2. There was a meeti t in

Plaintiff next argues that there was no meeting of the minds as to the specific terms of the
release, referring to Plaintiff's belief that the agreed release excluded his claim for unpaid
management fees. (PI.’s Opp’n at 9.) In support of his contention, Plaintiff argues that “[w]hile
{Mr.] Rutkoff thought that the issue was resolved, [Mr.] Baron did not agree.” (/d.) Plaintiff further
argues that the phrase “release from Stephen Robin,” as used by Mr. Rutkoff in his letter accepting
Mr. Baron’s first proposal, has no “fixed meaning” and the evidence reflects no subjective meeting
of the minds as to the meaning of that phrase. (/d.)

Defendants argue that there is no material dispute about the terms of the release because the
words used by Mr. Baron in his declaration to describe the release are in accordance with Mr.
Rutkoff’s recollection and clear in meaning: “{A] complete release by plaintiff of the retrospective
claims against defendants, related to Green Oaks.” (Baron Decl. { 9.)

“{W]hether [the parties] had a meeting of the minds is determined by reference to what the
parties expressed to each other in their writings, not by their actual mental processes.” Laserage
Tech, Corp., 972 F.2d at 802. Accord Skycom Corp. v. Telstar Corp., 813 F.2d 810, 814 (7th Cir.
1987) (applying Wisconsin law) (stating that the “intent of the parties [to be bound] must necessarily
be derived from a consideration of their words, written and oral, and their actions”). The court
concludes that the parties’ objective manifestations of intent in this case (i.¢., the parties’ words,
writings and conduct) demonstrate a meeting of the minds as to the terms of the settlement. In
particular, there was a meeting of the minds as to the scope of the release (or, more specifically,
whether the release covered Plaintiff's claim for management fees). As discussed above, the parties

do not disagree that Mr. Baron offered, in exchange for Defendants’ payment of all expenses

-19-


a release of Plaintiff's claim to management fees, he did not have the authority to do so. (/d. at 3 n.
2)

To determine whether an enforceable settlement agreement exists in this case, the following
issues must be addressed: (1) whether Mr. Baron made an offer at the July 18, 2003 settlement
conference that included a release of Plaintiff's claim for management fees; (2) whether the parties
reached an enforceable agreement; and (3) whether the agreement is enforceable under the statute
of frauds. Additionally, the issue of Mr. Baron’s authority will be considered, although Plaintiff

never properly presented that argument.

A, Mr. Baron’s offers at the July 18, 2003 settlement conference.

Defendants assert that the offer made by Mr. Baron on July 18, 2003, which Defendants
accepted, included a release of Plaintiff's claim for unpaid 2002 and 2003 management fees.
According to Defendants, the offers made during the July 18, 2003 telephone conference were as
follows:

1) “A sale of the property by a public, absolute auction; payment by defendants of all
auction expenses; and a complete release by plaintiff of all claims against the
defendants related to Green Oaks.” (Rutkoff Decl. ff 9, 10); and

2) “A sale of the property by a public, absolute auction; payment [of] one-half of the
auction expenses by plaintiff; payment of one-half of the auction expenses by the
defendants; and the continuation of the Case for the purpose of allowing plaintiff to
prosecute his monetary claims related to Green Oaks that, according to [Baron],
would not be resolved by an auction of the property.” (Jd.)

Defendants contend that the first offer included a release of a// claims related to Green Oaks and did

not carve out an exception for the unpaid management fees, as Plaintiff now claims. (Defs.’ Mot. ¥

18.) In support of that contention, Defendants rely on the fact that Mr. Baron specifically referred

-13-


purposes. The fact that an agreement had not yet been executed with DK Realty is irrelevant to the
issue of whether a sufficiently definite agreement had been reached by Plaintiff and Defendants.
See Dawson, 977 F.2d at 373-74 (finding that terms of offer were not too vague or uncertain to form
valid contract because two relatively certain terms existed).

Plaintiff admits that, in the parties’ subsequent negotiations (after Defendants accepted
Plaintiff's offer), Defendants agreed to all of Plaintiff's demands, except for the payment of
management fees. (Pl.’s Opp’n at 11-12.) Plaintiff's counsel stated at the September 16, 2003
hearing: “It is [Plaintiff's] position that the case is settled in principal [sic]. The only outstanding
issue that we believe we do not have an agreement on is past management fees.” (Defs.’ Reply, Ex.
B, Tr. Sept. 16, 2003 at 4) (emphasis added)."* That fact supports Defendants’ position that the
topics of subsequent negotiation were not material terms preventing the formation of a sufficiently
complete and definite agreement.

Those facts distinguish this case from Thermos Co. v. Starbucks Corp., No. 96 C 3833, 1998

3 Plaintiff also argues against the enforceability of the agreement on the grounds that
there was no agreement read into the record during the July 18th conference; that there was no
court reporter present at the conference; and that the acceptance of the alleged offer occurred 10
days after the conference. (P1.’s Opp'n at 10.) None of those factors leads to a finding that no
agreement was reached or that the agreement is unenforceable. The fact that no agreement was
read into the record on July 18th is of no significance because no agreement was made that day;
instead, two offers were tendered and Defendants’ attorney stated that he would take the offers
back to his clients for consideration. Likewise, the fact that there was no court reporter present at
the conference does not somehow make Plaintiff's offer ineffective. See Lynch, Inc. v.
SamataMason, Inc., 279 F.3d 487, 489-92 (7th Cir. 2002). Finally, the fact that the acceptance
was provided 10 days after the settlement conference occurred has no bearing here, as the
evidence does not show (and Plaintiff does not contend) that the offers were not still open for
acceptance at that time.

‘4 Defendants attach the transcript of proceedings from the September 16, 2003 hearing
to their reply brief as Exhibit B. (Defs.’ Reply at 3.) However, the caption page from the August
25, 2003 hearing was inadvertently placed at the front of Exhibit B.

-23-


DK Realty Partners, LLC, for the sale of Green Oaks by a public, “absolute” auction (i.e., “with no
right of reservation on the part of the seller”). (Rutkoff Decl. ] 6; Defs.’ Mot., Ex. A, DK Realty
Proposal at 2.) The proposal set forth numerous terms, including a method of sale, DK Realty
Partners’ fees, the marketing costs, the timing of the auction, the timing of the closing, listing
agreement requirements, and the marketing proposal. (DK Realty Proposal at 5-8.) By letter dated
July 11, 2003, Catherine McCain, another attorney representing Defendants, advised Mr. Baron that
if the parties reached an agreement, Defendants would accept the proposal offered by DK Realty.
(Defs.’ Mot., Ex. B, McCain July 11, 2003 Letter.)

A further telephone settlement conference was set for July 18, 2003. [Dkt 23.]
Approximately five minutes before that conference was scheduled to begin, Mr. Baron called Mr.
Rutkoffto discuss the possibility of settlement. (P1.’s Opp’n, Ex. A, Decl. of Steven L. Baron] 8-9.)
As further discussed in detail below, during that conversation, Mr. Baron conveyed two alternative
offers of settlement. (Rutkoff Decl. | 9; Baron Decl. 49.) One of the offers consisted of a sale of
Green Oaks by a public, absolute auction, Defendants would pay all of the auction expenses, and
Plaintiff would release claims related to Green Oaks. (Defs.’ Mot. { 5; PI.’s Opp’n at 2.) The second
offer also consisted of a sale of the property by a public, absolute auction, but included the conditions
that each side pay half of the auction expenses and that Plaintiff retain the right to litigate all of his
claims that would not be addressed by a sale of the property. (P1.’s Opp’n at 3; Defs.’ Mot. ] 5.)

Following their conversation, Mr. Baron and Mr. Rutkoff proceeded with their scheduled

> In several places in his Opposition, Plaintiff refers to his own affidavit as Exhibit A and
Mr. Baron’s declaration as Exhibit B, when, in fact, Mr. Baron’s declaration is marked as Exhibit
A and Plaintiff's affidavit is marked as Exhibit B. This opinion will refer to the correct exhibit
letter instead of the exhibit letter that may have been incorrectly cited by Plaintiff.

