Wash. Court of Appeals published opinion — 387844_pub.pdf

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I note that paragraph 3 is only one of fourteen paragraphs in a three-page

agreement. Courts are less apt to strike the entire agreement when only one paragraph is

void.

This court lacks any evidence of the discussions leading to the settlement

agreement. WSU may have inserted the paragraph in the agreement at the last minute

without having earlier demanded the clause. A defending party may not later add terms

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No. 38784-4-III
Elgiadi v. Washington State University

to the settlement agreement not negotiated by the time the parties reached an agreement

for a sum to dismiss the suit. Condon v. Condon, 177 Wn.2d 150, 298 P.3d 86 (2013).

Because the court lacks testimony about any discussions leading to paragraph 3

and because the parties did not litigate below the question of severability, I would remand

to the superior court for further proceedings to determine whether to invalidate the entire

agreement or strike only paragraph 3. On remand, I would permit Saleh Elgiadi to

contend, among other arguments, that the superior court should not invalidate the entire

agreement because WSU seeks to benefit from retaliatory action and because WSU

should have known not to insert the provision in the settlement agreement. I would also

allow Elgiadi to argue that WSU’s seeking to void the entire agreement on the basis of

the unlawful no-reapply clause constitutes another form of retaliation in violation of

RCW 49.60.210(1).

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Fearing, J.