September 23, 2005, prior to the status hearing with Magistrate Levin, Radaszewski delivered to
Maram a draft settlement agreement dated “9/22/05” which was then followed by Maram’s letter
of October 4, 2005, to Radaszewski, accompanied by another Draft Settlement Agreement.
Following Maram’s October 4th letter, “written to consummate settlement,” Radaszewski sent
Maram a reply. In her letter to Maram on October 18, 2005, Radaszewski set forth proposed
language changes in the Draft Settlement Agreement. On October 28, 2005, Maram responded
to Radaszewski, enclosing with his correspondence “a revised draft Settlement and General
Release incorporating the changes to the October 4th draft.” On November 30, 2005, Maram
again communicated with Radaszewski in writing, enclosing with his correspondence his most
recent draft of the Settlement Agreement.

Assuming arguendo that all of the material terms were agreed upon by the parties on
September 23, 2005, as Maram contends, given the conduct of the parties both before and after
the September 23, 2005 hearing, it cannot be said that the terms negotiated constituted an
agreement by which the parties intended to be bound. Rather, by their conduct during
negotiations, the parties clearly indicated their intent to be bound only by a written, signed
agreement finalizing the terms agreed upon. See, e.g., LaSalle, 129 Ill.App.2d at 392-94. All of
the draft settlement agreements exchanged between the parties included signature lines for the
parties to sign. Moreover, post-negotiation representations made by the parties point to the same
conclusion. Where it is alleged by one party, as is the case here, that at the outset of negotiations,
the parties intended not to be bound except by a written, executed agreement and there is no
contradictory evidence in the record as to the allegations, either by counter affidavit or argument,

the silence of the other party in contesting the assertion may serve as an inferential basis for


not explicitly expressed the entry of a consent decree as a condition precedent to their being
bound, “the exchange of prior written drafts constitutes a course of dealing implying any final
settlement would be reduced to a single integrated writing”; and “correspondence subsequent to
the alleged contract formation” can bear on a determination as to whether an enforceable
agreement has been reached. See Trendmaster, 1996 WL 422273 at * 2.

In the instant case, Radaszewski delivered an initial written proposal to Maram on
November 23, 2004. In responding to Radaszewski’s proposal on April 21, 2005, Maram stated,
in writing, his expectation “that this lawsuit will be resolved by the entry of a Settlement
Agreement.” In response to Maram’s letter of April 21, 2005, Radaszewski, on June 17, 2005,
offered “some proposed language for a settlement agreement,” calling for, inter alia, the
specific performance of a particular act by Maram “{w]ithin 30 days of the entry of the consent
decree embodying the terms of this agreement.” Radaszewski also made reference to this
Court’s retention of jurisdiction to enforce “the terms of the consent decree.” In response to
Radaszewski’s June 17 communication, Maram provided a “draft settlement agreement” for
Radaszewski’s consideration. Included in the draft settlement agreement was a proposed
provision specifically requiring the settlement agreement not be entered as part of a court order.
On June 24, 2005, Radaszewski responded to provisions contained in Maram’s proposed draft;
and thereafter, on July 27, 2005, at a settlement status hearing, Radaszewski delivered to Maram
a proposed agreement of her own. On July 15, 2005, Radaszewski, via written correspondence,
offered a pledge of performance to be “included in the consent decree”; to which, Maram
responded on July 20, 2005. Attached to Maram’s response was his “latest Draft Settlement
Agreement.” In response to Maram’s draft settlement agreement, Radaszewski, on September

20, 2005, delivered to Maram a “Revised Proposed Settlement Agreement.” On

4


construing the legitimacy of the claim of contemplation. See, e.g., Knoll v. Swanson,
92 Ill. App. 2d 398, 403 (1968) (Knoll).

In Plaintiff's Reply Memorandum Concerning Enforcement of the Settlement
Agreement, Radaszewski specifically alleges that “[the] parties contemplated that their eventual
agreement would be reduced to a written agreement to be executed by the parties and their
counsel.” This is a claim that Maram does not dispute, contradict or deny; and there is no
contrary evidence or facts alleged elsewhere in the record that indicates it was the parties’ intent
to be bound by anything other than a written agreement executed by the parties and their
counsel. Based on an examination of the entire series of communications between the parties
both before and after September 23, 2005, as set out above, and the representations contained in
their briefs, “there are objective indications that both parties expected the final settlement to be
formalized in an integrated written document” before they would become bound by its terms.
See, e.g., Trendmasters, 1996 WL 422273 at * 2.

In Illinois, the party asserting the existence of an agreement must establish its existence
by clear and convincing evidence. See, e.g., Chatlin, 153 Ill.App.3d at 813; see also Knoll,

92 Ill App.2d at 403 (holding that the burden of proving the existence of an agreement of
settlement is upon the party alleging reliance upon it). Here, Maram has the burden to prove the
existence of the agreement; and he has not done so. In this case, even if all the facts alleged in
Maram’s Statement of Matters of Agreement are accepted as true, they do not prove that the
parties reached an enforceable settlement agreement. They are not dispositive of a final
enforceable settlement agreement being reached where the parties “expected their final

settlement to be formalized in an integrated written document.”