-4-


before they actually sign the settlement agreement. As this case illustrates, that perception is often
unfounded in the law,” 213 F.3d at 337. In this case, Plaintiff entered into a binding agreement with

Defendants, regardless of the fact that he did not sign a written settlement agreement.

Conclusion

For the foregoing reasons, this court respectfully recommends that Defendants’ Motion to
Enforce Settlement Agreement be granted. Specific written objections to this report and
recommendation may be served and filed within 10 business days from the date that this order is
served. Fed. R. Civ. P. 72(a). Failure to file objections with the district court within the specified
time will result in a waiver of the right to appeal all findings, factual and legal, made by this court
. in the report and recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.

1995),

Geraldine Soat Brown
United States Magistrate Judge

January 20, 2004

-34-


associated with the sale of Green Oaks by a public, absolute auction, “a complete release. . . of the
retrospective claims against defendants, related to Green Oaks.” (Baron Decl. 9) (emphasis added).
Thus, regardless of the parties’ subjective intentions, the parties objectively agreed to a settlement

in which Plaintiff would release his claim for management fees.''

3. te f the n cient fini

Plaintiff argues that only a “conceptual framework for settlement” was agreed upon, and that
framework was contingent upon the agreement of additional, specific terms that were never
discussed or resolved. (P1.’s Opp’n at 4, 6.) Plaintiff argues that there was no “meeting of the
minds” regarding those additional terms, which he identifies as the unpaid management fees
(discussed above), the type of listing agreement, the accounting, the interim operation of the center,
the timing of the sale, the release and dismissal of the lawsuit, the dissolution of the land trust, and
a possible § 1031 tax-deferred exchange. (/d. at 4, 10-11.) In his Opposition, Plaintiff identified
those issues as “less significant issues.” (/d. at 4.) At oral argument, however, Plaintiff's attorney

described those issues as material to the agreement.’? Plaintiff relies on the fact that, after Mr.

"" Asa final point, Plaintiff also refers to the fact that the minute order entered after the
August 4, 2003 status hearing stated that “ [the] parties report that a settlement agreement has
been reached in principle.” (Order, Aug. 4, 2003.) [Dkt. 25.] However, that minute order is not
determinative here because the court specifically stated at the hearing that “there may well be a
binding and enforceable settlement at this point — I’m not going to opine on that point.” (Tr. Aug.
4, 2003 at 6-8.)

'2 When questioned at oral argument regarding the significance of the § 1031 exchange
issue, Plaintiff’s attorney stated that that issue was important because if the property was not sold
at an appropriate time, the parties would face many negative tax consequences. In his August 12
letter, Mr. Baron states that one or more of the parties “may” want to take advantage of a § 1031
exchange and the settlement agreement should provide that, if necessary, the parties will
facilitate such an exchange. (Baron Aug. 12, 2003 Letter at 4.) .

-20-


those agreements that convey some interest in real property. See, e.g., Fitch v. King, 116 N.E. 624
(Ill. 1917) (creation of an interest in a partnership whose purpose to sell real property is not a sale
of real estate subject to statute of frauds); Manlove v. Lemmon, 111 N.E. 739, 741 (Ill. 1916)
(agreement for survey of land incident to auction of land is enforceable and not subject to statute of
frauds); In re Senese v. Senese, 245 B.R. 565, 577 (Bankr. N.D. Ill. 2000) (oral agreement that debtor
would provide cash contribution toward purchase of real estate was not a contract to buy or sell land
and was not unenforceable under the statute of frauds). The settlement agreement in this case does
not purport to convey any interest in Green Oaks. The settlement agreement here merely lays the
groundwork for a future auction sale and disposes of the case. In Vogt v. Bartelsmeyer, 636 N.E.2d
1185, 1191 (Ill. App. 1994), the court rejected as “a red herring” the argument that an agreement
settling the amount of compensation for the taking of real property under eminent domain powers
was unenforceable under the statute of frauds. The court stated: “What defendants failed to consider
is that the instant case is enforcement of a settlement agreement between the parties.” Jd.

A careful reading of the Hartenbower case cited by Plaintiff supports the conclusion that the
statute of frauds is not applicable here. In that case, all of the heirs of William Patterson agreed to
sell his property by an auction and entered into an agreement dated October 16, 1908 authorizing
Benjamin Patterson to sell the property at an auction. Hartenbower, 90 N.E. at 298. Benjamin
Patterson held the auction and plaintiff Hartenbower was the highest bidder, however, “no written
contract or memorandum of sale was made.” Jd, at 299. Subsequently, one of the heirs refused to
sign a deed conveying the property to Hartenbower. Jd. The court held that the statute of frauds
prevented the enforcement of the sale to Hartenbower because there was no written agreement to sell

to Hartenbower, and the deed alone was not sufficient because it contained no mention of the terms

-26-


construction and applicable principles of equity, to ascertain what the parties have agreed to do.”
Cheever, 578 N.E.2d at 983 (quotation omitted). However, if the essential terms “are so uncertain
that there is no basis for deciding whether the agreement has been kept or broken, there is no
contract.” Jd. at 984. “The critical issue is usually whether there is a ‘fall-back standard’
comparable to the [Uniform Commercial] Code’s ‘reasonable price’ that is adequate to enable a
court to supply the open term should negotiations fail.” E. Allan Farnsworth, Precontractual
Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations, 87 Colum. L. Rev.
217, 255 (1987).

In this case, two certain terms are found in the expressed agreement, namely that Defendants
would pay all of the expenses to hold a public, absolute auction of Green Oaks, and, in exchange,
Plaintiff would release his claims against Defendants relating to Green Oaks. In the court’s view,
those terms are sufficiently definite because “the promises and performances to be rendered by each
party are reasonably certain” Cheever, 578 N.E.2d at 983 (quotation omitted). Furthermore, there
is an objective basis for determining if the other party breached the oral settlement agreement.
Wilson, 46 F.3d at 667.

The parties’ agreement to sell their property by a public, absolute auction is sufficiently
definite because the parties had previously agreed on the terms of that auction, e.g., a method of sale,
DK Realty Partners’ fees, the marketing costs, the timing of the auction, the timing of the closing,
listing agreement requirements, and the marketing proposal, by agreeing to the DK Realty Proposal.
The parties could proceed with an auction based on those terms notwithstanding the fact that, upon
further reflection, one or both parties might have wanted to adjust some of the details, such as the

schedule set out in the DK Realty Proposal, to achieve a timing more beneficial for tax planning

-22-


minds as to either the terms of the release or various other details of the parties’ agreement, which

were either left unresolved or never discussed. (Id. at 9-12.)

1 The parties did not make a written agreement a condition precedent.

Plaintiffargues that there can be no enforceable agreement because the parties made a written
settlement agreement a condition precedent to their agreement, but never executed a written
agreement. (P1.’s Opp’n at 5-7, 14.) In support of that argument, Plaintiff contends that, “[a]t every
turn, [he] has asserted that. . . a detailed written settlement document would be required to document
the specific terms agreed upon by the parties.” (/d. at 6.) That assertion, Plaintiff argues, was
consistent with Defendants’ demand in their acceptance letter that a release be executed. (Id. at 5.)
Defendants argue that their acceptance was unqualified and not conditioned on the parties’ execution
of any written document. (Defs.’ Reply at 7.)

