Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Engen (12/05/2003) sp-5757

Williams v. Engen (12/05/2003) sp-5757

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


JOHN WILLIAMS,           )
                              )    Supreme Court No. S-10475
               Appellant,          )
                              )    Superior Court No.
          v.                  )    1JU-01-1375CI
                Appellees.          )    [No. 5757 - December  5,

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry C. Zervos, Judge.

          Appearances:  James  W. McGowan,  Sitka,  for
          Appellant.  Steven Lewis Hempel, Juneau,  for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


           Alaska  Civil Rule 27 gives a court limited powers  to

order production of evidence for a legal action that has not  yet

been  filed.   The  rule has usually been  read  to  allow  early

production  only to preserve existing evidence - not to  discover

whether  evidence exists.  John Williams believed that  he  might

have  a  claim for misrepresentation arising from a  real  estate

transaction  and  wanted evidence to confirm his  suspicions  and

identify the prospective defendant.  Relying on Rule 27, Williams

asked  for  an order compelling a mortgage company to  produce  a

report,   not   otherwise  available  to  him,   containing   the

information  he  needed.  The superior court  declined  to  order

production,  applying  the  conventional  meaning  of  Rule   27.

Williams  appeals,  urging  us to  read  the  rule  as   allowing

discovery  of  facts  needed to frame a complaint.   We  find  no

exceptional  circumstances  in  this  case  that  would   justify

expanding  the rule's usual limits, and thus affirm the  superior

court's decision.


          Roger and Carmen Engen bought a home from the Estate of

Vera  Lowe.   John Williams, a real estate agent associated  with

Re/Max of Juneau, represented the estate in the sale.  As part of

the transaction, the estate agreed to finance part of the Engens'

purchase with a nine-month, $180,000, interest-free note.

           Soon  after  the  Engens signed  the  agreement,  they

discovered  a  crack  in the home's foundation.   They  hired  an

engineer,  John  Cooper, who estimated that  repairs  would  cost

$125,000  to  $200,000.  Believing that this cost  would  prevent

them  from refinancing to pay off their $180,000 note, the Engens

notified  their attorney, who prepared a draft complaint alleging

misrepresentation  and failure to disclose required  information.

The draft complaint named as defendants the estate, Williams, and

two  partners  of  Williams  at Re/Max  of  Juneau.1   After  the

defendants  reviewed the Engens' proposed complaint, all  parties

agreed to mediate the dispute.

           At  the mediation, Williams and Re/Max made a combined

offer  to  settle their share of liability for $25,000.  Williams

was to pay $10,937.50 of this amount.   With this proposal on the

table  as their final settlement offer, Williams and Re/Max  left

the  mediation proceeding, saying that they did not care how  the

Engens and the estate resolved their dispute.  The estate and the

Engens proceeded to settle, agreeing that the original sale would

simply be rescinded, while the Engens would remain free to accept

the  $25,000  offer  from  Williams  and  Re/Max.   The  mediator

recorded  this oral agreement and adjourned proceedings  until  a

date  could  be set for all the parties to convene and  sign  the

final, written version.

           Almost immediately after reaching this agreement,  the

Engens began having second thoughts about giving up the home,  so

they  resolved to check for available  refinancing.   The  estate

evidently did not object to this change of heart.  Williams  soon

heard   that   the  Engens  had  applied  for  refinancing   from

Residential Mortgage.  He contacted the company, and one  of  its

employees  confirmed that the Engens had applied for refinancing,

supporting  their application with a letter from their  engineer,

Cooper.  The employee also said that Residential could  not  show

him  Cooper's letter until the refinancing closed.  Williams then

learned  from  his own attorney that Residential  had  agreed  to

refinance  the Engens' home because Cooper's letter  assured  the

company that the building was not in imminent danger and could be

repaired after the refinancing agreement closed.

           Nevertheless, two days after hearing this information,

Williams met with the other parties and signed a final settlement

agreement;  the  agreement changed the original settlement  terms

between  the  estate and Engens by leaving the home sale  intact,

but  it  expressly incorporated the $25,000 payment that Williams

and Re/Max had offered at the mediation.

