08/27/2024
DA 23-0652
Case Number: DA 23-0652
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 186
DR. KIMBERLY STRABLE,
Plaintiff and Appellant,
v.
CARISCH, INC., d/b/a ARBY’S,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV-2021-866
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nicholas LeTang, Passamani & LeTang, PLLC, Helena, Montana
For Appellee:
Kirk D. Evenson, Amber Henning, Marra, Evenson & Levine, P.C.,
Great Falls, Montana
Submitted on Briefs: June 12, 2024
Decided: August 27, 2024
Filed:
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__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Plaintiff and Appellant Kimberly Strable (Strable) appeals from the October 4, 2023
Order on Defendant’s Motion for Summary Judgment and the accompanying October 18,
2023 Judgment issued by the First Judicial District Court, Lewis and Clark County. The
District Court granted summary judgment in favor of Defendant and Appellee Carisch,
Inc., d/b/a Arby’s (Arby’s) on Strable’s claims arising out of a failed Montana Human
Rights Bureau (HRB) conciliation process regarding Strable’s age discrimination claim
against Arby’s.
¶2 We address the following restated issue on appeal:
Whether the District Court erred by granting summary judgment to Arby’s after
determining no enforceable contract existed between the parties.
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In August 2020, Strable, who was not yet 18 years old, inquired with Arby’s in
Great Falls about an open managerial position. Strable alleged Arby’s informed her she
could not apply to be a manager because she was under 18. Strable thereafter filed an age
discrimination claim with the HRB.1 The HRB issued a reasonable cause determination
on April 7, 2021. After the HRB’s reasonable cause determination, the parties entered into
a conciliation process as set forth in § 49-2-504(2)(c), MCA, and Admin. R. M. 24.8.301
(2008).
1
In total, Strable filed approximately 300 discrimination claims with the HRB, approximately 200
of which were employment-related age discrimination claims.
2
¶5 Strable’s then-attorney, Raph Graybill, and Arby’s then-attorney, Thomas Revnew,
began negotiations attempting to reach a voluntary resolution agreement. After
negotiating, Strable and Arby’s reached an agreement in principle on the monetary portion
of a conciliation agreement. Revnew sent Graybill an email stating:
Raph,
We have an agreement to resolve this matter at $25,000, subject to a mutually
agreeable settlement agreement. I understand you’ll reach out to Ms. Beck.
Let me know if you wish to discuss. Thanks.
Graybill then sent an email to Sandra Page, legal secretary at the Office of Administrative
Hearings (OAH), informing her of the tentative agreement:
Dear Sandra –
The parties in Strable v. Arby’s have reached an agreement in principle to
resolve Charging Party’s claims. They are currently in the process of drafting
settlement documents. In the interest of judicial economy and in light of
tomorrow’s deadline to file preliminary pre-hearing statements, the parties
jointly request that the Hearing Officer continue that deadline by 30 days to
allow the parties time to formalize settlement and move to dismiss Charging
Party’s claims.
Counsel for Arby’s is CC’d on this email.
Page responded:
Good morning,
Thank you for letting me know. We will dismiss the matter once HRB has
approved the settlement and any affirmative relief & closed the case at HRB.
In addition to his email to Page, Graybill emailed HRB conciliator Clarice Beck to inform
her:
Dear Clarice –
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Strable and Carisch, Inc. (Arby’s) have reached an agreement in principle to
resolve Strable’s claims. We want to be sure that any settlement agreement
is mindful of—and resolves—the Bureau’s own objectives for equitable
relief.
Do you have language to that effect that would resolve any outstanding
agency issues, and if so would you be willing to provide it? Or, if I should
be reaching out to someone else (e.g., Andria) please let me know.
Thank you for your assistance.
Raph
PS: I have included Tom Revnew, counsel to Carisch, on this email.
Beck responded:
Good morning counsel,
That is good news. I will send a DRAFT Conciliation Agreement for your
review and any changes you might have.
Should be able to get that to you no later than tomorrow, hopefully this
morning.
