ILNews

Appellate court upholds enforcing settlement agreement

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

ADVERTISEMENT