Appeals court hears dispute over contract interpretation, seals and estoppel in Gerhardt v. Burr

The appeals panel heard argument March 9 in Gerhardt and Severns v. Burr over whether the trial court erred on summary judgment by failing to credit evidence (affidavit and deposition testimony) that the defendant said showed plaintiffs agreed they would not receive future participation payments.

Richard Pedoni, for defendant-appellant Robert Burr, told the court the summary-judgment record includes Burr's affidavit and deposition testimony that "they acknowledged they would no longer receive distributions under the participation agreements," and he argued the trial judge did not properly treat that evidence in the light most favorable to Burr. Pedoni urged that evidence supports estoppel and waiver claims and that the judge's rulings on the contract and on remedy deserve reversal or remand.

David Rich, for the appellees, replied that the trial record does not support estoppel or waiver here, citing precedent that equitable estoppel will not substitute for a written contract or a promise of future conduct lacking consideration. He told the panel that acceptance of Burr's framing would allow parties to evade written-contract protections by oral statements at a lunch; he also argued that the trial court had sufficient grounds to rule as it did and that the plaintiff's late materials (a proposed errata sheet) did not alter the summary-judgment record.

Counsel debated a related statutory argument about whether a signature block on schedule documents fulfilled the "under seal" statutory requirement for certain instruments; Pedoni described that as an issue of first impression and urged a narrow statutory reading would be inappropriate. The panel also discussed damages, tax characterizations of distributions, and whether the case should be resolved in one appeal or held for further proceedings.

The court submitted the case for decision; no ruling was announced at argument.