Kocinski v. Home Insurance Co.

433 N.W.2d 654, 147 Wis. 2d 728, 1988 Wisc. App. LEXIS 1004

• Court: Court of Appeals of Wisconsin
• Decided: November 29, 1988
• Docket: 87-1640
• Status: Published

Opinions

FINE, J.

Alice H. Kocinski appeals pro se from the trial court’s order of July 17,1987, which enforced a settlement agreement between her and the defendants Home Insurance Company, Robert S. Ondrejka, and the City of Milwaukee. There are three issues. First, whether a letter memorializing the settlement sent by Kocinski’s attorney satisfies Rule 807.05, Stats., even though it was not personally signed by him. Second, whether subjecting the settlement to final approval by the Milwaukee Common Council permitted Kocinski to reject the settlement prior to the Common Council’s approval. Third, whether there is "newly discovered evidence,” as that term is defined by Rule 805.15(3), Stats., warranting relief from the settlement under Rule 806.07(l)(b), Stats. For the reasons discussed below, we conclude that the letter satisfied Rule 807.05 and that the trial court did not abuse its discretion in determining that relief under Rule 806.07(1) was not warranted. However, because we cannot determine from the record whether Kocin-ski was bound by the settlement prior to the Common Council’s approval, we reverse on that issue and remand for further proceedings.

I-H

This matter has its genesis in a September 3,1982 boating accident on the Milwaukee River. Kocinski was a passenger on a boat operated by Ondrejka when it collided with a barge owned by the city. She sued Ondrejka, his insurance carrier, and the city for damages she allegedly sustained as a result of the collision. Following extensive discovery, Kocinski’s attorneys worked out a settlement with the defendants. As her original attorney testified at a hearing before the trial court, Kocinski had orally agreed to the settlement during the course of two telephone conversations. The settlement was memorialized in an April 13, 1987 letter sent by Kocinski’s lawyer to her and to counsel for the defendants. It recited, in material part:

Gentlemen and Ms. Kocinski:

This is to confirm our telephone conversations of Friday, April 10th, wherein it was agreed that this matter is settled for a total payment to Alice Kocinski of $260,000.

It is my understanding that this is a full and final settlement of all of the claims of Alice Kocinski against all of the defendants in the case.

It is my understanding that the City of Milwaukee will pay a total of $170,750. It is further my understanding that [Home Insurance and Qndrej-ka] will pay a total of $89,750. Upon receipt of this money from the parties, Alice Kocinski will execute the required Releases.

Although I understand that [the deputy city attorney] must proceed through the Common Council for final approval of this payment, it is my understanding that this step will be accomplished as quickly as possible by [him].

If any of you have any disagreement with any part of this letter, please contact me immediately.

The next day the lawyer sent a letter correcting a minor error: Home Insurance was to pay $89,250 and the city was to pay $170,750; the total settlement figure of $260,000 remained the same. There was no dispute before the trial court that these letters accurately reflected the settlement agreement. They bore, however, the lawyer’s rubber stamped — not handwritten — signature.

Shortly after receipt of the April 13 and April 14 letters, Kocinski changed her mind. On April 22,1987, the senior partner of the law firm representing Kocinski sent the following letter to the judge then assigned to the case:

We attempted to settle this case and, with client’s approval, accepted a settlement offer of $260,000.00. It included a cut in attorneys’ fees and a cut in the Milwaukee County lien.

The client, who in the past has suffered from mental disability and who is on a disability payment because of that, has been improperly influenced by a close friend of hers and as a result has decided that she does not want the settlement. She has attempted to hire other counsel in town who, after hearing the facts, refused to substitute for me.

It is our intention at the scheduling conference on April 28th at 1:00 p.m. to try to elicit your help in convincing the client that it is in her best interest to accept this settlement and, lacking that, we will withdraw as counsel and ask the Court to allow the client time to try to obtain another attorney. However, I think it is in the best interest of the client that she accept the settlement. I hope that we will be successful in convincing her at that time.

The docket entries of proceedings before the trial court reveal that status conferences "re: settlement” were held on April 28 and May 4, 1987. On this latter date, Kocinski filed with the trial court a handwritten offer to settle the case for a net gain to her of $20,000 over the settlement to which she had previously agreed. On May 20 and 27, 1987, the defendants filed motions to enforce the settlement memorialized by the April 13 and 14 letters. On July 28, 1987, eleven days after the trial court entered its order enforcing the settlement, the Common Council approved the city’s payment of its share.

