal claim he now raises, that is not enough; a party must also present the

legal basis of the claim to the district court clearly and explicitly.       See N. Natural

Gas Co. v. Hegler , 818 F.2d 730, 734 (10th Cir. 1987) (refusing to consider a

legal claim suggested by the evidence but not argued below);             Lyons v. Jefferson

Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993)         (stating that “vague, arguable

references to [a] point in the district court proceedings do not . . . preserve the

issue on appeal”) (quoting     Monarch Life Ins. Co. v. Elam , 918 F.2d 201, 203

(D.C. Cir. 1990) (brackets and ellipses in original)). Nowhere in the briefing or

argument did Mr. Fieger argue that he lacked authority or cite any cases raising

the issue of an attorney’s authority to settle on behalf of a client. His theory was

not that he had settled the case without the Shoels’ permission; rather, his theory

was that neither he nor the Shoels settled or intended to settle. The general rule

in this circuit is that “a party may not lose in the district court on one theory of


                                              -16-
the case, and then prevail on appeal on a different theory.”       McDonald v. Kinder-

Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002) (quoting         Lyons , 994 F.2d at

721).

        Of course, we do have discretion to make exceptions in extraordinary

circumstances, and as Appellants note, we are more willing to exercise that

discretion when the newly raised issue is primarily a legal one.         See, e.g. , Petrini

v. Howard , 918 F.2d 1482, 1483 n.4 (10th Cir. 1990) (“A federal appellate court

is justified in reversing a judgment on the basis of issues not raised below when,

as here, the issues involved are questions of law, the proper resolution of which

[is] beyond reasonable doubt, and the failure to address the issues would result in

a miscarriage of justice.”). But because the question of Mr. Fieger’s authority is

essentially factual, it would be inappropriate to make an exception in this case.

Had this issue been properly raised below, both sides could have presented

evidence (including, perhaps, the crucial testimony of Mr. and Mrs. Shoels) about

what the Shoels knew and what they authorized, rather than focusing on Mr.

Fieger’s intent to settle (which is irrelevant if he lacked authority to settle in the

first place). When a fact question is not squarely presented to the finder of fact

and the adverse party, it would be unfair to allow an appellant to prevail simply

because the evidence accidentally adduced on that question tips in the appellant’s

favor. See Singleton v. Wulff , 428 U.S. 106, 120 (1976)       (explaining that appellate


                                            -17-
courts should generally decline to reach newly argued issues so that “litigants may

not be surprised on appeal by final decision there of issues upon which they have

had no opportunity to introduce evidence”). That is doubly true when an

appellant wishes to argue that the acts of an attorney are not imputable to his

client, as they are generally presumed to be.

                                             II

       Next, the Shoels argue that the April 19 letter could not have created a

binding contract because the terms of the proposed settlement were still too

vague. They claim that at most, their agreement was a nonbinding agreement in

principle, subject to further negotiations. In Colorado, whether negotiations are

sufficiently definite and final to create a binding contract is to be decided by the

finder of fact.   I.M.A., Inc. v. Rocky Mountain Airways, Inc.   , 713 P.2d 882, 887

(Colo. 1986) (en banc). The district court determined that there was a binding

contract, and the record supports its finding. Mr. Wahlberg’s April 16 letter, as

well as his subsequent telephone conversations with the Shoels’ counsel, laid out

the terms of the Klebolds’ and Harrises’ offer in detail, explaining exactly how

much they were offering, how a portion of that amount would be held in reserve

to cover the Rouse group’s claims, and how the remainder would be distributed

among the settling plaintiffs. Mr. Fieger’s reply letter was no less definite,

stating in categorical terms that the Shoels had approved settlement. It contained


                                            -18-
no language suggesting that their approval was provisional or “tentative” (as Mr.