The court concludes that the parties did not make a written settlement agreement a condition
precedent to an enforceable agreement. When Mr. Baron put the two offers on the table during the
July 18, 2003 conference with the court, he did not state that a written settlement document was a
condition precedent to a binding agreement, nor did he make such a demand at any time before
Defendants accepted the settlement offer.? Similarly, Mr. Rutkoff’s letter on behalf of Defendants
accepting “unconditionally” one of the two offers did not state that the execution of a written

document was a condition precedent to a binding agreement between the parties. (Rutkoff July 30,

° Notably, under this court’s Standing Order for Settlement Conference, the parties are
required to come to the conference with authority to make a “final and binding settlement.”
Standing Order for Settlement Conference <http://www.ilnd.uscourts.gov/JUDGE/BROWN/
sofsc2003.pdf>

-17-


settlement agreements are governed by principles of local law applicable to contracts generally.”
Laserage Tech. Corp. v. Laserage Lab Inc., 972 F.2d 799, 802 (7th Cir. 1992) (quoting Air Line
Stewards and Stewardesses Assoc. v. Trans World Airlines, Inc., 713 F.2d 319, 321 (7th Cir. 1983);
see also Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000); Abbott Labs. v. Alpha
Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999).5 Under Ilinois law, an oral settlement
agreement is enforceable “‘as long as there is clearly an offer and acceptance of the compromise and
a meeting of the minds as to the terms of the agreement.” Wilson v. Wilson, 46 F.3d 660, 666 (7th
Cir, 1995) (quoting Brewer v. National RR. Corp., 628 N.E.2d 331, 335 (Ill. 1993)).® linois law
follows the objective theory of intent; whether the parties had a “meeting of the minds” is determined
not by their actual subjective intent, as in their actual mental processes, but by what they expressed
to each other. Laserage Tech. Corp., 972 F.2d at 802; see also Empro Mfg. Co., Inc. v. Ball-Co
Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989) (“Contract law gives effect to the parties’ wishes, but
they must express these openly. Put differently, ‘intent’ in contract law is objective rather than
subjective... .”).

In addition, “a binding agreement requires a meeting of the minds or mutual assent as to all

5 See also Allstate Fin. Corp. v. Utility Trailer of Illinois, Inc., 936 F. Supp. 525, 528
(N.D. Ill. 1996) (stating that a motion to enforce a settlement agreement is essentially the same as
a motion to enforce a contract and ordinary contract construction rules apply); Hyde Park Union
Church v. Curry, 942 F. Supp. 360, 363 (N.D. Ill. 1996) (stating that a contract analysis must
occur to determine whether a contract to settle was formed); Schapp v. Executive Indus., Inc.,
760 F. Supp. 725, 726 (N.D. Ill. 1991) (stating that the traditional elements of a contract must be
present before a court will enforce a settlement agreement).

® The parties correctly agree that Illinois law applies to this dispute. See P].’s Opp’n at 7;
Defs.” Mot. J 20; Defs.’ Reply at 5. See also Pohl v. United Airlines, Inc., 213 F.3d 336, 338
(7th Cir, 2000) (holding that the enforceability of a settlement agreement is governed by local
contract law).

-9-


several hearings before the filing of Plaintiff's Opposition. It is significant that Donald Kindwald,
the attorney who replaced Mr. Baron in the case, did not mention Mr. Baron’s alleged lack of
authority when he first appeared in court on September 16, 2003, even though he stated that the
issue of unpaid management fees was still outstanding. (Tr. Sept. 16, 2003 at 4.) Plaintiff's delay
in raising a claim of Jack of authority bolsters the conclusion that Mr, Baron did not lack the
authority to make the offers that he made. See Shapo, 782 N.E.2d at 824 (affirming lower court’s
enforcement of settlement where, inter alia, party waited more than two months after agreement was
entered to contest its validity); Frazier v. Indiana Dept. of Labor, No. IP01-0198-C-T/G, 2003 WL
21649931 at *5 (S.D. Ind. June 4, 2003) (Baker, M.J.) (recommending enforcement of settlement
agreement where a party did not respond to a facsimile from his attomey confirming that the attorney

had his authority to settle the case).

Finally, the excerpts from Plaintiff's deposition that were attached to Defendants’ reply brief
do not carry Plaintiff's burden of demonstrating that Mr. Baron lacked the authority to negotiate a
settlement that included a release of Plaintiff's claim for management fees, Plaintiff had very limited
recollection of the specifics of his conversations with Mr. Baron during the period of the various
settlement conferences, although Plaintiff was aware that settlement conferences with the court were
continuing. '* Plaintiff testified that he knew that Mr. Baron had made an offer to settle the case, and
also testified that Mr. Baron did not describe the offer nor did Plaintiff ask Mr. Baron to describe the
offer. (Robin Dep. at 259.) Plaintiff admits that Mr. Baron faxed him Mr. Rutkoff’s July 30

acceptance letter. (/d. at 262-63.) That letter expressly stated the terms as Defendants understood

‘¢ Plaintiff testified to an “understanding” of what Mr. Baron’s instructions were, but
could not remember what words he used to express that understanding. (Robin Dep. at 245, 247.)

-32-


footnote. However, in the interest of presenting a complete report and recommendation to the

District Judge, that issue will be discussed.

Although the authority of an attorney to represent a client in litigation is separate from the
authority of an attorney to compromise or settle the lawsuit, “the existence of the attorney of record’s
authority to settle in open court is presumed unless rebutted by affirmative evidence that authority
is lacking.” Shapo v. Tires N’ Tracks, Inc., 782 N.E.2d 813, 823-24 (Ill. App. 2002). “Where a party
silently stands by and permits his attorney to act in his behalf in dealing with another in a situation
where the attorney may be presumed to have authority, the party is estopped from denying the

agent’s apparent authority as to third persons.” Jd. at 824 (citation omitted).

In this case, the parties’ respective attorneys and principals (including Plaintiff) appeared
for a settlement conference with this court on May 27, 2003, pursuant to this court’s Standing Order,
which requires that those who attend a settlement conference must have “full settlement authority.”
Standing Order for Settlement Conferences J 2. When the parties did not settle that day, an order
was entered continuing the conference to June 10, 2003, on which date the parties’ counsel were to
appear by telephone. (Order, May 27, 2003.) [Dkt 20.] The court held three more telephone
settlement conferences with the parties’ attorneys, on June 10, June 17, and July 18, 2003. Plaintiff
was aware that there were ongoing settlement conferences with the court. (Defs.’ Reply, Ex. A, Dep.
of Stephen Robin at 249.) At no time during or between any of those four conferences did Plaintiff
or his attorney advise anyone that Mr. Baron did not have authority to make proposals which, if
accepted, could lead to the settlement of the case, The settlement conferences were conducted by
the court and in the auspices of the court, and Mr. Baron appeared to be cloaked with the authority
needed to settle the case. Under those circumstances, the burden rests on Plaintiff to rebut the

-29-


entering into a final and binding agreement with David Kaufman and getting the case
dismissed with prejudice.

(Defs.’ Mot., Ex. C, Rutkoff July 30, 2003 Letter.)
A status hearing was held on August 4, 2003. During that hearing, Mr. Baron stated on the
record, in relevant part:

Now I’m prepared to represent to the Court today that I do believe that we have a
conceptual framework for settlement. What I told Mr. Rutkoff on the phone this
morning is that, with all settlements, we’re going to need to work through a
document to do this, I’m sure issues will come up. I’m hoping none of them will be
insurmountable.

One of the issues I have already raised with him is that we don’t have current
financials on the property. We have financials through the yearend [sic] 2002, and
so I have asked that they could prepare and just send us, you know, whatever the
current financials are through midyear 2003.

Short of that, Judge, I think that we ought to be able to wrap this up... . Mr.
Rutkoff and I can meet and talk about the formula for the settlement agreement.

Talso don’t want to overstate it. Okay? What happened was we made a generalized
conceptual proposal when we were on the telephone last time .... It was exactly
that, a generalized proposal.

I think we have the basic concepts here.... But, you know, I’m reluctant to say that
we have a final and binding settlement agreement on the parties.

(Defs.’ Mot., Ex. D, Tr. Aug. 4, 2003 at 3, 8.) Mr. Rutkoff made the following comments, in
relevant part, at the August 4, 2003 status hearing:
[OJur position is that the case has been settled. The property will be sold in

accordance with the proposal that their chosen auctioneer came up with. And our side
has agreed to bear the expenses so that we can get rid of the... case.

-6-



telephone conference with the court. (Rutkoff Decl. 10; Baron Decl. ¥ 11.) Ms. McCain also
joined the telephone conference. (Rutkoff Decl. § 15; McCain Decl. 4 6.) During that conference,
the lawyers agreed to go off the record to discuss with the court the progress of the settlement
discussions. Mr. Baron repeated the two settlement offers described above. (Baron Decl. 412;
Rutkoff Decl. 4 10; McCain Decl. 7.) The court asked Mr. Baron to explain why all of Plaintiff's
claims would not be resolved by an auction of the property. (Rutkoff Decl. 10; Baron Dect. { 12.)
Mr. Baron responded that the Amended Complaint asserted damage claims for which Plaintiff would
not be compensated by an auction, including, for example, claims for past management fees that
were never paid to him. (Rutkoff Decl. | 10; Baron Decl. q 12.) In response to Mr. Baron’s
settlement proposals, Mr. Rutkoff stated that he was pessimistic that his clients would accept either
proposal because Defendants did not want either a partial resolution of the case or to pay Plaintiff's
share of the auction expenses, but that he would communicate the offers to Defendants. (Rutkoff
Decl. J 11; McCain Decl. 7 9.)

