Gerow v. Falcone, No. CV-23-01059-PHX-DGC (2026)

Case details
Full caption
D. Arizona. Eric GEROW v. Anthony FALCONE
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
2026
Majority
David G. Campbell (J.) (unanimous Court)
Gerow v. Falcone, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 482365Only the Westlaw citation is currently available.United States District Court, D. Arizona.Eric GEROW, Plaintiff,v.Anthony FALCONE; Tom Blackwell; BlackwellAutomotive Inc.; and Ray Lata, Defendants.No. CV-23-01059-PHX-DGC|Signed February 20, 2026Attorneys and Law FirmsEric Gerow, Holiday, FL, Pro Se.Joseph Michael Winters, Timothy Daniel Ducar, Law Officesof Timothy D. Ducar PLC, Scottsdale, AZ, for DefendantsTom Blackwell, Blackwell Automotive Inc.ORDERDavid G. Campbell, Senior United States District Judge*1 Plaintiff Eric Gerow has sued a number of defendants inthis case, including Defendants Tom Blackwell and BlackwellAutomotive Inc. (“Blackwell Defendants”). The BlackwellDefendants claim that Plaintiff agreed to settle this case andentered into a binding settlement agreement with them. Theyhave filed a motion to enforce the agreement. Doc. 209.Plaintiff has filed a response (Doc. 210) and the BlackwellDefendants have replied (Doc. 211).Plaintiff has also filed a motion for oral argument (Doc. 212)which the Court will deny. The Court concludes that oralargument will not aid its decision. See Fed. R. Civ. P. 78(b);Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).I. Relevant Law.In Arizona, “[f]or an enforceable contract to exist, theremust be an offer, an acceptance, consideration, and sufficientspecification of terms so that the obligations involved canbe ascertained.” Rogus v. Lords, 804 P.2d 133, 135 (Ariz.Ct. App. 1991).1For a binding contract to exist, it is notnecessary that every minor element of the contract be agreedupon. “[T]he actions of the parties may show conclusivelythat they have intended to conclude a binding agreement,even though one or more terms are missing or are left to beagreed upon. In such cases courts endeavor, if possible, toattach a sufficiently definite meaning to the bargain.” Schadev. Diethrich, 760 P.2d 1050, 1058 (Ariz. 1988) (quotingRestatement of Contracts § 33(3)). Further, “[t]he fact that oneof the parties, with knowledge and approval of the other, hasbegun performance is nearly always evidence that they regardthe contract as consummated and intend to be bound thereby.”Id. at 1059 (citation modified).II. Relevant Facts.Plaintiff and the Blackwell Defendants engaged in settlementdiscussions. On October 14, 2025, Plaintiff sent the followingemail to counsel for the Blackwell Defendants. The mostrelevant language is italicized.Mr. Kelly and Mr. Winters,Thank you for your messages. Based on the email trafficand telephone conversations today, Plaintiff summarizes thefollowing settlement deal:1. Defendant Tom Blackwell agrees to pay Plaintiff the sumof $50,000 payable within 45 days2. Defendant Tom Blackwell agrees to provide information inhis possession about the sale of Plaintiff's vehicle3. Defendant Tom Blackwell agrees to have his depositiontaken in the event that the settlement breaks down and the casecontinues4. In exchange for the above, Defendant Tom Blackwellreceives from Plaintiff a release of all claims and a dismissalwith prejudice* * *6. All parties agree to operate in good faith within the plainlanguage meaning of this agreement and work expeditiouslyto execute the settlement agreement and bring the case to aconclusion.Plaintiff agrees to the settlement.If any party objects or has a different view, please say so now.Otherwise the parties are in agreement.
Gerow v. Falcone, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2If the parties are in agreement, the deposition for bothDefendant Falcone and Defendant Tom Blackwell will becancelled.*2 Respectfully,Eric GerowDoc. 209-1 at 4-5 (emphasis added).2Counsel for the Blackwell Defendants responded later thatday, asking Plaintiff to clarify that the agreement “shouldinclude a release and dismissal with prejudice of TomBlackwell and Blackwell Automotive Inc.” Id. at 3. Plaintiffreplied: “The release and dismissal includes DefendantTom Blackwell and Defendant Blackwell Automotive Inc.”Id. at 3. Counsel for Defendants then wrote: “Soundsgood. Please confirm cancellation of depositions.” Id at 2.Plaintiff replied: “Based on the settlement agreement, thedepositions of Defendant Tom Blackwell and DefendantBlackwell Automotive Inc. scheduled for October 15 havebeen cancelled.” Id. (emphasis added).III. Discussion.This exchange of emails clearly constitutes the formationof a contract. Plaintiff made an offer in his initial email toDefendants and, after clarifying that the release would includeall the Blackwell Defendants, the Blackwell Defendantsaccepted the offer. There was clear consideration for thecontract: a payment of $50,000 by one side and cancellationof the depositions, release of all claims, and dismissal withprejudice by the other. And the emails included “sufficientspecifications of terms so that the obligations involved can beascertained.” Rogus, 804 P. 3d at 135.The parties also clearly “manifested assent or intent to bebound.” Id. Defendants confirmed this fact in their email,and Plaintiff described the terms as a “settlement deal.” Doc.209-1 at 4. Plaintiff also specifically said he “agrees to thesettlement.” Id. at 5. He further stated that if Defendantsdid not object, then “the parties are in agreement.” Id.The Blackwell Defendants did not object; they responded:“Sounds good. Please confirm cancellation of depositions.”Id. at 2. In response, Plaintiff cancelled the depositions“[b]ased on the settlement agreement.”Id. Thus, both partiesclearly