Later that morning, Beck emailed a draft conciliation agreement to both Graybill and
Revnew:
Good morning,
Attached a Draft Agreement for you to work with.
Let me know if I can do anything else.
The draft conciliation agreement sent by Beck included a blank space for a monetary
settlement amount between the parties and contained affirmative relief provisions for
Arby’s, including removing language pertaining to age requirements from job postings, a
requirement to conduct employee training on discrimination, posting a non-discrimination
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poster in a conspicuous place in the work area, and requiring Arby’s to conduct its business
in a way that neither discriminates nor retaliates against any person for opposing
discriminatory practices.
¶6 The parties did not finalize or sign the draft agreement before Graybill withdrew as
Strable’s counsel. Strable thereafter sought to finalize settlement with Revnew acting pro
se. She emailed him directly:
Good morning! As I’m sure you know Mr. Graybill no longer represents me.
I am reaching out to see if your client still intends on settling this case and if
so can you please send me the documents?
After Revnew did not reply, Strable again emailed him:
Good evening. I am just checking in to see if Arbys still intends on settling
this case? If so can you please send me the documents so we can get this
finalized?
Strable also repeatedly contacted HRB conciliator Beck, who then emailed Revnew:
Good morning Tom,
I have had a number of emails and a phone call from Ms. Strable asking about
your client. She seems to think that the case may be settled.
I have not received any information regarding a settlement and as you know
if there is a settlement the Bureau must be involved for the targeted equitable
relief aspect.
If it is not settled then the venue at the Office of Administrative Hearings is
where the parties should be and I will let her know that again.
Thank you for your help.
On August 7, 2021, Strable emailed both Beck and Revnew:
Good afternoon. I have tried to reach out to Arby’s multiple times regarding
the settlement we came to. However I still have not heard back. Can you
please see where they are at and if I can get a copy of the draft agreement?
5
On August 9, Beck responded:
You are using the same address I have for Respondent, so If Mr. Revnew
wants to respond on behalf of his client we both should receive that email. If
not the parties are in the proper venue.
On August 16, Revnew responded:
Ms. Strable,
Thank you for your e-mails and voice-mail messages. Until Mr. Graybill’s
motion to withdraw was approved on July 30, 2021, I was ethically
prohibited from talking to you. After his motion to withdraw was approved,
I have either been out of the office or dealing with some time-consuming and
pressing litigation matters. Regardless, I needed to and have since reviewed
the status of this matter with my client. As you know, the parties never
passed draft settlement agreements to each other nor did they ever discuss
with the Human Rights Bureau what the Bureau would require for
affirmative relief in order for there to be a settlement. In fact, as I believe
Ms. Beck has indicated, she has not seen any draft settlement agreement from
the parties. Without any agreement between the parties and the Bureau as to
the affirmative relief requirements, there can be no meeting of the minds or
settlement agreement. For the time-being, given the facts and circumstances
involved with your alleged claims, my client has decided to defend itself in
the litigation before the Office of Administrative Hearings rather than resolve
this matter. Feel free to Call me if you wish. Thanks.
¶7 On August 30, 2021, Strable filed Plaintiff’s First Amended Complaint and Request
for Stay of Administrative Proceedings, Attorney’s Fees in the District Court.2 Strable set
forth claims for breach of contract, bad faith, and equitable estoppel arising from Arby’s
denial a settlement agreement existed. Arby’s moved to dismiss the matter for lack of
subject matter jurisdiction pursuant to M. R. Civ. P. 12(b)(1), which, after full briefing by
2
Strable’s initial Complaint was filed on August 23, 2021.
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the parties, was denied by the District Court on May 24, 2022. Arby’s thereafter filed its
Answer to the First Amended Complaint on June 8, 2022.