Mr. Baron did not withdraw either of the settlement offers at any time after the settlement
conference on July 18, 2003. (Rutkoff Decl. 12.) On July 30, 2003, Mr. Rutkoff sent a letter to Mr.
Baron stating:

My clients have authorized me to accept, unconditionally, one of the offers which you

made on behalf of [Plaintiff] both immediately prior to and during the last telephone

status conferences with Magistrate Judge Brown on July 18, 2003. Specifically, our

clients agree to sell the subject property in an “absolute auction” (i.e., with no right

of reservation on the part of the sellers) in accordance with the June 20, 2003

proposal. . . and to pay all of the expenses and commissions as set forth therein; in

exchange for a release from [Plaintiff]. The above-referenced lawsuit can be
dismissed with prejudice now, and we should so advise Magistrate Judge Brown at

or before next week’s court hearing.

Please call me at your earliest convenience so that we can discuss the mechanics of

-5-


2003 Letter.) He stated: “Please call me at your earliest convenience so that we can discuss the
mechanics of entering into a final and binding agreement with David Kaufman [who submitted the
auction proposal] and getting the case dismissed with prejudice.” (Id.) (emphasis added). Mr.
Baron’s statement at the August 4, 2003 status hearing that a written settlement document would be
needed as “with all settlements,” and Mr. Rutkoff’s subsequent draft of a written agreement to
memorialize the terms of the oral agreement do not prove that a written agreement was a condition
precedent to a binding agreement." It is well-established that an oral settlement agreement can be
binding and enforceable. See Dawson, 977 F.2d at 374 (stating that “[t]he fact that a formal written
document is anticipated does not preclude enforcement ofa specific preliminary promise”); Allstate,
936 F. Supp. at 528 (finding that parties intended to be bound and that written document was only
to memorialize terms of oral agreement and was not a condition precedent to final oral agreement);
Mattingly, 897 F. Supp. at 377 (stating that “[t]he agreement is not invalid simply because it calls
for the parties to reach another agreement in the future”); Schapp, 760 F. Supp. at 728 (stating that
the fact that an agreement was never formally executed does not preclude finding that an enforceable
agreement was reached, as nothing in acceptance letter was conditional and there was no evidence
that a written document was a condition precedent to the settlement); Porter, 981 F. Supp. at 1131
(finding that a binding agreement was reached because “[t]he subsequent drafting of the written
documents was only to memorialize the terms of the oral agreement; neither a written settlement
document nor approval of the agreement by any non-party was a condition precedent to the final oral

agreement”).

‘© Specifically, Mr. Baron stated: “I do believe that we have a conceptual framework for
settlement. What I told Mr. Rutkoff on the phone this morning is that, with all settlements, we’re
going to need to work through a document to do this.” (Tr. Aug. 4, 2003 at 3.)

-18-


(Defs.’ Mot., Ex. F, Rutkoff Aug. 22, 2003 Letter at 2.) With respect to Mr. Baron’s suggested
revision to include management fees, Mr. Rutkoff stated:

Management fees have been a bone of contention from day one, and you never

carved out any claims from your offer to settle based on our side paying all of the

transaction costs. Indeed, the only time you used the word “retrospective” was in

connection with the alternative offer for [Plaintiff] to retain and to prosecute those

claims with [Plaintiff] paying half of the costs. And, when you explained this

concept to Magistrate Judge Brown, you identified these claims [for the unpaid

management fees] as the purported monetary and accounting claims that were not
addressed by a sale of the property.
(Id. at 1.)

On August 25, 2003, another status hearing was held. Mr. Baron advised the court that
Plaintiff “asked that he be paid the management fee for 2002 and 2003,” and that “Defendants have
taken the position that this was a claim that was waived or released or is to be released as part of the
settlement, and that has sort of. . . brought us to a point of loggerheads.” (Defs.’ Mot., Ex. G, Tr.
Aug. 25, 2003 at 3-4.) Mr. Baron then stated: “I mentioned the fact that. . . in exchange for the
payment of the cost of the sale. .. we would release our — what I called retrospective claims. We
didn’t have any fundamental discussion about what those retrospective claims are.” (Id. at 11-12.)

Subsequently, Defendants agreed to all of the issues raised in Mr. Baron’s letter with one
exception, the unpaid management fees for the years 2002 and 2003. (PI.’s Opp’n at 11-12.) When

the parties were unable to resolve that issue, Defendants brought the present Motion.

Analysis
L Legal Principles

“A settlement agreement is a contract and as such, the construction and enforcement of

-8-


WL 299469 (N.D. Ill. May 29, 1998) (Kocoras, J.), cited by Plaintiff. In Thermos, the settlement
reached at an out-of-court mediation foundered on the parties’ inability to implement their agreement
to agree on a “commercially acceptable noninfringing process” for the defendants to use. 1998 WL
299469 at *6. The court could not enforce the settlement agreement because there was no industry
definition of the term, and the court had no definition to apply in the context. Jd. The court observed
that the parties’ subsequent inability to negotiate a resolution of that issue further indicated the lack
of a meeting of the minds on that point. Zd.

In contrast, in this case, the parties’ agreement that Plaintiff would release his claims is
sufficiently definite. Plaintiff's reliance on Orr is misplaced. In the Orr case, the Seventh Circuit
reversed the district court’s decision to enforce a settlement agreement where the parties could not
agree on how to implement their agreement to exchange “proper legal releases,” a concept which the
court found to be vague and to have no commonly understood meaning. 560 F.2d at 769-71. Asa
threshold matter, however, the Seventh Circuit was applying federal law, not Illinois contract law,
to determine the enforceability of the settlement agreement in the Orr case, which was brought
under the Miller Act, Jd. at 769. The Seventh Circuit subsequently distinguished Orr on that ground
in the Wilson case, the facts of which are much closer to the present case. 46 F.3d at 667. In Wilson,
the Seventh Circuit, applying Ilinois law, affirmed the district court’s decision to enforce a
settlement agreement where the parties in open court had agreed that, as part of the settlement, the
plaintiff would be forever barred from bringing all claims against the defendants for any acts that
gave rise to his suit, Jd. at 662, 667. Although there was “quibbling” over whether that would be
achieved by mutual releases or a covenant not to sue, the court ultimately concluded that there was

an enforceable agreement that the plaintiff would drop all of his claims against the defendants in

-24-


v

4 Minute Order Form (06/97)
United States District Court, Northern District of IHinois
Name vealemte seats Robert W. Gettleman Siting en it Saas Geraldine Soat Brown
CASE NUMBER 02 C 8181. DATE 1/20/2004
CASE Robin vs. Robin, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(qd) Oo Filed motion of [ use listing in “Motion” box above.]
Q) Oo Brief in support of motion due
Q) oO Answer brief to motion due. . Reply to answer briefdue__.
(4) ia) Ruling/Hearing on setfor at
(5) a Status hearing[held/continued to} [set for/re-set for] on setfor at
(6) a Pretrial conference[held/continued to] [set for/re-set for]on____—ssetfor_—s—ssaat_—.
”) a Trial[set for/re-set for]on__at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to_.__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) CO Local Rule 41.1 O FRCP41(a)(1) OO FRCP41(a)(2).
ao =f [Other docket entry} Report and Recommendation to the Honorable Robert W. Gettlemen

recommending that Defendants’ Motion to Enforce Settlement Agreement [30-1] be granted. Specific
written objections to this report and recommendation may be served and filed within 10 business days
from the date that this order is served. Fed. R. Civ. P. 72(a). Failure to file objections with the District
Court within the specified time will result in a waiver of the right to appeal all findings, factual and legal,
made by this Court in the report and recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327,
330 (7" Cir. 1995).