II.

Rule 807.05, Stats., provides:

Stipulations. No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court and entered in the minutes or recorded by the reporter or made in writing and subscribed by the party to be bound thereby or the party's attorney.

Since the parties stipulated at the hearing before the trial court that Kocinski's attorney ~authorized his signature to be stamped on the letter," we must determine whether that stamped signature satisfies the requirement that the letter be ~subscribed."

Rule 807.05, Stats., whose language is substantially similar to sec. 241.02(1),¹ Stats., is ~in the nature of a statute of frauds." Adelmeyer v. Wisconsin Elec. Power Co., 135 Wis. 2d 367, 369, 400 N.W.2d 473, 473 (Ct. App. 1986). Like the statute of frauds, it is designed to avoid the difficulties inherent in oral agreements. See id. at 372, 400 N.W.2d at 475. As explained by the American Law Institute:

The primary purpose of the Statute [of Frauds] is evidentiary, to require reliable evidence of the existence and terms of the contract and to prevent enforcement through fraud or perjury of contracts never in fact made.

Restatement (Second) of Contracts sec. 131 comment c (1981). Rule 807.05 serves the same purpose. The requirement in Rule 807.05 that the writing be "subscribed” should be construed in the same way as the similar requirement in the statute of frauds:

The traditional form of signature is of course the name of the signer, handwritten in ink. But initials, thumbprint or an arbitrary code sign may also be used; and the signature may be written in pencil, typed, printed, made with a rubber stamp, or impressed into the paper.

Restatement (Second) Contracts sec. 134 comment a. See also Williston on Contracts sec. 585 at 160-61 (3d ed. 1961).

The rule recognized by the Restatement is consistent with Wisconsin law. Garton Toy Co. v. Buswell Lumber and Mfg. Co., 150 Wis. 341, 348, 136 N.W. 147, 150 (1912) (typewritten subscription valid under statute of frauds) (alternate holding); Finlay v. Prescott, 104 Wis. 614, 617, 80 N.W. 930, 931 (1899) ("Except as controlled by statute, a mark made for one’s signature is good whether he can write or not —”); Mezchen v. More, 54 Wis. 214, 11 N.W. 534 (1882) (printed name on summons complies with statute requiring summons to be "subscribed”). See also McAbee v. Gerarden, 187 Wis. 399, 403, 204 N.W. 484, 485 (1925) (authorized writing of party’s name by another in party’s presence as valid as party’s own signature); Scott v. Seaver, 52 Wis. 175, 183, 8 N.W. 811, 813 (1881) (authorized writing of a party’s name by another as valid as party’s own signature); Town of Medary v. City of La Crosse, 88 Wis. 2d 101, 107-10, 277 N.W.2d 310, 313-14 (Ct. App. 1979) (writing of property owner’s name on annexation petition pursuant to a valid power of attorney satisfies statute requiring petition be "signed”).

Kocinski argues that sec. 990.01(38), Stats., supports her contention that the word "subscription” in Rule 807.05, Stats., requires that the name be personally written. Sec. 990.01(38) provides:

Signature. If the signature of any person is required by law it shall always be the handwriting of such person or if he is unable to write, his mark or his name written by some person at his request and in his presence.

This subsection, however, applies only where the statute under consideration requires a "signature.” Mezchen, 54 Wis. at 217, 11 N.W. at 535; Scott, 52 Wis. at 183, 8 N.W. at 813. Whatever application it might have under that circumstance,² it does not apply here. The letters of April 13 and 14,1987 were "subscribed” by Kocinski’s attorney and memorialized a settlement to which she had agreed. They comply with Rule 807.05, Stats.