¶8 Arby’s filed a motion for summary judgment on March 17, 2023, asserting no
enforceable contract existed between Strable and Arby’s as a matter of law. The parties
fully briefed the motion and neither requested oral argument. The District Court granted
Arby’s motion for summary judgment on all claims in its October 4, 2023 Order on
Defendant’s Motion for Summary Judgment. The court recognized the negotiations
between the parties were taking place during an ongoing HRB case and found the
contractual element of consent was not met because Arby’s “had not yet had affirmative
relief provisions imposed on them, and therefore could not consent to perform conditions
of which they had not yet been made aware.” Strable appeals.
STANDARD OF REVIEW
¶9 We review a district court’s grant or denial of summary judgment de novo, applying
the same criteria as M. R. Civ. P. 56. TCF Enters., Inc. v. Rames, Inc., 2024 MT 38, ¶ 14,
415 Mont. 306,
544 P.3d 206 (citing Hudson v. Irwin,
2018 MT 8, ¶ 12,
390 Mont. 138,
408 P.3d 1283). Summary judgment is only appropriate if there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter of law.
Hudson, ¶ 12.
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DISCUSSION
¶10 Whether the District Court erred by granting summary judgment to Arby’s after
determining no enforceable contract existed between the parties.
¶11 Strable asserts the District Court erred by granting summary judgment to Arby’s
because each element required to create a binding contract was present. Arby’s contends
the HRB’s affirmative relief provisions were essential elements of a settlement agreement
undertaken during the HRB conciliation process.
¶12 “Settlement agreements are contracts, and are subject to the provisions of contract
law.” Murphy v. Home Depot, 2012 MT 23, ¶ 8,
364 Mont. 27,
270 P.3d 72 (citing
Dambrowski v. Champion Int’l Corp.,
2003 MT 233, ¶ 9,
317 Mont. 218,
76 P.3d 1080).
All contracts must contain four essential elements: (1) identifiable parties capable of
contracting; (2) their consent; (3) a lawful object; and (4) consideration. Section 28-2-102,
MCA. A settlement agreement is binding if it is made by an unconditional offer and
accepted unconditionally. Murphy, ¶ 8 (citing Hetherington v. Ford Motor Co.,
257 Mont.
395, 399,
849 P.2d 1039, 1042 (1993)).
¶13 Here, the parties were negotiating a settlement agreement in the context of an
ongoing discrimination case pending before the HRB. In the case, the HRB had already
issued a reasonable cause finding, determining Arby’s had likely engaged in unlawful
discrimination against Strable, before the negotiations at issue here took place during the
conciliation process. See Admin. R. M. 24.8.301(1) (2008) (“Any voluntary resolution
agreed to after the Human Rights Bureau issues a reasonable cause finding is referred to as
a conciliation agreement.”). While in the conciliation process, any voluntary agreement
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reached by the parties is subject to the provisions of the voluntary resolution agreement
administrative rule, Admin. R. M. 24.8.301(2) (2008), and the HRB “may require
affirmative relief provisions to eliminate the discriminatory practice confirmed in the
informal investigation.” Admin. R. M. 24.8.301(3) (2008). The rule requires that any
“voluntary resolution agreement reached by the parties must be in writing, signed by the
parties, and approved by the Human Rights Bureau.” Admin. R. M. 24.8.301(5) (2008).
It additionally states:
The Human Rights Bureau may refuse to approve a voluntary resolution
agreement which does not resolve all allegations or remedies for all persons
or groups affected by the alleged discrimination. Alternatively, the Human
Rights Bureau may treat a voluntary resolution agreement which does not
resolve all allegations or remedies for all persons or groups affected by the
alleged discrimination as a withdrawal in accordance with ARM 24.8.401,
and may initiate the complaint as a commissioner complaint for further
proceedings.
Admin. R. M. 24.8.301(8) (2008).
¶14 On appeal, Strable frames the issue in terms of a single element being negotiated
between the parties—that she “would dismiss her discrimination action in exchange for
$25,000”—but neglects the important fact, recognized by the District Court, that the parties
were negotiating in the context of the HRB conciliation process. In accordance with that
process, the parties made a preliminary agreement on an essential term—Arby’s paying
Strable—but not all essential terms. The essential terms of any voluntary resolution
agreement entered into during the conciliation process involve those affirmative relief
provisions to eliminate discriminatory practices which “resolve all allegations or remedies
for all persons or groups affected by the alleged discrimination,” and the HRB may reject
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any agreement which does not satisfy the HRB’s objectives of equitable relief.