(il) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices
uv | Notices mailed by judge’s staff.

Notified counsel by telephone. AN a mot

Docketing to mail notices.

Mail AO 450 form. 44unog LOIM{Sid “Sn docketing deputy initials 44
ao | Copy to judge/magistrate judge. MYST snanoo

C24 wy or RY? So date riled notice

courtroom
GR deputy's
initials fake Co, GR
Datestime received id
central Clerk’s Office traling deputy initial

}



terms or require such definite terms in the acceptance that the promises and performances to be
rendered by each party are reasonably certain.” Jd. (quoting 1 Williston, Contracts §§ 38 through
48 (3d ed. 1957), 1 Corbin, Contracts §§ 95 through 100 (1963)). In short, as long as the parties
have an objective basis for determining when the other party breached the oral settlement agreement,
the contract is sufficiently definite. Wilson, 46 F.3d at 667.

Relatedly, the fact that a formal written document is anticipated but then is never created or
finalized does not preclude enforcement of a specific preliminary promise. Dawson, 977 F.2d at
374; see also Mattingly v. City of Chicago, 897 F. Supp. 375, 377 (N.D. Ill. 1995) (quoting United
States ex rel Great Lakes Plumbing & Heating Co. v. Orr Constr. Co., 560 F.2d 765, 769 (7th Cir.
1997) that an agreement is not invalid simply because it calls for the parties to reach another
agreement in the future if “the terms to be agreed upon in the future can be determined independent
of a party’s mere ‘wish, will, and desire,’ either by virtue of the agreement itself or by commercial
practice or other usage or custom”); Thermos Co. v. Starbucks Corp., No. 96 C 3833, 1998 WL
299469 at *4 (N.D. Ill. May 29, 1998) (Kocoras, J.) (“a contract can be formed before there is an
official document memorializing the deal” (quotation omitted)). However, “{w]here 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.” Trendmasters, Inc., 1996 WL 422273 at *2 (emphasis added); see also
Abbott Labs., 164 F.3d at 388-89 (agreeing that informal writings between parties can constitute a
binding settlement agreement unless the parties decide to expressly condition their deal on the
signing of a formal document, and stating that “[aJn agreement ‘in general’ with a clear

contemplation that further negotiations as to material terms will be required is simply not enough

-ll-


material terms.” Abbott Labs., 164 F.3d at 387 (emphasis added); see also Hyde Park, 942 F. Supp.
at 363 (district courts may enforce settlement agreements only if the parties have reached agreement
on all material terms) (citation omitted). Accordingly, “settlement agreements that do not explicitly
resolve ancillary issues can nonetheless be enforceable.” Porter v. Chicago Bd. of Educ., 981 F.
Supp. 1129, 1131 n. 4(N.D. IL. 1997). Similarly, “[tJhe fact that the parties le[ave] some details for
counsel to work out during later negotiations cannot be used to abrogate an otherwise valid
agreement.” Jd. (citation omitted); see also Dawson v. General Motors Corp., 977 F.2d 369, 374
(7th Cir. 1992) (stating that “agreements with open terms . . . have been held to constitute potentially
enforceable contracts,” and that “Illinois courts have not been shy about enforcing promises made
in the context of ongoing negotiations and often involving preliminary or ‘incomplete’ agreements”).

Thus, “[a] contract may be enforced even though some contract terms may be missing or left
to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding
whether the agreement has been kept or broken, there is no contract.” Academy Chicago Publishers
v. Cheever, 578 N.E.2d 981, 984 (Ill. 1991). In other words, the essential or material terms of a
contract must be sufficiently “definite” in order for a contract to be enforceable. Trendmasters, Inc.
v. Walgreen Co., No. 95 C 5379, 1996 WL 422273 at *3 (N.D. Ill. July 24, 1996) (Zagel, J.); see also
Empro Mfg., 870 F.2d at 426 (stating that parties may “approach agreement in stages, without fear
that by reaching a preliminary understanding they have bargained away their privilege to disagree
on the specifics”). Under Illinois law, “[a] contract is sufficiently definite and certain to be
enforceable if the court is enabled from the terms and provisions thereof, under proper rules of
construction and applicable principles of equity, to ascertain what the parties have agreed to do.”

Cheever, 578 N.E.2d at 983 (quotation omitted). The “offer must be so definite as to its material

-10-


conclusions of law, . . . cannot be utilized on a summary judgment motion.” 9A Charles A. Wright
etal., Federal Practice and Procedure § 2538, pp. 346-56. (3d ed. 1995). Plaintiff's affidavit is
not sufficient to raise an issue of fact. See Custom Cartage, Inc. v. Motorola, Inc, No. 98 C 5182,
1999 WL 965686 at *4-5 (N.D. Ill. Oct. 15, 1999) (Kocoras, J.) (striking portions of affidavit
because a party cannot create an issue of fact “by producing self-serving affidavits without factual

support in the record or by relying on conclusory statements in affidavits”).

Itis significant that Plaintiff also submitted Mr. Baron’s declaration, yet Mr. Baron does not
state that his authority was limited ~ either generally or in the sense that he could not make a
proposal that included a release of Plaintiff's claim for management fees. Moreover, as Defendants
point out, Mr. Baron’s declaration, unlike Plaintiff's affidavit, contains statements of fact and is in
proper form. Mr. Baron’s declaration states that he made one proposal that included “a complete
release by plaintiff of retrospective claims against the defendants related to Green Oaks,” and a
second proposal under which the claims that would not be resolved by an auction of the property
would be litigated, including “a portion of the management fees and commissions.” (Baron Decl.
419, 12.) Notably, Mr. Baron does not state that there was a misunderstanding between him and his

client as to the limits of his settlement authority.

Plaintiff's delay in raising his “lack of authority” argument further undermines its credibility.
Plaintiff waited until October 21, 2003 (the date on which he filed his Opposition), more than two
months after Mr. Rutkoff sent Defendants’ acceptance letter, to raise any question about Mr. Baron’s
authority. Mr. Baron’s August 12 letter, which specifically referred to Plaintiff's claim for
management fees, does not allude to any lack of authority to make the management fees claim part
of the settlement. Furthermore, neither of Plaintiff's attorneys raised lack of authority in any of the

-31-


presumption that his attorney had the authority to make the offer at issue and settle the case. See
Shapo, 782 N.E.2d at 824; Twin City Fire Ins. Co. v. Country Mutual Ins. Co., 23 F.3d 1175, 1182
(7th Cir. 1994) (stating that when settlement offer was made in pretrial conference in the presence

of the judge, the presumption of settlement authority was triggered).

Plaintiff has not rebutted that presumption. It is important to note that Plaintiff does not
claim that Mr. Baron was not authorized to enter into negotiations that would be binding on Plaintiff.
Plaintiff only asserts that Mr. Baron was not authorized to “waive” the management fees claim as
part of the settlement. Nowhere in Plaintiff's Opposition does Plaintiff assert that this exemption
from Mr. Baron’s apparent authority was communicated to Defendants. Significantly, Mr. Baron
did not “waive” Plaintiff's claim for management fees; the management fees and Plaintiff's other
monetary claims were the quid pro quo for Defendants’ agreement to pay the total expenses for the

auction.

Plaintiff's footnote relies solely on Plaintiff's own affidavit, which contains no facts that
might enable the court to conclude that Mr. Baron had acted without authority. (Robin Aff.) For
example, Plaintiff does not describe in his affidavit what authority he gave Mr. Baron, or what
claims were to have been released by the settlement, or how he anticipated the lawsuit could be
dismissed if the claim for management fees was unresolved. Instead, Plaintiff's affidavit contains
merely conclusory statements that “at no time did I ever authorize Steve Baron or anyone from
Mandell Menkes and Surdyk, LLC to waive my claim for property management fees relative to the
Green Oaks Shopping Center in this case,” and that if Mr. Baron “waived my claim for property
management fees. . . [he] acted without my authority, either express or implied.” (Robin Aff. { 3,
5.) Legal conclusions are not facts admissible in evidence. “[U]ltimate or conclusory facts and

-30-


And the acceptance that I made was unconditional for a reason, because I thought that
the offer was unambiguous, it was complete, it referred to the document that we both
had.