HH

The next issue for consideration concerns the parties’ understanding, as recited in the settlement, that the assistant city attorney representing Milwaukee "must proceed through the Common Council for final approval of [the city’s payment of its portion of the settlement and] that this step will be accomplished as quickly as possible” by him. The question is whether this permits Kocinski to withdraw from the agreement prior to that "final approval,” which, as we have seen, came on July 28,1987. As discussed below, a contract that is not illusory and is subject to a condition is not enforceable until that condition has been fulfilled. Thus, the trial court’s July 17, 1987 order enforcing the settlement was, at the very least, premature because the Common Council had not yet approved it. Since we have determined that this case must be sent back to the trial court for findings on the nature of the settlement agreement, we must analyze the legal issues upon which the enforceability of that agreement depends.³

The Supreme Court has indicated that although settlement agreements under the aegis of Rule 807.05, Stats., "have occasionally been referred to as contracts, they are not governed by contract law” and may be set aside, in the court’s discretion, for any of the reasons specified in Rule 806.07(1), Stats. Burmeister v. Vondrachek, 86 Wis. 2d 650, 664, 273 N.W.2d 242, 248 (1979). Apart from the ameliorating provisions of Rule 806.07, however, certain stipulations under Rule 807.05 "are entitled to all the sanctity of an ordinary contract.” Thayer v. Federal Life Ins. Co., 217 Wis. 282, 285, 258 N.W. 849, 850 (1935). Principles of contract law may thus illumine our inquiry.

A contract subject to a condition is not void "but [the condition] only delays the enforceability of the contract until the condition” has been satisfied. Locke v. Bort, 10 Wis. 2d 585, 588, 103 N.W.2d 555, 558 (1960).⁴ As explained by Williston:

The fact that no duty of performance on either side can arise until the happening of a condition does not, however, make the validity of the contract depend upon its happening. Whether there is a contract depends upon the right of the respective parties to enforce it in spite of an attempt by the other to revoke his promise. [Footnote omitted.]

Williston sec. 666 at 141.

There is a distinction (often blurred) between a condition under a contract (where, though there is a binding contract, performance is delayed until the condition is satisfied) and a condition to the making of a contract (where there is no contract until the condition is satisfied). See Williston sec. 666A at 141-43. As explained by Oliver Wendell Holmes, Jr., more than a century ago:

If a condition is attached to the contract’s coming into being, there is as yet no contract. Either party may withdraw, at will, until the condition is determined.

O. W. Holmes, Jr., The Common Law 315 (1881).

An example of a condition under a contract is the "subject to financing” clause commonly found in the type of real estate contract discussed in Locke. See Restatement (Second) Contracts sec. 225 comment d, illustration 8. For an example of a condition to the making of a contract see Parkview Gen. Hosp., Inc. v. Eppes, 447 S.W.2d 487, 490-91 (Tex. Civ. App. 1969): "Where the parties to the proposed contract have agreed that the contract is not to be effective or binding until certain conditions are performed or occur, no binding contract will arise until the conditions specified have occurred or been performed.” Though the record is not clear whether the Common Council’s approval here was meant to be a condition under the agreement or a condition to its making, there can be no agreement in either case if satisfaction of the condition turns "upon the whim or caprice of the party to be satisfied.” Williston sec. 675A. Thus, although the example, "I will buy the Andy Warhol painting if I like it,” can be construed as either a condition under a contract or, in Holmes’ phrase, as a condition "to the contract’s coming into being,” Holmes at 315, the undertaking, no matter how construed, is illusory because, as Holmes put it, it makes "the promisor his own final judge.” Id. at 316. But, if the party’s dissatisfaction must be reasonable before he may either reject or withdraw from the agreement, the contract is real and not illusory because whether the condition has been fulfilled can be objectively assessed. Restatement (Second) Contracts sec. 228. See also Williston secs. 675A and 675B. See also Mattei v. Hopper, 330 P.2d 625 (Cal. 1958) and In re Wonderfair Stores, Inc. of Arizona, 511 F.2d 1206 (9th Cir. 1975), which both recognize that the mere fact that one party to a contract conditions his performance on his "satisfaction” does not make the contract illusory.

Whether Kocinski is bound to the settlement prior to the Common Council’s "final approval,” turns on two questions: (1) whether the parties intended that the Common Council’s approval be a condition to the making of the agreement (in which case there would be no contract until the Common Council had ratified the assistant city attorney’s action), or (2) if that approval was intended to be a condition under a contract, whether the settlement agreement was illusory. The resolution of these issues depends on the parties’ understanding of their agreement, see Locke, 10 Wis. 2d at 592-93, 103 N.W.2d at 560, and the nature of the Common Council’s approval process. Thus, on one hand, the Common Council might have reserved to itself a purely ministerial role by either an express or tacit delegation to the city attorney of the power to settle so that its approval of the settlement recommendation would be merely a formality.⁵ In that circumstance, the agreement would be non-illusory, and Kocinski could not withdraw from it. On the other hand, the Common Council might routinely sift and weigh the merits of each "settlement” de novo. If this were the case, Kocinski’s right to withdraw would then turn on whether the parties envisioned that the Common Council’s rejection must be "reasonable” or done in "good faith” and not on whim or caprice so that the legitimacy of the rejection could be objectively assessed. The paucity of the record as it now stands does not permit us to divine, either from the facts or by implication, a duty of reasonableness or good faith.