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian on behalf
of Eric Radaszewski,

Plaintiff,
Case No. 01 C 9551

John W. Darrah

BARRY MARAM, Director, Illinois Department
of Healthcare and Family Services,

)
)
)
)
)
v. )
)
)
)
)
Defendant. )
MEMORANDUM OPINION AND ORDER

Plaintiff, Donna Radaszewski, filed a suit against former Defendant, Jackie Garner, the
predecessor of Defendant, Barry Maram, the Director of the Illinois Department of Public Aid,
in the Circuit Court of DuPage County, Illinois. The seven-count action was subsequently
removed to this Court. On October 16, 2002, Counts I through V were remanded to the Circuit
Court of DuPage County, and this Court retained jurisdiction over Counts VI and VII.

On October 27, 2004, the action was referred to Magistrate Judge Jan H. Levin for a
settlement conference; and the parties engaged in settlement negotiations under
Magistrate Levin’s supervision. The parties have exchanged numerous offers and counter offers,
both in written form and tendered or presented orally and later reduced to written form,
accompanied by a proposed or draft settlement agreement. At the direction of this Court, the
parties have submitted memoranda regarding the status of the settlement proceedings. The

parties disagree as to whether an enforceable agreement has been reached, particularly as to the

method of enforcement.


Based on the foregoing, there is no final enforceable settlement agreement between the
parties. There presently is no other issue or question of law raised by either of the parties in their
briefs upon which this Court is empowered to render an opinion. As with all federal courts, the
exercise of this Court’s power to declare law is limited to the resolution of non-hypothetical
issues. See In the Matter of FedPak Systems, Inc., 80 F.3d 207, 212 (7th Cir. 1995) (a federal
court lacks the constitutional power to render advisory opinions or to decide “abstract, academic,
or hypothetical questions”); see also Steel Co. v. Citizens for a Better Environment, 523 US. 83,
101 (1998) (“Hypothetical judgments . . . come to the same thing as an advisory opinion,
disapproved by [the Supreme] Court from the beginning.”).

This matter is set for April 19, 2006, at 9:00 a.m. for scheduling for trial.

Spuctsnace XE bee

JOHN W. DARRAH
United/States District Court Judge



Specifically, Maram contends that the matter of suitable enforcement mechanisms has
already been agreed upon by the parties and has been incorporated in an enforceable oral
settlement agreement. It is Maram’s position that the oral agreement may not now be modified
without the expressed consent of both parties. Maram argues that because the parties reached an
enforceable settlement agreement on September 23, 2005, as to all material terms, including
available enforcement mechanisms, this Court is barred from imposing any terms or conditions
beyond those already agreed upon by the parties. Maram requests the Court to enforce the
settlement and enter a stipulation of dismissal without further negotiations.

Maram contends that the parties have entered into an unalterable and enforceable
settlement agreement. Maram submits that both parties represented to Magistrate Levin,
immediately prior to his entry of the order on September 23, 2005, that all matters of substance
had been negotiated with no material terms remaining unresolved, including issues relating to
the choice of enforcement mechanisms and the waiver of sovereign immunity. Further, “[a}ll
that remained (as of September 23, 2005) was drafting an agreement for signature incorporating
newly accepted substantive provision concerning a cap on the number of hours of payment for
private duty in-home nursing.”

Radaszewski disputes this contention, maintaining that, while a settlement was reached
as to most substantive terms, there was no agreement as to method(s) of enforcing the agreement
or the “breadth of the confidentiality clause” being sought by Maram.

In enforcing a settlement agreement, a federal court must look to applicable state law to
construe the terms of the agreement. Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 490 (7th

Cir. 2002). The enforcement and construction of settlement agreements is governed by the law


of contracts. Lampe v. O'Toole, 292 Ill.App.3d_ 144, 146 (1997), see also Laserage Technology

Corp. v. Laserage Laboratories, Inc., 972 F.2d 799, 802 (7th Cir.1992), citing Air Line Stewards
and Stewardesses Assoc. v. Trans World Airlines, Inc., 713 F.2d 319, 321 (7th Cir.1983). While
under Illinois law an oral settlement agreement is generally binding and enforceable where there
has been an offer, an acceptance, and a meeting of the minds as to all material terms, an oral
settlement agreement will not be binding on the parties, even where the parties are in total and
complete agreement as to all essential and material terms, where it was not the intent of the
parties from the outset of the negotiations to be bound, except upon the execution of a written
agreement. See LaSalle Nat’! Bank v. Int'l Lid., 129 Il. App.2d 381, 392-94 (1970) (LaSalle);
see also Trendmaster, Inc. v. Walgreen Co., 1996 WL 422273 at * 2 (N.D. Ill. July, 24, 1996)
(Trendmaster) (where the reduction of an agreement to writing and its formal execution is
objectively intended by the parties as a condition precedent to its completion, there can be no
contract until then, even if the actual terms have been agreed upon).

“In determining whether a party intended that a contract should be reduced to writing, a
court can consider . . . whether negotiations themselves indicate that a written draft is
contemplated as the final conclusion of negotiations.” Jn re Marriage of Chailin, 153 IllApp.3d
810, 813 (1987) (Chatlin). Also of significance in determining whether the parties intended to
be bound is the conduct of the parties both before and after agreeing to the material terms. See
e.g. Trendmaster, 1996 WL 422273 at * 2.

In Trendmaster, the court observed that “objective evidence of the parties’ intent that a
separate written document would formalize the terms of the agreement need not be explicitly

expressed” by the parties. Trendmaster, 1996 WL 422273 at * 2. Rather, where the parties have