For the record, our position is that we have a final and binding agreement.

[T]he defendants’s [sic] position is that the agreement to settle is more than in
principal [sic], that we do have a final and binding agreement.

(Id. at 2-4, 7.) Mr. Rutkoff further stated that the financial information requested by Mr. Baron at
the hearing was not necessary, as a binding agreement had already been reached. (/d.) A minute
order was then entered by the court stating that ‘a settlement agreement has been reached in
principle.” (PI.’s Opp’n, Ex. C.) [Dkt. 25.]* Following the status hearing, the parties discussed the
drafting of the settlement agreement. (Rutkoff Decl. 15; Baron Decl. { 18.)

Two days later, on August 6, 2003, Mr. Rutkoff delivered a proposed settlement agreement
to Mr. Baron. (Rutkoff Decl. J 15.) Mr. Baron reviewed the agreement and, on August 12, 2003,
responded to Mr. Rutkoff with a letter identifying a number of revisions to the settlement agreement.
(Defs.’ Mot., Ex. E, Baron Aug. 12, 2003 Letter.) One of those revisions was that Plaintiff be
provided his share of the management fees for the years 2002 and 2003. (/d. at 3.)

On August 22, 2003, Mr. Rutkoff delivered a statement reflecting Green Oaks’ income and
expenses through July 2003, pursuant to Mr. Baron’s request for that financial information at the
August 4 status hearing, as well as a letter to Mr. Baron, stating: “All or substantially all of the issues
raised in your letter dated August 12, 2003 were not part of our settlement agreement, with the

possible exception of some of the terms listed in paragraph 1 [relating to the Listing Agreement].”

‘ The court noted that no decision was being suggested as to whether there was an
enforceable settlement agreement. (Tr. Aug. 4, 2003 at 7-8.)

-7-


Rutkoff sent the acceptance letter and draft settlement agreement to Mr. Baron, the parties continued
negotiating over issues such as the timing of the sale, mutual releases, and tax advantages. (Pl.’s
Opp’n at 10.) In addition, Plaintiff relies on the fact that Defendants gave Plaintiff current financial
reports concerning Green Oaks after Defendants had accepted Plaintiff's settlement offer. (/d.)

Defendants state that the issues identified by Mr. Baron in his letter responding to
Defendants’ draft settlement agreement were “nits [that Mr. Baron had] picked” and “not part of [the
parties’ ] settlement agreement” and that agreements may still be enforced when unresolved details
are left for the parties’ attorneys to work out afterwards. (Rutkoff Aug. 22, 2003 Letter at 2.) Finally,
Defendants point out that many of the details had been resolved, and there was no reason to believe
that the auction would not have proceeded pursuant to the terms on which they had reached
agreement.

Defendants are correct in noting that agreements may be enforceable even when details are
left unresolved or for the parties’ attorneys to work out afterwards. See Porter, 981 F. Supp. at 1131
n. 4 (“[t)he fact that the parties left some details for counsel to work out during later negotiations
cannot be used to abrogate an otherwise valid agreement” (quotation omitted)); Cheever, 578N.E.2d
at 984 (“[a] contract may be enforced even though some contract terms may be missing or left to be
agreed upon”). However, a purported agreement can fail if “the contractual language governing
performance is so indefinite that [the court] cannot say what adequate performance would be.” Orr,
560 F.2d at 769; see also Trendmasters, Inc., 1996 WL 422273 at *3 (stating that “[t]he essential
terms of a contract must be definite and enforceable in order for a contract to be enforceable”
(citation omitted)). Under Illinois law, an agreement is sufficiently definite and certain to be

enforceable “if the court is enabled from the terms and provisions thereof, under proper rules of

-21-


under which the sale to Hartenbower was made. Jd. at 300. Relevant to Plaintiff's argument here
is the Hartenbower court’s conclusion that the October 16, 1908 agreement, in which the heirs
agreed to sell the property by auction, “was not, however, a contract of sale.” Jd. at 299. Thus, the
statute of frauds is not applicable to the settlement agreement in this case.

Defendants further argue that if the Frauds Act were otherwise deemed to apply to the
settlement agreement here, a recent decision by the Hlinois Appellate Court holds that the statute is
satisfied by an agreement that is the product of a settlement conference conducted under the auspices
of a judge. (Defs.’ Reply at 8). The Appellate Court so held in Rose v. Mavrakis, 799 N.E.2d 469
{ll. App. 2003), as a matter of first impression. The Rose court reasoned that “[w]hen parties reach
a settlement agreement during a court-mandated settlement conference conducted in the judge’s
chambers and state the terms of that agreement in the judge’s presence, there is no danger of
enforcement of a contract which was, in fact, never made.” Id. at 478. In the Rose case, both sides
agreed that a settlement had been reached, and the judge repeated the terms in front of both parties,
although no transcript or written order memorializing the settlement was prepared. Jd at 472-73.
Here, although no agreement was reached at the July 18, 2003 settlement conference, it is undisputed
that the offer made in the presence of the court was “unconditionally” accepted two weeks later, on
July 30, 2003, and had not been withdrawn in the interim. Thus, the purpose of the statute, “to
prevent the fraudulent enforcement of asserted contracts that were in fact not made” (id. at 478), is
satisfied under the facts here. Accordingly, if the statute of frauds were applicable to the settlement
agreement at issue, it is satisfied here.

Therefore, Plaintiff's argument that the agreement is unenforceable because it violates the

-27-


Plaintiff is entitled to any of the management fees paid to Robin Realty, the real estate firm operated
by Richard Robin and Eric Kant which has managed Green Oaks for many years. (Defs.’ Mot. 42.)
In his Memorandum in Opposition to Defendants’ Motion (“Opposition”), Plaintiff states that, after
repeated demands, Richard Robin and Eric Kant finally consented to pay Plaintiff 50% of the
management fees, but have failed to do so for the years 2002 and 2003. (PI.’s Opp’n at 2.) However,
Plaintiff's cites no factual support for that statement, and such an agreement is not alleged in
Plaintiff's Amended Complaint.

Following the referral of this case for discovery supervision and settlement conference [dkt
11], this court conducted a number of in-person and telephone settlement conferences to try to
resolve this matter. (Defs.’ Mot. 93; Defs.’ Mot., Ex. 1, Decl. of Alan S. Rutkoff J 2.) During one
or more of those conferences, prior to July 18, 2003, the suggestion was made that the case might
be settled by a public auction of Green Oaks. (Rutkoff Decl. 3.) Plaintiffs attorney at that time,
Stephen Baron, stated that Plaintiff would prefer to retain the existing ownership arrangements, but
that if Plaintiff were to agree to an auction, his agreement would be conditioned on Defendants’
paying the auction expenses, (Jd. ]4.)’ Alan Rutkoff, one of Defendants’ attomeys, stated that there
was no reason for Defendants to pay all of the transaction costs. (Jd. 15.) Both attorneys stated that
they did not know what the cost would be to auction the property. (/d.) Counsel for the parties were
then ordered to serve on the other party an estimate of the costs of having the property sold by public
auction. (Order, June 17, 2003.) [Dkt 23.] On approximately June 23, 2003, Mr. Rutkoff received

a written proposal (solicited by Plaintiff) from a firm that is in the business of auctioning real estate,

? Mr. Baron withdrew from the case shortly before the filing of Defendants’ motion.
[Dkt. 26-27,]

-3-


to the claim for management fees as an example of the type of claim that would not be resolved
under the second settlement offer, when asked by the court to explain why all of Plaintiff's claims
would not be resolved by an auction of the property as the second offer set forth. (Rutkoff Decl. J
10; Baron Decl. ¥ 12.)

Plaintiff claims that the “offers” were not offers at all, but, rather, “two general concepts for
the sale of Green Oaks.” (Pl.’s Opp’n at 2.) Mr. Baron, in his declaration, describes the two
“general concepts” stated at the July 18th telephone conference as follows:

1) “A sale of the property by a public, absolute auction; payment by defendants of all
auction expenses; and a complete release by plaintiff of [the] retrospective claims
against the defendants, related to Green Oaks.” (Baron Decl. { 9.)