The document memorializing the settlement agreement is, unfortunately, less than clear on whether there was, or was not, a binding, non-illusory agreement. Although the April 13 letter describes the case as "settled” and speaks of a "full and final settlement,” it also recites an "understanding” that the assistant city attorney "must proceed through the Common Council for final approval of this payment” while noting that "this step will be accomplished as quickly as possible.” Since it can be fairly read in both ways, the parties’ intent must be ascertained with the help of extrinsic evidence. Patti v. Western Machine Co., 72 Wis. 2d 348, 351-52, 241 N.W.2d 158, 160 (1976). Unfortunately, the record is silent on the Common Council’s settlement role as well as what the parties understood that role to be. The charter provision that sets the city’s claim procedure is similarly of little help.⁶ Since we may not speculate or go outside the record to supply the missing pieces, this case must be remanded to the trial court for the taking of evidence on these questions.⁷ Cf. Locke, 10 Wis. 2d at 592, 103 N.W.2d at 560.

IV. Although we remand this case to the trial court for its findings of fact and conclusions of law on whether Kocinski can withdraw from the agreed-to settlement prior to the Common Council’s "final approval,” we must consider whether she has established the existence of newly-discovered evidence that would entitle her to relief from the settlement agreement, since a reversal on this issue would make a remand unnecessary.

Kocinski submits that even if her settlement with the defendants is valid and enforceable, she is entitled to relief under Rule 806.07(1), Stats. That rule provides, in material part:

On motion and upon such terms as are just, the court may relieve a party ... from a... stipulation for the following reasons: ... (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3) ...

Rule 805.15(3), Stats., the standard that we must apply here even though there has not been a "trial,” permits relief because of newly-discovered evidence subject to four conjunctive conditions: First, the evidence must have "come to the moving party’s notice” after the parties entered into the stipulation. Second, the "moving party’s failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it.” Third, the newly-discovered evidence must be "material and not cumulative.” Fourth, the "new evidence would probably change the result.” The burden of establishing these elements lies with the party seeking relief. Padek v. Thornton, 3 Wis. 2d 334, 338, 88 N.W.2d 316, 318 (1958). Whether to grant relief is a matter within the trial court’s discretion and will not be overturned on appeal unless that discretion is clearly abused. In re Estate of Reist, 91 Wis. 2d 209, 225-26, 281 N.W.2d 86, 93 (1979).

The crux of Kocinski’s newly-discovered evidence claim is that although her original attorney knew that she had a ruptured bladder as a result of the accident, he was not aware of the severity of her bladder control problems, to the extent that she might need future surgery, and that he did not have her examined by a urologist.⁸ Although Kocinski’s original lawyer testified at the hearing that he was not aware that she had to undergo self-catheterization four times a day, the test "is not what counsel knows or is aware of but what his client is or should be aware of.” Bear v. Kenosha County, 22 Wis. 2d 92, 99, 125 N.W.2d 375, 380 (1963); State v. Albright, 98 Wis. 2d 663, 674, 298 N.W.2d 196, 202 (Ct. App. 1980).