Raymond tried to describe it the next day). The context of that letter also

suggests that it was meant to be binding. The Shoels had been “participating”

without committing to the arbitration process for quite some time. As the district

court noted, the question on April 19 was whether they would finally commit so

that the settlement, as set forth in the April 16 letter, could be finalized. And if

the content and context of the letter were not enough to show that the parties

meant to enter a binding agreement, we have local counsel’s own insistence, just

one day after the April 19 letter, that the Shoels’ attorneys “were not surprised

that there was a settlement.” App. 180.

      Despite this evidence, Appellants contend that the district court’s finding

was clear error. They stress the fact that at the time of their alleged acceptance,

there was no way they could know how much they would get out of the

settlement. This, they claim, makes their case analogous to Colorado cases in

which an agreement was held unenforceable.       See, e.g. , Griffin v. Griffin , 699

P.2d 407 (Colo. 1984) (en banc);   Difrancesco v. Particle Interconnect Corp.      , 39

P.3d 1243, 1250 (Colo. Ct. App. 2001).     But these cases involved very different

facts. In Griffin , a husband and wife had agreed as part of a divorce settlement

that they would reach a joint agreement about where their daughter would go to

school. When they were unable to reach such an agreement, the mother (who had


                                          -19-
custody of the child and thus the legal right to choose her school) chose a school

over the father’s objection. The Colorado Supreme Court held that because the

parties’ separation agreement “made no provision for the resolution of

disagreement concerning the selection of schools,” and because the court could

not force the parents to agree on a school, it could not enforce the agreement.

Griffin , 699 P.2d at 409. Similarly,   Difrancesco involved a license agreement

that not only left essential terms like the royalty rate and license scope

unspecified, but also failed to specify any method by which these terms could

later be determined. 39 P.3d at 1250. The lack of such a method brought those

cases within the firmly settled Colorado rule that “[i]f essentials are unsettled,

and no method of settlement is agreed upon     , there is no contract.”   Greater Serv.

Homebuilders’ Inv. Ass’n v. Albright    , 293 P. 345, 348 (Colo. 1930) (en banc)

(emphasis added).

       In stark contrast to these cases, the settlement agreement set forth in the

April 16 letter (which is what the plaintiffs accepted on April 19) provided a

method for fixing a definite value for the Shoels’ claims: a neutral arbiter, Judge

Carrigan, would determine their value. In such circumstances, it is irrelevant that

the value of the claims was difficult to predict in advance; otherwise, every

futures contract would be void in Colorado. Once Appellants knew how much

money the Klebolds and Harrises were offering to make available, and that those


                                           -20-
funds would be distributed according to the relative value of each plaintiff’s

claims as determined by Judge Carrigan, the arrangement was sufficiently specific

to constitute an enforceable contract.

       Appellants can also be understood to raise a closely related, but

conceptually separable, argument. It is that even if the terms were specific

enough to be enforceable, still Appellants’ correspondence was meant merely to

state tentative approval, not final agreement. Under Colorado law, an acceptance

conditioned on reaching a later, more detailed agreement is not binding.

Difrancesco , 39 P.3d at 1248. Moreover, correspondence during the course of

negotiations is often best construed as being conditioned in this way.     Pierce v.

Marland Oil Co. , 278 P. 804, 806 (Colo. 1929) (in dep’t). However, though some

evidence in the record supports this interpretation of the April 19 acceptance, it is

insufficient to disturb the district court’s factual finding.