2) “A sale of the property by a public, absolute auction; payment of one-half of the
auction expenses by plaintiff; payment of one-half of the auction expenses by
defendants; and the continuation of the Case for the purpose of allowing Plaintiff to
prosecute his retrospective claims related to Green Oaks that, would not be resolved
by an auction of the property.” (/d.)

Defendants, in reply, assert that there is no material dispute about the offers made on July
18th because Mr. Baron’s account is not materially different from Defendants’ lawyers’
recollections. (Defs.’ Reply at 1-2.) Defendants also contend that the term “retrospective claims”
clearly encompasses Plaintiff's claim for unpaid management fees. (/d. at 7-8). According to
Defendants, there is “simply no evidentiary support” for Plaintiff's position that there was an
agreement under which Plaintiff would release his retrospective claims relating to Green Oaks while
still preserving his claim for the unpaid management fees. (/d. at 6.)

The court agrees with Defendants that the parties’ versions of the offers set forth by Mr.

Baron at the July 18, 2003 conference are not materially different. Under Plaintiffs version, Mr.

Baron’s first alternative offer included “a complete release by (Plaintiff of the retrospective claims

-14-


this court’s recollection of the offers set forth by Mr. Baron at the July 18th telephone conference.®
Accordingly, the court finds that the settlement offer accepted by Defendants included a release of
all claims related to Green Oaks and did not carve out an exception for Plaintiff's claim for unpaid

management fees.

B. Whether an enforceable agreement was reached.

Defendants argue that an enforceable agreement was reached and that Plaintiff's demand for
the unpaid management fees is an attempt to either change the parties’ agreement or back out of it
altogether. (Defs.’ Reply at 13.) As discussed above, they assert that an unambiguous offer was
tendered, an undisputed acceptance without any qualifications was made, and an intention to be
bound was displayed by the parties. (Defs.’ Mot. 4 26.)

Plaintiff responds that the parties reached only an unenforceable agreement “in principle.”
(Pl.’s Opp’n at 6-7.) In support of that contention, Plaintiff argues that a written agreement was

required to document the specific terms agreed upon (/d. at 6), and that there was no meeting of the

® Thus, an evidentiary hearing on that issue is not necessary. See Wilson, 46 F.3d at 664-
65 (affirming district court’s refusal “to conduct a redundant hearing on what [the judge]
perceived as a completed agreement achieved by the parties in open court,” and stating that a
hearing has been necessary where “the only evidence supporting an agreement was the affidavits
and briefs of one party’s counsel stating that the parties had reached an agreement outside the
presence of the court” and the court needed to “pierce through the attorneys’ conflicting
affidavits and briefs and determine if the parties had in fact reached an agreement”). Moreover,
neither party has contended that an evidentiary hearing should be held in this case, and
Defendants have argued that no purpose would be served by an evidentiary hearing. (Defs.’
Reply at 13.) See Herrnreiter v. Chicago Housing Auth., 281 F.3d 634, 637 (7th Cir. 2002) (if
the terms of the settlement are not put on the record, “the district judge or magistrate judge may
remember the terms and thus readily enforce the agreement”); Allstate, 936 F. Supp. at 529-30
(settlement agreement enforced without evidentiary hearing where the decision was based on
conduct witnessed by the court).

-16-


FINDINGS OF FACT AND CONCLUSIONS OF LAW
Factual Background ,

This lawsuit arises out of a dispute regarding commercial real estate in Oak Lawn, Illinois,
known as the Green Oaks Shopping Center (“Green Oaks”). (Am. Compl. 1.) [Dkt 5.] The title to
Green Oaks is held by a land trust. (Id. at $3.). Originally, Albert Robin, the father of Plaintiff and
one of the defendants, Richard Robin, was the sole holder of the beneficial interest of the trust. (Id.
411.) Presently, the beneficial interests of the trust are owned by Plaintiff, defendant Richard Robin,
and defendant Eric Kant. (/d. ] 16, 17) Actordingto Defendants, Richard Robin and Eric Kant have
worked in the Robin businesses for many years while Plaintiff has not been actively involved in the
Robin businesses for years. (Defs.’ Mot. J 1.) Plaintiff alleges that Richard Robin and Eric Kant
assumed primary responsibility for managing Green Oaks at least from the 1990's. (Am. Compl. 4
21.)

Plaintiff's Amended Complaint, filed on January 17, 2003, alleges six counts and is premised
on the existence of a joint venture among Plaintiff, defendant Richard Robin, and defendant Eric
Kant. (Am. Compl. { 1.) The alleged business of the venture was to own, operate and share in the
profits from Green Oaks. (/d.) Plaintiffalleges, inter alia, that Defendants improperly deducted from
the profits of Green Oaks and diverted to themselves a “management fee” of approximately 4% of
the annual revenue of Green Oaks. (/d. { 22, 23.) In the Amended Complaint Plaintiff seeks, among
other things, dissolution of the alleged joint venture, sale of the property (Green Oaks) and all
improvements thereon, and division of the sale proceeds among the three holders according to their
respective interests, including the allegedly diverted “management fees” and “commissions.” (Am.

Compl. at 8; | 40, 43.) Defendants deny that either a joint venture or partnership exists, or that

-2-


exchange for the promised payment. Jd. The fact that the legal form had not been specified was of
“no consequence.” Jd, at 667. “[T]he fact is . . . the parties had an objective basis for determining

lk
when either party had breached the oral settlement agreement. No more is required to overcome a
mie
challenge to a contract’s enforceability due to alleged indefiniteness.” dd.
wis

Here, the only real dispute raised by Plainti rm the nature of the release is whether the
i , \
|

i I
“complete release of all retrospective claims agaii defendants related to Green Oaks,” as

a
expressed by Mr. Baron (Baron Decl. 79), included th Wheabe of the management fees claim, and,

Pid ali lad : i
as discussed above, it is clear that it did. I yeas

C. The statute of frauds is not applicable here.

Plaintiff asserts that even assuming a settlement agreement between the parties was formed,
it cannot be enforced because it violates the statute of frauds. (Pl.’s Opp’n at 12-13.) Citing
Hartenbower v. Uden, 90 N.E. 298 (Ill. 1909), Plaintiff argues that the settlement agreement is
unenforceable without a written contract signed by either Plaintiff or his attomey because the
agreement “concems the sale of Green Oaks.” (Pl.'s Opp’n at 12-13.)

The Illinois version of the statute of frauds, the Frauds Act, provides in part:

No action shall be brought to charge any person upon any contract for the sale of

lands, tenements or hereditaments or any interest in or concerning them, for a longer

term than one year, unless such contract or some memorandum or note thereof shall

be in writing , and signed by the party to be charged therewith, or some other person

thereunto by him lawfully authorized in writing, signed by such party.

740 Ill. Comp. Stat. § 80/2.
As Defendants point out, Plaintiff is simply wrong in arguing that any contract that

“concerns” a sale of property must be in writing. Section 2 of the Frauds Act is applicable only to

-25-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
STEPHEN H. ROBIN, )
Plaintiff, ) Cause No. 02 C 8181
)
v. ) Judge Robert W. Gettleman
) Magistrate Judge Geraldine Soat Brown
RICHARD J. ROBIN, et al., )
Defendants. )

To: Honorable Robert W. Gettleman,
United States District Judge
ORT Ci A TIO)

Geraldine Soat Brown, United States Magistrate Judge

This case comes to be heard on the Motion to Enforce Settlement. Agreement filed by
Defendants Richard J. Robin, Eric C. Kant, Robin Realty and Management Company, and Robin
Construction Corporation (collectively, “Defendants”). [Dkt 30.] Defendants request that a
settlement agreement that they claim was reached with Plaintiff Stephen Robin (‘Plaintiff’) be
enforced and that the case be dismissed with prejudice. The District Judge referred Defendants’
motion to this court. [Dkt 31.] The parties submitted memoranda of law and exhibits including
affidavits and excerpts of Plaintiff's deposition transcript. Oral argument was heard on the motion.

For the following reasons, this court respectfully recommends that Defendants’ motion be granted.'

