Appellate court upholds enforcing settlement agreement

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The Indiana Court of Appeals affirmed a Marion Superior judge’s decision to enforce a disputed settlement agreement, finding the parties agreed to the essential terms resolving the issues between them.

Debra Sands filed a complaint in Wisconsin against Menard Inc.; John Menard Jr., the founder and majority owner of the home-improvement chain Menard’s; and Indiana-based companies MH Equity and MH Equity Managing Member, seeking a portion of the assets accumulated while she lived with Menard. MH Equity Managing Member then filed a suit against Sands in Marion Superior Court alleging she breached a fiduciary duty by serving as the attorney for MH Equity and Managing Member and taking $170,000 for legal services when she wasn’t licensed to practice in Indiana.

The attorney for MH Equity and Managing Member, Steven Shockley, contacted Sands’ attorney, Daniel Shulman, and proposed the parties dismiss the claims in the Wisconsin and Indiana courts with prejudice. Shulman accepted the offer and also proposed drafting mutual releases. Shulman had another attorney draft a stipulation for dismissal and a mutual release on the Indiana case and asked Shockley to do the same for the Wisconsin case.

The draft stipulation from Sands’ counsel didn’t include a signature block for Menard or the other Menard defendants, which Shockley took issue with because he didn’t believe that complied with Wisconsin Rule 807.05. Sands’ counsel accepted Shockley’s changes to the stipulation, but didn’t believe that all parties had to execute the stipulation. The parties never signed a final agreement.  

Sands then filed a motion to enforce settlement in the Wisconsin suit and that court entered an order of enforcement. She then moved to enforce the settlement in the Indiana case, which the trial court also granted, noting the settlement agreement should be respected as a matter of comity here.   

Managing Member appealed, arguing that the Marion Superior Court improperly exercised comity. While the trial court purportedly found comity appropriate, it actually addressed the merits of the matter before it and held that an enforceable agreement had been reached, wrote Judge L. Mark Bailey in MH Equity Managing Member, LLC v. Debra K. Sands, No. 49A02-1005-CC-495. The Indiana court was enforcing the provision for dismissal of the claim pending in Indiana, which the Wisconsin court had expressly left for disposition here, he continued.

The appellate court also found that a contract had been formed, despite Managing Member’s claim that no contract was formed because the proposal for settlement by respective dismissals weren’t met with “mirror-image” acceptance but a counteroffer including an additional term.

The parties agreed to the essential terms resolving the issues between the parties – to dismiss with prejudice the claims in Wisconsin and Indiana courts. Even though the parties’ communications didn’t “mirror” each other and Sands’ attorney proposed a new term by proposing the execution of releases, Managing Member’s counsel readily agreed to the execution of the releases.

“Two trial courts have made the factual determination that Managing Member and Sands expressed assent to the material term of dismissal with prejudice of the Indiana action against Sands and the Wisconsin action against MH Equity,” wrote Judge Bailey. “The communications of the parties’ attorneys contemplated the execution of mutual releases; thus, they contemplated a subsequent document. However, there is no evidence that the release document would have modified any substantial term of the settlement agreement.”


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.