            After  waiting  until  the  Engens  completed   their

refinancing  arrangements,  Williams asked  Residential  Mortgage

again  for  a copy of Cooper's letter.  Residential again  denied

his  request, stating that the Engens had instructed the  company

not   to  release  the  letter.   But  a  member  of  Residential

Financing's  staff evidently advised Williams  that  the  company

would not have approved the refinancing unless the foundation had

already  been  repaired.  Williams contacted the Engens  directly

and  asked  for  a copy of Cooper's letter, but they  refused  to

disclose it.

           Williams  then  petitioned the  superior  court  under

Alaska  Civil Rule 27, seeking to compel Residential Mortgage  to

produce  Cooper's  letter.  He alleged that  he  was  "unable  to

pursue a suit to secure relief for the monies paid to the Engens,

because I do not know who to sue, the Engens, [the] engineer  [],

or  some other person or entity."  Williams further alleged  that

"[p]erpetuation of the testimony will avoid a delay or failure of

justice which would result if I cannot determine against  whom  I

have a cause of action."

           The  Engens  opposed  the  petition,  contending  that

Williams's petition fell outside the scope of Rule 27 because  it

sought  discovery to determine if evidence existed to  support  a

cause of action rather than seeking to preserve known evidence of

an  already  existing  cause of action.2   Following  a  hearing,

Superior  Court Judge Larry C. Zervos denied Williams's petition,

ruling  that  our decision in McNett v. Alyeska Pipeline  Service

Co.3  supported  the  Engens' position and barred  Williams  from

using Rule 27 to collect evidence for a future claim.

          Williams appeals.


           Alaska  Civil Rule 27(a) allows a prospective litigant

"who  desires to perpetuate testimony" to petition the court  for

permission to take a deposition, inspect a document, or conduct a

medical  examination  before commencing  an  action.4   Paragraph

27(a)(1) of the rule requires the petition to show:

          (1) that the petitioner expects to be a party
          to  an action in a court of the state but  is
          presently unable to bring it or cause  it  to
          be  brought,  (2) the subject matter  of  the
          expected  action  and  petitioner's  interest
          therein,  (3) the facts which the  petitioner
          desires   to   establish  by   the   proposed
          testimony  and the reasons for desiring  [to]
          perpetuate  it, (4) the names or  description
          of the persons the petitioner expects will be
          adverse parties and their addresses so far as
          known, and (5) the names and addresses of the
          persons  to be examined and the substance  of
          the testimony which the petitioner expects to
          elicit from each . . . .[5]
Paragraph  27(a)(3)  allows the court to  order  the  deposition,

medical  examination, or document production  "if  the  court  is

satisfied  that the perpetuation of the testimony may  prevent  a

failure or delay of justice."6

           In  McNett v. Alyeska Pipeline Service Co.,7 we  noted

that  Alaska's Civil Rule 27 derives from Federal Rule  of  Civil

Procedure  27;  we  thus  observed that  cases  interpreting  the

federal  rule provide a "useful general framework of the  purpose

of [Alaska Civil] Rule 27."8  Rule 27's literal terms describe  a

method  for  a  litigant with an existing  claim,  or  facing  an

existing  claim,  "to perpetuate" evidence before  the  claim  is

filed.   In  keeping  with  the rule's literal  purpose,  federal

courts generally bar would-be litigants from using Rule 27  as  a

tool to discover new information.9  Courts and commentators alike

agree  that  the rule does not authorize searches for  causes  of

action,10 and McNett spoke approvingly of these authorities:

          Federal  cases have noted that Rule  27(a)  "
          `is  not  a  method of discovery to determine
          whether a cause of action exists; and, if so,
          against whom action should be instituted.'  "
          Instead,  the  Rule applies ["]to  situations
          where,  for one reason or another,  testimony
          might  be  lost  to  a  prospective  litigant
          unless  taken  immediately  .  .  .  .   Such
          testimony  would  thereby be  perpetuated  or
          kept in existence and, if necessary, would be
          available for use at some subsequent time.["]
          Both  federal and state courts have read Rule
          27(a) to restrict depositions that are merely
          searches  for a cause of action, rather  than
          an  effort  to preserve testimony  concerning
          facts   already   known  to   the   potential
          Here, Williams does not dispute that the superior court