Kocinski obviously knew of her incontinence problems. Additionally, she had been examined by an orthopedist retained by her original lawyer. The doctor’s report notes the bladder rupture and subsequent repair. Kocinski has thus not established at least two of the prerequisites to relief under Rule 805.15(3), Stats.: (1) that she learned of the alleged newly-discovered evidence after April 13, 1987, the day the stipulation was memorialized, and (2) even if the urologist’s evaluation of her condition, which was done after April 13, can be considered newly-discovered evidence, Kocinski has not demonstrated that the failure to have the evaluation done earlier "did not arise from a lack of diligence.” Rule 8Q5.15(3)(b). Again, the test is what Kocinski, rather than her lawyer, knew or should have known. Bear, 22 Wis. 2d at 99, 125 N.W.2d at 380; Albright, 98 Wis. 2d at 674, 298 N.W.2d at 202. See also John Mohr & Sons, Inc. v. Jahnke, 55 Wis. 2d 402, 407, 198 N.W.2d 363, 366 (1972) (Rule 805.15(3) "cannot be used as a cure for inadequate preparation for trial”).⁹

Additionally, Kocinski has failed to demonstrate that any subsequent settlement (if this one is not enforceable) or that any trial (if the parties ultimately go to trial), would result in a recovery more favorable than the $260,000 settlement to which she had originally agreed. Accordingly, she has not shown that the "newly-discovered” evidence "would probably change the result,” Rule 805.15(3)(d), Stats. The trial court did not abuse its discretion in finding that Kocinski did not satisfy her burden under Rule 806.07(l)(b), Stats.

By the Court. — Order affirmed in part, reversed in part and cause remanded.

1 241.02 Agreements, what must be written. (1) In the following case every agreement shall be void unless such agreement or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged therewith:

(a) Every agreement that by its terms is not to be performed within one year from the making thereof.

(b) Every special promise to answer for the debt, default or miscarriage of another person.

(C) Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry.

2 See, for example, secs. 801.58(1), 893.45 and .971.20(10), Stats.

3 Home Insurance and Ondrejka contend that we should not consider this issue inasmuch as it was not briefed before the trial court. Additionally, it was not directly addressed by the trial court in its oral decision. The lawyer retained by Kocinski to overturn the settlement, however, did raise the issue during the course of his oral argument. The circumstances here warrant our consideration of whether Kocinski was bound by the settlement agreement prior to her change of mind. See State ex rel. Gen. Motors Corp. v. City of Oak Creek, 49 Wis. 2d 299, 319, 182 N.W.2d 481, 491 (1971).

4 Locke refers to a "condition precedent.” Locke, 10 Wis. 2d at 588, 103 N.W.2d at 558. The less than clear difference between a "condition precedent” and a "condition subsequent” has prompted a refinement of the terminology so that "condition” is now used to encompass both concepts. Restatement (Second) Contracts sec. 224 and the Réporter’s note. We accept the Restatement’s approach.

5 The dissent recognizes that there are times when "[a] city attorney may bind the city to an agreement, and in some instances, he or she may do so to the same extent that any attorney may bind a client." Dissent at 753. Significantly, section 2-21 of the Milwaukee Code of Ordinances requires that the city attorney approve agreements with the city that involve more than $25,000.

6 City of Milwaukee Charter, sec. 4-32:

Claims. Whenever a claim against a city of the first class shall be settled by the common council, the reason for such action must be stated in writing and signed by the committee and entered upon the minutes of the proceedings of the common council. Whenever such settlement is made upon the recommendation of the city attorney or his assistant, or other legal officer, the reason therefor must be stated in writing, signed and filed with the city clerk, and published with the proceedings of the common council.

7 The dissent’s eloquent exegesis on municipal law misses the point. The dissent assumes that we have determined that "there was a binding settlement agreement between Kocinski, by her lawyer, and the City of Milwaukee, by the assistant city attorney.” Dissent at 754. We have not. As we have explained, we cannot conclude from this record whether there was, or was not, a binding settlement agreement. Therefore, the matter must be remanded. Home Insurance and Ondrejka argue that even if Kocinski may withdraw from the settlement prior to the Common Council’s approval, that portion of her settlement with them should be upheld. That position is without merit. The settlement agreement memorialized by the April 13, 1987 letter was a package deal; Kocinski agreed to a $260,000 settlement. If any portion of the settlement fails, she will get less than the bargained for $260,000 and the settlement will fail ab initio.

8 Although Kocinski’s pro se submissions before the court raise myriad, and rambling, allegations of "new evidence,” her claim for relief from the judgment must be limited to the matters presented to the trial court. See Allen v. Allen, 78 Wis. 2d 263, 270, 254 N.W.2d 244, 248 (1977).

9 During the course of the proceedings before the trial court, Kocinski’s original lawyer pointed out with commendable candor that if Kocinski had "a problem with our office, the proper thing to do is to hire a lawyer and sue us for malpractice.”