Admin. R. M. 24.8.301(3), (8) (2008). The parties were certainly cognizant of the
affirmative relief requirements imposed by the conciliation process during their
negotiations. Counsel for Arby’s noted their agreement was “subject to a mutually
agreeable settlement agreement,” and he understood Strable’s counsel would “reach out to
Ms. Beck,” the HRB conciliator. After reaching the “agreement in principle” regarding
Arby’s payment to Strable, Strable’s counsel wrote to Beck informing her that the parties
“want to be sure that any settlement agreement is mindful of—and resolves—the Bureau’s
own objectives for equitable relief” and sought to obtain language from the HRB “that
would resolve any outstanding agency issues[.]” In response, the parties received a draft
conciliation agreement which imposed various obligations on Arby’s. The parties never
signed this agreement and the HRB did not “inform the parties in writing that the
conciliation period [was] concluded,” Admin. R. M. 24.8.301(3) (2008), prior to Strable
voluntarily dismissing her claim on February 10, 2022.
¶15 “To form a binding contract, there must be mutual consent on all essential terms.”
Murphy, ¶ 8 (citing Kortum-Managhan v. Herbergers NBGL, 2009 MT 79, ¶ 18,
349 Mont.
475,
204 P.3d 693). “Consent is not mutual unless the parties all agree upon the same thing
in the same sense[.]” Murphy, ¶ 8 (quoting § 28-2-303, MCA). “[A] party is bound if he
or she unconditionally consented to the agreement.” Murphy, ¶ 8 (citing Lockhead v.
Weinstein,
2003 MT 360, ¶ 7,
319 Mont. 62,
81 P.3d 1284).
¶16 The District Court held the essential element of consent was lacking in this case.
We agree. “There must be mutual assent or a meeting of the minds on all essential terms
10
to form a binding contract.” Keesun Partners v. Ferdig Oil Co., 249 Mont. 331, 337,
816
P.2d 417, 421 (1991) (citing Chadwick v. Giberson,
190 Mont. 88, 92,
618 P.2d 1213, 1215
(1980)) (emphasis added). While Strable now asserts the only essential term to any
conciliation agreement was how much money Arby’s would pay her to dismiss her claim,
this argument is unpersuasive when applied to the conciliation process. At that point, after
the HRB issued its reasonable cause finding, Arby’s could not simply pay Strable to make
the complaint go away, because a conciliation agreement which did not address the HRB’s
equitable relief objectives could either be outright rejected by the HRB or treated as a
withdrawal and re-initiated as a commissioner complaint. Admin. R. M. 24.8.301(8)
(2008). A conciliation agreement would also need to be “in writing, signed by the parties,
and approved by the Human Rights Bureau.” Admin. R. M. 24.8.301(5) (2008).
¶17 The affirmative relief provisions were essential terms to any settlement agreement
under the circumstances at issue here and Arby’s was entirely unaware of what they may
be when reaching the “agreement in principle” regarding the payment term. So while
Strable was understandably more focused on what payment she would receive when
reaching a conciliation agreement, Arby’s also needed to understand what affirmative relief
provisions it would be agreeing to in said conciliation agreement before the parties could
“agree upon the same thing in the same sense[.]” Section 28-2-303, MCA. The record
does not reflect that the parties reached mutual agreement on all essential terms of the
conciliation agreement because “the parties did not agree on the same thing in the same
sense.” Murphy, ¶ 9. Accordingly, the District Court correctly found the essential
contractual element of consent was not met in this case and properly granted summary
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judgment in favor of Arby’s. In addition, because the essential elements of a contract were
not met, we need not address Strable’s arguments regarding conditions precedent to
contract formation.
CONCLUSION
¶18 The District Court correctly granted summary judgment to Arby’s because no
enforceable contract between the parties existed.
¶19 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
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