correctly  applied  the  rule's mainstream  interpretation.   But

relying   on  Rule  27(a)(3)'s  language  allowing  court-ordered

production  to "prevent a failure or delay of justice,"  Williams

asks  us to broaden the rule's conventional reach.12  He proposes

"a fairly modest liberalization" that would "allow Mr. Williams -

or a similarly situated party - to avail himself of Rule 27 if he

can  convince a trial court that an impediment to his bringing  a

viable  cause of action can reasonably be expected to be  removed

through  .  .  . a Rule 27 proceeding."  In such cases,  Williams

reasons,  early  discovery  should be  granted  because  it  will

"prevent a failure or delay of justice."

           But  this argument mistakenly reads Rule 27's "failure

or  delay of justice" phrase out of context.  The phrase  appears

within  a  sentence  that  deals with perpetuating  evidence:  as

indicated  above,  Rule 27(a)(3) allows court-ordered  production

only  "if  the  court is satisfied that the perpetuation  of  the

testimony  may  prevent a failure or delay of  justice."13   This

singular  focus on perpetuating evidence strongly  suggests  that

courts should generally refrain from applying the rule unless the

petitioner demonstrates a need to prevent a failure or  delay  of

justice specifically arising from a risk of losing evidence.   In

other  words,  "  `The  reasons  for  perpetuating  the  proposed

testimony  must  demonstrate danger of  losing  the  evidence  by

delay.' "14

           Here, the superior court expressly found that Williams

had failed to show any danger that Cooper's letter might be lost.

The  superior court's finding is not clearly erroneous.   Indeed,

Williams  does not seriously question the finding.   Instead,  he

asks  us  to  hold that Alaska courts may consider factors  other

than  danger  of  destruction  or  loss  in  deciding  whether  a

petitioner  has proved a sufficient need to perpetuate  evidence.

Williams points out, for example, that the Advisory Committee for

the  Federal Rules of Civil Procedure approvingly cited  Hall  v.

Stout,  an  opinion declaring that "lapse of  time  [is]  a  risk

affecting  all evidence, irrespective of any particular condition

of  a  witness."15  But Hall's broad dictum addresses testimonial

evidence  and  translates  poorly when  directed  at  documentary

evidence,  because  the  passage of time  alone  generally  poses

little  risk that evidence like Cooper's letter will be  lost  or

destroyed.   And  as  the  superior court  properly  found  here,

Williams presented nothing to establish a case-specific  risk  of

destruction or loss.

           Williams cites several Rule 27 cases in which  federal

trial   courts  have  considered  factors  other  than  risk   of

destruction, such as the uniqueness of the information at issue16

and  whether it lies in the adverse party's exclusive  control.17

But  the cases cited by Williams generally consider factors  like

these  to  help  measure  the actual  need  for  perpetuation  of

evidence  when  a case-specific danger of loss or destruction  is

shown.  The cases do not suggest that these factors displace  the

need  to  establish some actual risk.  All but one of  the  cited

cases  involved  circumstances in  which  a  danger  of  loss  or

destruction  was apparent;18 and in sharp contrast to  Williams's

situation,  in  all  but one of the cited cases,  the  impediment

preventing  immediate commencement of an action was  external  to

the  petitioner's  need for the evidence.19   Notably,  the  sole

exception cited by Williams, In re Alpha Industries,20  has  been

roundly criticized and consistently rejected by other courts.21

           Williams  nonetheless points  out  that  Rule  27  was

drafted  under the assumption that notice pleading  would  govern

court  proceedings; he questions the accuracy of this assumption,

contending  that  today's  courts have largely  abandoned  notice

pleading and now require a high level of specificity.   According

to  Williams,  this  trend  in modern  pleading  practices  makes

limited  pre-filing discovery necessary to prevent a  failure  or

delay  of  justice.  Specifically, Williams complains, unless  he

obtains Cooper's letter he will not be able to comply with  Civil

Rule  9(b),  which requires complaints to plead the circumstances

constituting  a fraud with particularity,22 and he also  will  be

unable  to comply with Civil Rule 11, which requires an  attorney

filing  a  claim to certify, after conducting a diligent inquiry,

"that the complaint is well grounded in fact and is warranted  by

existing law." 23

           But these arguments are unpersuasive.  Civil Rule 9(b)

calls for specificity, not certainty.  The rule simply requires a

claim  of  fraud  to specify the time and place where  the  fraud

occurred;24 it seeks to prevent conclusory pleading by requiring a

complaint  to  do  more than "recit[e] without  specificity  that

fraud existed,"25 but it does not  prevent plaintiffs from filing

complaints   based   on   available   information   and   belief.