manifested an assent to the agreement.In addition, as noted above, the fact that the parties beganperformance “is nearly always evidence that they regardthe contract as consummated and intend to be bound by.”Schade, 760 P.2d at 1059 (citation omitted). In this case,performance of the agreement was begun when Plaintiffcancelled the depositions scheduled for the next day – one ofthe terms of the contract. While the parties had not reduced theagreement to a final writing, the Arizona Supreme Court hasexplained that “the parties may show conclusively that theyhad intended to conclude a binding agreement, even thoughone or more terms are missing or are left to be agreed upon.”Id. at 1058 (citation omitted).The Court concludes that Plaintiff and the BlackwellDefendants entered into a binding settlement agreement. Thefact that the agreement was not reduced to a final writing doesnot change the fact that there was an offer, an acceptance,consideration, and sufficient specification of terms so that theobligations involved can be ascertained. Rogus, 804 P.2d at135. Under Arizona law, this is a binding contract. Id.*3 Plaintiff argues the Blackwell Defendants’ effort toenforce the settlement agreement violates Federal Rule ofEvidence 408. That rule prohibits the presentation of evidenceof settlement discussions for the purpose of proving ordisproving the validity or amount of a disputed claim in thelitigation or to impeach by a prior inconsistent statementor contradiction. Fed. R. Evid. 408(a). Defendants have notpresented evidence for any of these purposes. Rather, theyhave presented evidence to prove the existence of a bindingsettlement agreement. That purpose does not violate Rule408. See Westside Winery, Inc. v. SMT Acquisitions, LLC,No. 2:19-cv-4371 (JMA) (SIL), 2022 WL 4329735, at *7-8(E.D.N.Y. Sept. 19, 2022).Plaintiff further argues that a statement of agreement is notbinding if the parties contemplated that their agreement wouldbe reduced to writing and that they would not be bound untilthat happened. Doc. 210 at 4.3 The parties in this case didnot state that their agreement would not be binding until itwas reduced to writing. To the contrary, Plaintiff specificallystated, in several different ways, that the parties had anagreement. And the contract was partially performed whenthe depositions were cancelled.Plaintiff argues that additional terms were necessary for theagreement, such as a provision that the contract would notbe set aside if the Blackwell Defendants declared bankruptcy.But Plaintiff did not insist on this term or include it in thematerial terms he outlined in his email describing the parties’
Gerow v. Falcone, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3“settlement deal.” The fact that he thought of it later does notchange the contract reached through the email exchange.Plaintiff also later sought to increase the settlement amount to$55,000, but that is not the amount the parties agreed upon.The email exchange quoted above reflects a clear meeting ofthe minds on a $50,000 settlement amount.Plaintiff further argues that the parties went through severaldifferent drafts of a settlement agreement and ultimatelywere unable to finalize the contract. As explained above,however, the parties’ email exchange satisfied each Arizonarequirement for the formation of a contract. The fact thatthey later were unable to arrive at a formal version of theagreement when Plaintiff sought to insert the bankruptcy termand increase the settlement amount does not change the factthat a contract came into existence on October 14, 2025,through the communications quoted above.IV. Conclusion. The Court finds that a binding settlementagreement has been reached in this case.In that agreement, Plaintiff agreed to dismiss his claimsagainst the Blackwell Defendants with prejudice in exchangefor $50,000 and Defendants’ agreement to provide him withinformation about the sale of his vehicle. The Court willenforce this contract as requested by Defendants.IT IS ORDERED:1. Defendants’ motion to enforce the settlement agreement(Doc. 209) is granted.2. Within 45 days of this order, the Blackwell Defendantsshall tender to Plaintiff the amount of $50,000. Upon doing so,Defendants shall file a notice with the Court that this amounthas been tendered. Upon receiving Defendants’ notice oftender, Plaintiff will be deemed to have released all claimsagainst the Blackwell Defendants and the Court will dismissPlaintiff's claims against the Blackwell Defendants withprejudice.4*4 3. The Blackwell Defendants’ request for attorneys’ feesis denied.4. Plaintiff's motion for oral argument (Doc. 212) is denied.5. The Court will rule on Plaintiff's pending motion for adefault judgment against another defendant (Doc. 206) byseparate order.All CitationsSlip Copy, 2026 WL 482365Footnotes1Plaintiff argues Arizona law governs this decision. See Doc. 210 at 3. The Court agrees.2The fifth paragraph omitted from this quotation referred to Defendant Anthony Falcone who has since beendismissed from this case by stipulation. Docs. 202, 203.3Plaintiff cites AROK Construction Co. v. Shipley, 235 Ariz. 163, 166, 329 P.3d 1051, 1054 (Ct. App. 2014), forthis proposition, but this case does not exist at the citation he provides, nor can the Court find the languagehe quotes in any Arizona case involving AROK Construction. Even if his statement of the law is correct,however, his argument fails.4The Court need not enforce the term requiring the Blackwell Defendants to provide information about thesale of Plaintiff's vehicle. Plaintiff states this issue is moot because he has located the vehicle on his own.Doc. 210 at 12.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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