       First, Appellants note that the April 19 letter purported to approve

settlement with Robyn Anderson, and since it is undisputed that she had not yet

offered a particular amount in settlement, they argue that the April 19 “approval”

of settlement with her could not have been meant as a binding acceptance. They

then infer that the letter’s approval could not have been meant as a binding

acceptance of the other defendants’ offers, either. That is one possible

interpretation of the letter. Another possibility is that Mr. Fieger’s April 19


                                           -21-
reference to Robyn Anderson was a simple mistake and was therefore irrelevant to

the effect of the letter with respect to the valid offers. At the time, Mr. Wahlberg

interpreted the approval letter in yet a third way: in his view, the letter did not

operate directly as an acceptance of the various settlement offers; rather, by

“approv[ing] settlement,” it gave Mr. Wahlberg authorization to settle on behalf

of the Shoels. In the aftermath of Mr. Fieger’s disavowal of his April 19 letter

with respect to the Klebolds and Harrises, Mr. Wahlberg reaffirmed his

understanding that Mr. Fieger’s letter had given him authority to settle the Shoels’

claims against Anderson, Duran, and Manes, and Mr. Fieger’s subsequent

correspondence appeared to concede that point. If Mr. Wahlberg’s interpretation

was correct, it would not matter that Anderson’s claims were not settled for

another week or so. On that interpretation, the April 19 letter gave Mr. Wahlberg

authority to settle the various claims; he exercised that authority immediately with

respect to the Klebolds and Harrises but only later with respect to Anderson.

Thus, even if we reject the district court’s simpler view that the April 19 letter

was an acceptance, we still find ample record support for its ultimate factual

conclusion that a binding agreement was formed that day.

      Second, Appellants rely on the fact that the Shoels never released their

claims by signing the official arbitration agreement itself. Appellants suggest that

signing the release form was a condition precedent to the existence of a valid


                                          -22-
agreement. In part, this contention seems to be based on a conflation of

conditions precedent to the   agreement and conditions precedent to the Klebolds’

and Harrises’ performance . While it is true that no funds were to be disbursed

until the releases were signed, it does not follow that no contract existed until that

time. Appellants also rely on language from section IV(B) of the Judicial Arbiter

Group’s arbitration agreement, which states that “[b]y signing this

Agreement . . . the Claimant is agreeing to be bound by the distribution as

awarded by the Arbiter.” App. 198. They claim that this language makes signing

a necessary precondition to being bound. But while it does appear that the

agreement contemplated acceptance by signing, the quoted language does not

imply that signing the agreement was the    only way to accept. Its true effect is to

set forth one of the consequences of entering the agreement (namely, becoming

bound by the arbitration), not to limit the means by which the agreement might be

entered.

      Finally, there is the text of the claimants’ joint acceptance letter itself.

Some of its language does seem provisional:

             Further, the statute of limitations shall be tolled for 30
             days from April 20 for anyone participating in the
             proceedings before Judge Carrigan so that we      may
             prepare a mutually acceptable settlement agreement      .

App. 159 (emphasis added). This language, while relevant, is not dispositive.

While the letter clearly contemplates working out a more detailed agreement,

                                           -23-
nowhere does it state that the existence of a binding contract is conditioned on

successfully completing that process. “‘[T]he mere intention to reduce an oral or

informal agreement to writing, or to a more formal writing, is not of itself

sufficient to show that the parties intended that until such formal writing was

executed the parol or informal contract should be without binding force.’”      Rocky

Mountain Airways , 713 P.2d at 888, quoting Coulter v. Anderson , 357 P.2d 76, 80

(Colo. 1960) (in dep’t). It may be possible to interpret Mr. Wahlberg’s language

as saying that there was no binding agreement on April 19, and if such an

agreement were not formulated within thirty days, the plaintiffs would remain free

to bring suit. But it is also possible that the plaintiffs did consider themselves

bound, but required the statute of limitations to be tolled so that they would still

be able to bring suit in the event that the defendants breached the agreement to

deposit their funds in escrow.    See Goltl v. Cummings , 380 P.2d 556, 558-59

(Colo. 1963) (in dep’t) (finding that a settlement agreement existed in similar

circumstances). Given the non-tentative beginning of Mr. Wahlberg’s letter

(“The purpose of this letter is to accept the settlement proposal . . . .”), on balance

it, too, supports the district court’s conclusion. And whatever ambiguities may be

read into the text now, the district court rightly resolved those ambiguities in light

of Mr. Raymond’s contemporaneous admission that the parties understood the

April 19 settlement to be final. Op. 9;   see App. 180. Thus, whether Mr. Fieger’s


                                           -24-
letter was itself meant as an acceptance, or whether it was meant to authorize Mr.