' This ruling takes the form of a Report and Recommendation because the outcome of granting
Defendants’ motion is the termination of Plaintiff's claims. 28 U.S.C. § 636(b)(1)(A) and (C).



them, including a release of a// of Plaintiff's claims and dismissal of the lawsuit. (Rutkoff July 30,
2003 Letter) (emphasis added), Plaintiff testified that, after he received Mr. Rutkoff’s letter, he told
Mr. Baron that there were “so many loose ends,” such as “the understanding of fees or any financial
information,” “items pertaining to closing costs,” and “how much cash is on hand.” (Robin Dep. at
264-65, 267.) He also testified that Mr. Baron expressed those “open items” in the August 12 letter.
(id. at 267.) Yet, as discussed above, Mr. Baron’s responsive letter of August 12, 2003 does not
refer to a lack of authority to negotiate the management fees claim. Plaintiff's position is further
undermined by his testimony that, even as of the date of his deposition, October 23, 2003, he was
unaware that Mr. Baron communicated more than one offer. (/d. at 270.) Plaintiff's deposition was

taken after the filing (on October 21, 2003) of Plaintiff's Opposition, which included Mr. Baron’s

declaration expressly setting forth the two offers that he had communicated.

No evidentiary hearing is necessary on this point because Plaintiff has had an opportunity to
present evidence and has failed to present a genuine question on this point.'’ See Degerman v. S.C.
Johnson & Son, Inc., 875 F. Supp. 560, 562 (E.D. Wis. 1995) (“I do not believe that an evidentiary
hearing would assist the court in resolving this matter. The parties have already submitted affidavits
from [the parties” attorneys]. It is unlikely that an evidentiary hearing would elucidate facts beyond

those which the parties have already presented in their affidavits.”).

Plaintiff's arguments illustrate a point made by the Seventh Circuit in PoAl: “Some litigants

in pursuing settlement of their claims hold the belief that they can change their mind at any time

‘7 Defendants were ordered to include in the deposition excerpts attached to their Reply
any portions of Plaintiff's deposition that Plaintiff's counsel designated. (Order, Oct. 28, 2003.)
[Dkt 38.] Plaintiff has not stated that any designated portions were omitted.

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statute of frauds is without merit,'S

Dd. Mr. Baron had authority.

Ina one-line footnote in his Opposition, Plaintiff states: “Baron never had the authority from
[Plaintiff] Stephen to waive [the] claim [for management fees}, Exhibit A-Affidavit of Stephen
Robin.” (P].’s Opp’n at 3 n. 2.) If Plaintiff was attempting to assert lack of authority as a basis for
denying Defendants’ motion, Plaintiff provided no legal authority or analysis whatsoever to support
that argument. Under the case law in this Circuit, Plaintiff's footnote “argument” need not even be
considered by the court. See, e.g., Zl Ranchito, Inc. v. City of Harvey, 207 F. Supp. 2d 814, 822
{N.D. Ill. 2002) (court may treat argument raised in footnote as waived ) (citing Dresser Indus., Inc.,
vy. Gradall Co., 965 F.2d 1442, 1448 (7th Cir.1992)); AAR Intl., Inc. v. Vacances Heliades S.A., 202
F, Supp. 2d 788, 796 n. 2 (N.D. Ill. 2002) (same); Standard Bank & Trust Co. v. Village of Orland
Hills, 891 F. Supp. 446, 449 n. 2 (N.D. Ill. 1995) (same). See also Rose v. United States, 929 F.
Supp. 305, 309 (N.D. Ill. 1996) (stating that “the paucity of argument on this issue in her response
brief essentially waives the claim”) (citing Bakalis v. Golembeski, 35 F.3d 318, 326 n. 8 (7th Cir.
1994)). Moreover, the fact that the suggestion was raised only in a footnote speaks volumes about
its merit and credibility. If Mr. Baron had made an offer without Plaintiff's authority, Plaintiff would

have made that argument the centerpiece of his opposition brief, instead of raising it only in a

'S It is thus unnecessary to reach the other arguments made by Defendants as to why the
statute of frauds is not applicable in this case: first, that the parties hold their interests in Green
Oaks as tenants in common and an oral agreement to divide interests among tenants in common
is binding without a written agreement (Defs.’ Reply at 8-9); and, second, that the interests of
partners in property owned by a partnership is considered personalty that is not subject to the
statute of frauds for the purpose of settling a partnership’s affairs. (Id. at 9.)

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to form ties that bind”).

Finally, it is important to note that “a mere change of mind is not sufficient grounds for
setting aside a settlement agreement.” Porter, 981 F. Supp. at 1132 (quoting Moore v. Cooper, No.
94 C 788, 1996 WL 207187 at *2 (N.D. Ill. Apr. 24, 1996) (Lindberg, J.)). As the Seventh Circuit
has stated, “[a] party to a settlement cannot avoid the agreement merely because he subsequently
believes the settlement insufficient .... Ifa party to a... suit who has previously authorized a
settlement changes his mind . . . , that party remains bound by the terms of the agreement.” Glass

v. Rock Island Refining Corp., 788 F.2d 450, 454-55 (7th Cir. 1986) (quotation omitted).

I. Issues In Dispute Here

Defendants argue that a binding and enforceable agreement exists in this case because there
was an unambiguous offer made in the presence of the court, an undisputed acceptance without any
conditions or qualifications attached to it, and conduct by the parties indicating an intention to be
bound. (Defs.’ Mot. J 26.) Plaintiff, in response, asserts that Mr. Baron never made an offer
involving a release of Plaintiff's claim for management fees, as Defendants contend he did. (P1.’s
Opp’nat 2-3.) Plaintiff next argues that no enforceable agreement was reached in this case because
there was only an agreement “in principle.” (/d. at 6-12.) In support of that contention, Plaintiff
argues that a detailed written settlement agreement was required to document the specific terms
agreed on by the parties, which never occurred, and there was no meeting of the minds between the
parties. (/d.) Plaintiff further argues that any oral agreement reached between the parties would be
unenforceable in any event as it would violate the statute of frauds. (/d. at 12-13.) In a footnote in

the factual background section of his brief, Plaintiff states that if Mr. Baron made an offer involving

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against [D]efendants related to Green Oaks.” (Baron Decl. | 9.) The only difference from
Defendants’ position is that Plaintiff contends that Mr. Baron “always reserved the management fee
issue.” (PI.’s Opp’n at 3.) Yet, Plaintiff does not provide any evidence that Mr. Baron “reserved”
Plaintiff's claim for management fees. Plaintiff does not contend that Mr. Baron expressly stated,
in conjunction with the first offer, that Plaintiff was reserving the claim for unpaid management fees
set forth in the Amended Complaint. Nor does Plaintiff deny that Mr. Baron specifically identified
Plaintiff's claim for management fees as an example of the type of claim that would continue to be
litigated under the second settlement offer, in response to the court’s specific question. Likewise,
Plaintiff does not explain why the term “retrospective claims” would not include Plaintiff's claim
for management fees.” Plaintiff asserts, citing paragraph 12 of Mr. Baron’s declaration, that Mr.
Baron never expressly stated that he was releasing Plaintiffs claim for unpaid management fees.
(Pl’s Opp’n at 3.) That paragraph of Mr. Baron’s declaration does not support Plaintiff's argument.
On the contrary, by identifying the claim for management fees as the type of claim that would not
be released under the second alternative, Mr. Baron communicated Plaintiff's intention that the claim
for management fees was one that would be released under the first alternative in exchange for

Defendants’ bearing the expenses of the auction. Significantly, that conclusion is in accordance with

7 Plaintiff suggests--again in a footnote--that the management fees were a “non-issue”
because Defendants had previously agreed to pay Plaintiff his share. (P1.’s Opp’n at 3 n.1.)
However, there is no factual support in the record for such an agreement, and no such agreement
is mentioned in Plaintiff Stephen Robin’s affidavit. (P1.’s Opp’n, Ex. B, Aff. of Stephen Robin.)
Furthermore, as discussed above, the Amended Complaint filed in January 2003 specifically
alleges that Defendants have been diverting management fees from the venture without
Plaintiff's knowledge or consent, but does not allege any subsequent agreement to pay Plaintiff a
share of those fees. (Am. Compl. fj 23, 27.)

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