Furthermore, while some courts have mentioned Civil  Rule  11  in

ruling on motions to perpetuate evidence under Rule 27, they have

deemed  the  rule relevant only in circumstances suggesting  that

existing   evidence  might  be  lost  or  destroyed  before   the

petitioner  can  complete a diligent inquiry for  other  evidence

needed  to  frame a complaint.26  Williams cites no authority  or

holding  persuasively suggesting that Rule 27 can be used  as  he

proposes to use it - as a substitute for diligent inquiry or as a

tool to be used when diligent inquiry yields inadequate evidence.27

           Williams  also  urges us to find his case  exceptional

because  it  "falls squarely into the pattern" described  by  the

Ninth Circuit in Martin.28  But Martin itself is an unexceptional

case - except in a narrow sense that has no relevance here.   The

court   in  Martin  allowed  pre-filing  disclosure  of  evidence

unavailable to a potential defendant who lacked control over  the

timing  of  the  plaintiff's  claim  but  established  that   the

plaintiff appeared to be destroying the evidence.29  Martin  thus

applies  uniquely to defendants who lack control over filing  and

face destruction of evidence by their opponents.30  The case  has

no  bearing on the present case, where Williams is the  potential

plaintiff and has failed to demonstrate any appreciable  risk  of

destruction or loss.

           In  summary, then, assuming that Rule 27(a) might vest

trial  courts with discretion in exceptional cases to  go  beyond

the  rule's  traditional goal of  preserving known  evidence,  we

find here that Williams failed to establish any convincing reason

to  treat  his  case as exceptional.  We thus conclude  that  the

superior court properly denied his petition.