Wahlberg to settle on behalf of the Shoels, the district court’s determination that

there was a binding acceptance has ample record support.

       Appellants cite in their favor   New York Life Ins. Co. v. K N Energy, Inc.      , 80

F.3d 405 (10th Cir. 1996), in which this Court applied Colorado law to hold a

note purchase agreement unenforceable. However, the purported agreement in

that case was marked by its use of the conditional tense to describe what “would

be” the case if the deal were consummated, and unlike Mr. Wahlberg’s letter, it

specifically stated that the deal would not be consummated until the parties

reached “final agreement upon terms, conditions, covenants and other provisions

satisfactory to Prudential.”   Id. at 411. Those facts alone suffice to distinguish      K

N Energy . In addition, K N Energy is of limited relevance here, because it did not

squarely decide whether a contract existed. Instead, because several conditions

precedent to the actual note purchase had not been fulfilled, the panel held that

the purported agreement was      either “an [unenforceable] agreement to agree        or a

contract subject to conditions precedent which were never fulfilled.”        Id.

(emphasis added). The Shoels have not shown that the Harrises and Klebolds

have failed to perform any act on which the Shoels’ obligation to release their

claims was conditioned. Rather, the Harrises and Klebolds have deposited their

funds as required, and now demand that the Shoels fulfill their part of the bargain.


                                            -25-
                                         III

      Appellants’ final argument is that they should not be held to the contract

because their acceptance was predicated on either a mistake or a

misrepresentation. In particular, they assert that in the discussions and

correspondence immediately prior to Mr. Fieger’s acceptance, Mr. Wahlberg told

local counsel that “everybody is on board except the Shoels,” App. 202, 217, and

“everyone else has signed the agreement,” App. 194, falsely leading the Shoels

and their counsel to believe that the Rouse plaintiffs had reconsidered their

refusal to settle with the Klebolds and Harrises. This is not a newly argued

objection to the alleged settlement. As we have already noted, just one day after

Mr. Fieger’s acceptance, Mr. Raymond wrote to Mr. Wahlberg: “[W]e were not

shocked that there was a settlement. We were shocked that there was a settlement

that did not include Rouse’s group as to Klebold and Harris.” App. 180.

      The district court found that because it had been well-established since at

least March of 2001 that the Rouse group was refusing to settle with the Klebolds

and Harrises, Mr. Wahlberg’s statements that “everyone else” had signed the

agreement could not reasonably be interpreted to mean that the Rouse plaintiffs

had changed their minds. Rather, the only reasonable interpretation was that “all

of the claimants who previously had indicated a willingness to participate in

arbitration had signed the agreement.” Op. 10. Thus, the Court concluded that


                                        -26-
“the Shoels cannot reasonably claim that they accepted the terms of the arbitration

agreement based on the erroneous assumption that the Rouse group was also

participating.” Op. 10-11.

       The ultimate question here, therefore, is whether their counsel’s

unreasonable misunderstanding of Mr. Wahlberg’s statements allows the Shoels to

avoid their agreement. Because there is no hint in the record that the Klebolds

and Harrises shared Appellants’ mistake, that question seems easily resolved by

the venerable principle that a unilateral mistake of one party to an agreement is

not ground for rescission.    Royal v. Colorado State Personnel Bd.   , 690 P.2d 253,

255 (Colo. Ct. App. 1984) (“What Royal may have understood or contemplated is

not relevant. A unilateral mistake or mistake of law, if any, is not a ground for

setting aside an agreement.”);    In re Marriage of Manzo , 659 P.2d 669, 672 (Colo.