          We AFFIRM the superior court's order denying Williams's

Rule 27 petition.31

1For  simplicity, we will refer to Williams's partners and Re/Max
of Juneau  collectively as Re/Max.
2Alternatively, the Engens argued that Williams waived his  right
to  pursue  a  future cause of action by signing  the  settlement
agreement, which expressly released the Engens from liability for
any   matters  arising  from  the  dispute  over  their  purchase
agreement.  The superior court did not decide this issue.
3856 P.2d 1165 (Alaska 1993).
4Alaska R. Civ. P. 27(a)(1).
5Alaska R. Civ. P. 27(a)(1).
6Alaska R. Civ. P. 27(a)(3).  See also Martin v. Reynolds  Metals
Corp.,  297 F.2d 49, 55-56 (9th Cir. 1961) ("a party  may,  in  a
proper  case,  proceed under Rule 27 for an order under  Rule  34
without taking a deposition at all").
7856 P.2d 1165 (Alaska 1993).
8Id. at 1168.
9See,  e.g., Nevada v. O'Leary, 63 F.3d 932, 936 (9th Cir. 1995);
Penn  Mut.  Life  Ins. Co. v. United States, 68 F.3d  1371,  1376
(D.C.  Cir.  1995)  (because Rule 27  is  not  a  substitute  for
discovery,  petitioner  "must  set  forth  in  some  detail   the
substance of the testimony it needs to preserve"); Ash  v.  Cort,
512  F.2d  909, 912 (3d Cir. 1975) ("Rule 27 is not a  substitute
for discovery.").  Cf. Martin, 297 F.2d at 55 (putative defendant
who  makes  showing  that  prospective  plaintiff  is  destroying
evidence may conduct limited discovery under Rule 27); In re Town
of  Amenia,  200  F.R.D.  200, 203 (S.D.N.Y.  2001)  (prospective
parties  to  cost-recovery suit under Comprehensive Environmental
Response,   Compensation,   and  Liability   Act   may   discover
information in the course of perpetuating testimony in danger  of
loss);  In re Delta Quarries & Disposal, Inc., 139 F.R.D. 68,  69
(M.D.  Pa. 1991) (same).  But see In re Alpha Indus., 159  F.R.D.
456,  456-57  (S.D.N.Y. 1995) (allowing pre-filing  discovery  to
"prevent  failure  or  delay  of justice"  where  Rule  11  would
otherwise  prevent  company  from determining  whom  to  name  as
10See, e.g., Ash, 512 F.2d at 909; 8 Charles Alan Wright & Arthur
R.  Miller,  Federal Practice and Procedure  2071 (2d  ed.  1994)
("the  courts have generally agreed that to allow Rule 27  to  be
used  for [discovery of facts needed to frame a complaint]  would
be an `abuse of the rule' ") (quoting Martin, 297 F.2d at 55);  6
James  Wm. Moore et al., Moore's Federal Practice  27.03 (3d  ed.
1999) ("Rule 27 may not be used to search for possible claims, or
to  search  for possible defendants.  Nor should it  be  used  to
gather facts for use in framing a complaint."); see also Sandmann
v.  Petron, 404 N.W.2d 800, 802 (Minn. 1987) (plaintiff  may  not
use  Rule  27  to discover facts on which to base expert  opinion
required for complaint under medical malpractice statute); Harmon
v.  Mercy  Hosp., 460 N.W.2d 404, 407 (N.D. 1990) (party  seeking
pre-filing   discovery  of  facts  needed  to   frame   complaint
"misperceived the purpose of Rule 27").
11McNett, 856 P.2d at 1168 (internal citations omitted).
12McNett did not squarely address this issue.  While noting  that
the  meaning of the rule's "failure or delay of justice" language
had  been  raised before the trial court to support "a  need  for
court  flexibility," we expressly observed that this  ground  had
not  been  briefed on appeal.  Id. at 1167 n.1.  And in  deciding
McNett's  claim, we simply concluded that, on the  record  before
it,  the  superior court could reasonably conclude that  McNett's
petition had failed to show that relief was necessary to  prevent
a failure or delay of justice.  Id. at 1169.
13Alaska R. Civ. P. 27(a)(3) (emphasis added).
14In  re  Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997)  (quoting  4
James  Wm.  Moore et al., Moore's Federal Practice   27  (3d  ed.
15Hall v. Stout, 4 Del. Ch. 269, 1871 WL 2089, *3 (Del. Ch. 1871);
see  also Mosseller v. United States, 158 F.2d 380, 382 (2d  Cir.
1946)  (district  court  could have  allowed  deposition  without
showing  of  deponent's ill health) (citing Hall, 4 Del.  Ch.  at
274).   But  see  Penn  Mut. Life Ins. Co., 68  F.3d  at  1373-74
(general allegation that passage of time might impair prospective
deponent's  ability  to recall events not sufficient  showing  of
danger  to  evidence); Lombard's, Inc. v. Prince Mfg., Inc.,  753
F.2d   974,  976  (11th  Cir.  1985)  (general  allegation   that
prospective witnesses were "not immune from the uncertainties  of
life  and  death" not enough to show danger of losing  evidence);
Ash, 512 F.2d at 913 (conclusory statement of proposed deponents'
advanced ages does not satisfy rule's requirement to show need to
perpetuate testimony).
16See In re Bay County Middlegrounds Landfill Site, 171 F.3d 1044,
1047  (6th Cir. 1999); Penn Mut. Life Ins. Co., 68 F.3d at  1375;
Tennison v. Henry, 203 F.R.D. 435, 441 (N.D. Cal. 2001).
17See Reints v. Sheppard, 90 F.R.D. 346, 347 (M.D. Pa. 1981).
18See  In re Bay County, 171 F.3d at 1046 (only issues on  appeal
are  whether  petitioner adequately showed  facts  it  sought  to
establish  or  substance of testimony it sought to elicit);  Penn
Mut.  Life Ins. Co., 68 F.3d at 1375 (district court should  have
considered  witness's advanced age in deciding  whether  evidence
was in danger of being lost); Tennison, 203 F.R.D. at 442-43 (age
of witnesses and long passage of time demonstrate risk of loss of
evidence);  In  re Town of Amenia, 200 F.R.D. at 202  (petitioner
made  showing  of  witness's age and ill  health);  In  re  Delta
Quarries,  139 F.R.D. at 70 (petitioner made showing of witness's
serious illness).
19See In re Bay County, 171 F.3d at 1047 (potential defendant  to
CERCLA   lawsuit  sought  to  preserve  testimony   about   other
potentially responsible party); Penn Mut. Life Ins. Co., 68  F.3d
at  1374  (petitioners could not yet bring suit because they  had
not  exhausted  their administrative remedies);  In  re  Town  of
Amenia,  200 F.R.D. at 203 (potential CERCLA defendant sought  to
preserve  testimony);  In re Delta Quarries,  139  F.R.D.  at  69

20 159 F.R.D. at 456.
21See, e.g., In re Ford, 170 F.R.D. at 508-09; In re Sitter,  167
F.R.D.  80,  82  (D.  Minn.  1996).   Moreover,  in  contrast  to
Williams's   situation,  In  re  Alpha   arguably   did   involve
exceptionally  compelling  circumstances  for  early   discovery.
Although  no imminent loss of evidence was shown in the  case,  a
valid  claim  for  economic  harm  unquestionably  existed;   the
petitioner  simply lacked information to identify the responsible
party,  and, in the absence of pre-filing discovery, it  appeared
that  this  inability  to  identify the correct  defendant  would
expose  the petitioner to significant, ongoing economic  damages.
See In re Alpha, 159 F.R.D. at 457.
22Alaska Civil Rule 9(b) provides:

          In  all  averments of fraud or  mistake,  the
          circumstances constituting fraud  or  mistake
          shall  be stated with particularity.  Malice,
          intent,  knowledge,  and other  condition  of
          mind of a person may be averred generally.
23Alaska Civil Rule 11 provides, in relevant part:

          The   signature  of  an  attorney  or   party
          constitutes a certificate by the signer  that
          the signer has read the pleading, motion,  or
          other paper; that to the best of the signer's
          knowledge,  information,  and  belief  formed
          after  reasonable inquiry it is well grounded
          in fact and is warranted by existing law or a
          good   faith   argument  for  the  extension,
          modification,  or reversal of  existing  law,
          and   that  it  is  not  interposed  for  any
          improper  purpose, such as to  harass  or  to
          cause  unnecessary delay or needless  expense
          in the cost of litigation.
(Emphasis added.)

24Law Offices of Vincent Vitale, P.C. v. Tabbytite, 942 P.2d 1141,
1147 (Alaska 1997).
26See, e.g., In re Town of Amenia, 200 F.R.D. at 203 (allowing pre-
filing discovery upon showing of proposed deponent's age and poor
health); In re Delta Quarries & Disposal, Inc., 139 F.R.D. at  69
(allowing  pre-filing discovery upon showing of ailing health  of
proposed deponent whose testimony might be lost while prospective
plaintiff conducted a separate essential inquiry).
27Williams relies primarily on In re Alpha Industries, 159 F.R.D.
at  456.   As already noted, Alpha has been persuasively rejected
by  other  courts.  Moreover, unlike Williams,  the  claimant  in
Alpha  had  unquestionably established the existence of  a  valid
claim  and  was  stymied  only  in  attempting  to  identify  the
potential defendant.
28297 F.2d at 49.
29O'Leary, 63 F.3d at 936.
30See  O'Leary, 63 F.3d at 936 (noting a significant "distinction
between  Rule 27's invocation by a prospective defendant,  as  in
Martin,  and  a  prospective plaintiff  or  other  applicant  for
judicial  relief, as in this case," and quoting Martin's  comment
that  it  would  be  an  "[a]buse  of  the  rule"  for  potential
plaintiffs to use Rule 27 "as a means of discovery to enable them
to draw a complaint").
31Our disposition of the case makes it unnecessary to address the
Engens'  alternative argument that Williams waived his  right  to
sue by signing the settlement agreement.