1983) (en banc) (“[T]raditionally a contract may not be rescinded because one

party has made a unilateral mistake as to value unless the other party knew or had

reason to know of the error.”);   Kuper v. Scroggins , 257 P.2d 412, 413 (Colo.

1953) (en banc) (“In order to avoid a contract on the ground of mistake, it must

be a mutual mistake.”).      The Shoels, however, propound three reasons why that

principle does not dispose of the case. First, they rely on an equally hoary

principle of the law of contracts: that there must be a meeting of the minds on all

material points before a contract exists. Second, they argue that the rule against


                                           -27-
granting rescission based on unilateral mistakes is not as absolute as it is

sometimes expressed, and the equities favor setting aside the agreement in their

case. Third, they note that courts have traditionally applied more lenient

standards when one party’s mistake is the result of misrepresentation or fraud,

and at least the former is alleged here. For the reasons explained below, however,

none of these doctrinal wrinkles persuades us that the Colorado Supreme Court

would excuse the Shoels’ unilateral mistake in this case.

                                            A

       Although one party’s mistake about the facts relevant to an agreement is

not normally grounds for rescission, the same is not true if the “mistake” goes to a

material term of the agreement itself. When the language of a contract contains a

latent ambiguity and one of the parties is in fact assenting to something different

from what the other party agrees to, the upshot of that “mistake” is that there was

never a meeting of the minds as to a material term of the contract, and

consequently there was never any contract at all. The textbook example of this

principle is Raffles v. Wichelhaus 159 Eng. Rep. 375 (Ex. 1864), where the parties

agreed to the sale of goods aboard a ship called   Peerless , but were in fact

referring to two different ships by that name.

       That principle is inapplicable here. The Shoels’ lawyers’ mistake regarding

whether the Rouse group was participating in the settlement at most affected their


                                           -28-
assessment of the value of their claim or the desirability of entering the

settlement. It did not create any ambiguity regarding the terms or substance of

the settlement agreement. Under that settlement, the Shoels agreed to release

their claims in return for the Klebolds contributing $1,568,000 into a fund that

would be divided up in arbitration. The rights and obligations on both sides were

the same, whether or not the Rouse group was participating. We therefore reject

Appellants’ contention that there was no meeting of the minds because of their

misunderstanding about the Rouse group.

                                          B

      Appellants argue that even if their mistake was unilateral, equity

nevertheless favors voiding the contract because the Harrises and Klebolds did

not rely on their acceptance before it was revoked. They cite in their favor

Powder Horn Constructors, Inc. v. City of Florence   , 754 P.2d 356 (Colo. 1988)

(en banc). In that case, a contractor’s bid on a city construction project

erroneously omitted certain expenses and thus was substantially lower than the

other bids. Before the city had accepted any of the bids, the contractor noticed

the mistake, informed the city, and submitted a corrected bid. Thereafter, the city

accepted the original bid. Noting that “[n]o contract for construction of the

project was ever executed by the parties, and there was no delay, no surprise, and

no justifiable reliance by the City,” the Colorado Supreme Court held that the


                                         -29-
contractor was entitled to withdraw its bid, even though such bids are generally

irrevocable. Powder Horn , 754 P.2d at 361. Furthermore, the court refused to

require a showing that the contractor had not been negligent, holding that material

clerical errors (as opposed to errors in judgment) justify withdrawing a bid so

long as the bid was made in good faith and the public authority did not rely on the

bid to its detriment.   Id. at 363.

       However, the Powder Horn court refused to rely solely on the absence of

detrimental reliance by the city. The court noted no fewer than five times that its

holding extended only to cases in which the bid was withdrawn prior to formation

of a contract. See id. at 359, 360, 361, 363, 364. It also relied on the fact that the

city knew about the mistake prior to accepting the erroneous bid.    See id. at 363-

64. In the Shoels’ case, by contrast, the unilateral mistake was by the party who

accepted the contract, and so the attempted withdrawal did not occur until after a

contract had been formed.

       This distinction is rooted in the idea that parties can make promises to each

other that are binding well in advance of performance or detrimental reliance.

The moment that each party has given up some consideration in return for the

other party’s performance, each becomes entitled to the bargained-for

performance, and if the other party declares a moment later that it will not

perform, the measure of damages will be relative to the parties’ expectations of


                                           -30-
full performance, not their reliance damages. As the Colorado Supreme Court

noted in Powder Horn , one of the “basic policies underlying the enforcement of

contracts” is the protection of those legitimate expectations.     Id. at 364.

       In the public bid context in which     Powder Horn was decided, bids are

irrevocable upon opening in order to “protect the integrity of the bidding

process,” id. at 360, not to protect bargained-for expectations. For in the typical

case, a city has not given up anything in exchange for the lowest bidder’s

performance when it first opens the bids. It remains free to select another

contractor or to reject all of the bids and cancel the project. Outside of the

bidding context, general principles of contract law preserve symmetry between the

offeror and offeree by making the offeror just as free to withdraw the offer as the

offeree is to reject it. Thus, it was quite reasonable for the Colorado Supreme

Court to hold that equity favored the mistaken offeror over the city’s desire to

reap a “windfall profit” for which it had given up nothing.      Id. at 364. This case,

though, involves an attempt to revoke an acceptance, not an offer. That

difference is significant because unlike the city in    Powder Horn , the Klebolds and

Harrises lost their freedom to renegotiate the moment the Shoels made their

“mistake” and accepted the settlement. Thus, although it is true that the Klebolds

and Harrises had not relied on the contract before the Shoels’ counsel repudiated

it, Mr. Fieger’s acceptance letter materially changed their position by committing


                                             -31-
them to stand by their offer. Having committed to pay almost $1.6 million to

settle all of the claims against them, including the Shoels’ claims, the Klebolds

and Harrises were entitled to the release of those claims.

       Appellants also rely on the Second Restatement of Contracts, which does

allow unilateral mistake to void a contract under certain circumstances. Even the

Restatement, though, does not allow relief when doing so would frustrate the

legitimate contract-based expectations of innocent parties.       Powder Horn , 754

P.2d at 364 n.7.   Rather, it allows relief only if the mistakenly entered contract

was unconscionable or the defendant knew or had reason to know of the mistake,

thus casting doubt on the legitimacy of the defendant’s expectations.       Restatement

(Second) of Contracts § 153; Powder Horn , 754 P.2d at 364 (noting that “equity

will not allow a party to knowingly take advantage of a mistake of another”).

       If the Klebolds and Harrises, like the sharp-dealing city in     Powder Horn ,

had known of Appellants’ mistake, we would have to decide how the Colorado

Supreme Court would apply      Powder Horn ’s analysis in the context of a fully-

formed contract. But the Klebolds and Harrises, who were not party to the

discussions between Mr. Wahlberg and counsel for the Shoels, had no way of

knowing about the miscommunication about the Rouse group’s participation when

the contract was formed. Rather, they were just the kind of innocently

contracting parties whose protection the Colorado Supreme Court considers to be


                                            -32-
of fundamental importance to the law of contracts.     See Powder Horn , 754 P.2d at

364. We therefore reject the argument that Appellants should have been

permitted to withdraw from the settlement agreement because of their unilateral

mistake.

                                            C

      Finally, Appellants argue that they accepted the settlement not merely

because of their own confusion, but rather because Mr. Wahlberg affirmatively

(though, they concede, innocently) misrepresented the status of the Rouse group.

Under Colorado law, rescission based on misrepresentation is both easier and

harder to obtain than rescission based on unilateral mistake. On the one hand,

Colorado law allows rescission of an acceptance based on a material

misrepresentation even after the contract is formed, and even if the other party did

not knowingly or unconscionably take advantage of the resulting

misapprehension.    See Wall v. Foster Petroleum Corp.    , 791 P.2d 1148, 1150

(Colo. Ct. App. 1989); Bassford v. Cook , 380 P.2d 907, 910 (Colo. 1963) (in

dep’t); Wheeler v. Dunn , 22 P. 827, 833 (Colo. 1889) (setting forth the

requirements for equitable rescission based on misrepresentation);    see also

Restatement (Second) of Contracts     § 164(2). But on the other hand, while

Powder Horn allowed the withdrawal of a bid even based on negligent mistakes

so long as they were made in good faith, 754 P.2d at 363, it is “well settled” that


                                          -33-
plaintiffs must show that their reliance on a material misrepresentation was

justified. M.D.C./Wood, Inc. v. Mortimer , 866 P.2d 1380, 1383 (Colo. 1994) (en

banc). Thus, the contract is voidable on this ground only if Mr. Wahlberg’s

statement was a material misrepresentation on which the Shoels were justified in

relying.

      Appellants fail to establish that it was. First, it is far from clear – in light

of the district court’s factual findings – that Mr. Wahlberg’s statement that

“everyone is on board,” App. 202, was a misrepresentation at all. In context,

according to the district court, this statement could only be reasonably interpreted

to refer to those parties engaged in negotiations, which (with respect to the

Klebolds and Harrises) did not include the Rouse group. Mr. Wahlberg was

simply informing Appellants that they were the last claimants whose assent was

necessary to finalize the various settlements.

      Even assuming the statement could be regarded as a misrepresentation,

Appellants make no showing that it was material. Whether or not the Rouse

plaintiffs participated, the arbiter would determine the Shoels’ portion of the

insurance proceeds by calculating the ratio of their damages to the total of all

damages (including the Rouse group’s damages). Either way, the Shoels’ likely

share of the proceeds would have remained roughly the same, and might even

have been larger if the Rouse group did not participate (since the agreement was


                                          -34-
that funds set aside but not ultimately used to defend particular claims would

eventually be distributed among the settling claimants).

       Nor have Appellants established that they were justified in relying on Mr.

Wahlberg’s misrepresentation (if it can be called that). Under Colorado law,

reliance on a misrepresentation is unjustified if the context obviously calls its

accuracy into question or suggests that further investigation is necessary.    See,

e.g. , Mortimer , 866 P.2d at 1381-82 (plaintiffs were not justified in relying on a

verbal misrepresentation about the location of a proposed highway; because a

prominently displayed map showed the correct location, plaintiffs had a duty to

inquire further); Bassford , 380 P.2d at 909-10 (buyers were not justified in

relying on arguably inaccurate explanations for cracks in the walls of a house

when the seller had given them the contact information of the engineer who could

explain the problem in more detail). Mr. Wahlberg suggested that “everyone

else” had agreed to settle on two different occasions: both in an April 13 letter,

and then again in the April 18 telephone conversation. App. 194, 202, 217. But

in the interim, his April 16 letter setting forth the final contours of the settlement

painstakingly explained that the Klebolds and Harrises would be withholding

from the settlement proceeds the portion of funds attributable to the Rouse group

and other nonsettling claimants. App. 606. The April 16 letter, together with the

Rouse group’s long refusal to settle with the Harrises and Klebolds, supports the


                                            -35-
district court’s finding that it was unreasonable for Appellants to rely on Mr.

Wahlberg’s statement to conclude that the Rouse group had changed its position.

Even were we to disagree with that finding, under Colorado law we would be

bound to defer to the district court’s assessment on this point.   See Mortimer , 866

P.2d at 1382. Misunderstanding, not misrepresentation, was the basis for

Appellants’ acceptance, and so they cannot evade the normal limitations on relief

from the consequences of their mistake.

                                     CONCLUSION

       For the reasons discussed above, the decision of the district court is

AFFIRMED.




                                            -36-
