Trask v. Bish et al
Filing
74
OPINION AND ORDER granting 59 Motion to Enforce Settlement Agreement; The Court HEREBY FINDS that Plaintiff entered into an enforceable settlement agreement with Defendants Joan Bish and Horseshoe Casino. 47 Motion to Voluntarily Dismiss and 60 Motion to Withdraw motion to dismiss are DENIED AS MOOT. This case REMAINS PENDING against Defendants, Edgar Rodriguez and Antwan Sullivan. Signed by Judge Rudy Lozano on 11/19/13. cc: Trosk (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LOIS TRASK,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
JOHN BISH, et al.,
Defendants.
CAUSE NO. 2:13-CV-1
OPINION AND ORDER
This matter is before the Court on the: (1) “Plaintiff’s
Motion to Voluntarily Dismiss Defendants Joan Bish and Horseshoe
Casino From This Case,” filed by pro se Plaintiff, Lois Trask, on
September 16, 2013 (DE #47); (2) “Defendants, Horseshoe Casino and
Joan Bish’s Motion to Enforce Settlement Agreement,” filed by
Defendants, Horseshoe Casino and Joan Bish, on September 27, 2013
(DE #59); and (3) “Plaintiff’s Motion to Withdraw Her Motion
Requesting
Permission
to
Dismiss
Defendant’s
[sic.]
Bish
and
Horseshow [sic.] Casino From This Case Filed on September 16,
2013,” filed by pro se Plaintiff, Lois Trask, on October 2, 2013
(DE #60).
Defendants Horseshoe Casino and Joan Bish’s Motion to
Enforce Settlement Agreement (DE #59) is HEREBY GRANTED. The Court
HEREBY FINDS that Plaintiff entered into an enforceable settlement
agreement
with
Defendants
Joan
Bish
and
Horseshoe
Casino.
Plaintiff is HEREBY ORDERED to execute the release attached to
Defendants motion as Exhibit C (DE #59-3) which memorializes the
enforceable
settlement
agreement.
The
Motion
to
Voluntarily
Dismiss (DE #47) and Motion to Withdraw the motion to dismiss (DE
#60) are DENIED AS MOOT.
This case REMAINS PENDING against
Defendants, Edgar Rodriguez and Antwan Sullivan.
BACKGROUND
Defendants, Horseshoe Hammond, LLC and Joan Bish (hereinafter
“Horseshoe
and
Bish”)
filed
the
instant
Settlement Agreement on September 27, 2013.
Motion
to
Enforce
Defendants seek to
enforce an alleged oral agreement made on September 13, 2013,
between pro se Plaintiff and attorney Stacy Vasilak, counsel for
Horseshoe and Bish, to settle the case against Horseshoe and Bish
for $100 with a check to be issued to Trask’s alleged charitable
organization, the Trask Foundation.
Trask filed an objection,
arguing that there was never an agreement or binding contract. (DE
#65.)
Defendants then filed a reply in support (DE #66) and
requested a hearing on this matter.
The Court held a hearing on November 12, 2013, on the instant
Motion to Enforce Settlement Agreement (DE #59).
Attorney Vasilak
testified under oath at this proceeding, Trask testified, and Trask
called two other witnesses to testify on her behalf.
A lot of
extraneous information was presented to the Court at the hearing
(including
facts
like
who
offered
2
who
mints
at
Plaintiff’s
deposition), but the Court will attempt to recap only the facts
that are pertinent to the instant motion to enforce settlement.
Ms. Vasilak’s testimony at the hearing was consistent with her
explanation of the facts in her motion and Exhibit A (DE #59-1),
a letter dated September 19, 2013, which sets forth in writing Ms.
Vasilak’s understanding of Plaintiff’s oral settlement agreement
consummated with Trask on Friday, September 13, 2013.
The day
after Trask’s lengthy deposition, September 13, 2013, Trask called
Ms. Vasilak twice before she had even arrived at the office. Trask
told the Court during the hearing that she called Ms. Vasilak that
morning and told her secretary that she would like to settle the
matter.
Ms. Vasilak testified that when she arrived at the office on
Friday, September 13, 2013, she received the message and called
Trask.
Trask told her she had dreamt of her the previous night and
realized that her clients never touched her and she wanted to
dismiss the claims against Horseshoe and Bish. Then Trask asked if
her
clients
were
willing
to
revoke
the
eviction
(apparently
Horseshoe has a list and because of the incident alleged in the
complaint where Horseshoe believed Trask stole $20, Trask was put
on a list and not allowed to reenter the casino), and whether her
clients would provide dinners for her and 4 other senior citizens
for a month on Fridays (Trask alleges in her complaint that she is
the
founder
of
the
Trask
Foundation
3
which
transports
senior
citizens to the casino for a meal).
(Compl., pp. 1-2.)
Ms. Vasilak called her client, then immediately called Trask
back and told her they were not willing to give the seniors free
dinners, but they were willing to pay her $100 to settle the case.
Ms. Vasilak told Trask she would have to provide her social
security number to fill out the paperwork, and Trask stated she did
not want to provide her social security number, rather, she asked
if they could pay the check to the Trask Foundation and use its tax
ID number.
Trask also asked if the client would be willing to pay
any more money.
Again, Ms. Vasilak called her client, then called Trask back
for a third time that day.
Ms. Vasilak told her the client was
willing to pay the money to the Trask Foundation, but they were not
willing to pay any additional money.
Additionally, Ms. Vasilak
told Trask that the client could not lift her “eviction,” that
Trask would need to write a letter to the casino making this
request.
Ms. Vasilak testified at that time, Trask said ok, and
they reached an agreement.
Trask agreed to a $100 settlement
payable to the Trask Foundation, she would sign off on a release,
and dismiss Horseshoe and Bish from the case.
Ms. Vasilak then left the office around 4:30 p.m. that Friday
and did not return until Monday morning.
On Monday morning, Ms.
Vasilak played a voicemail message (the recording states it was
left at 5:19 p.m. Friday September 13, 2013), from Trask stating,
4
“I think I’ve had a little change of heart here” and asking Ms.
Vasilak to call her.
(Hearing Defs.’ Ex. D.)
These events are captured in a letter written by Ms. Vasilak
to Trask dated September 19, 2013 (Ex. A; DE #59-1).
Ms. Vasilak
recaps the negotiations, then states:
You then accepted the offer of $100. You have now
attempted to back out of the agreement.
You
indicated in a voicemail message that you had a
change of heart.
You entered into a binding
agreement to settle the case.
At this time, I
could file a Motion to Enforce Settlement with the
Court since we had both agreed to settle the case
for $100.
However, it would cost my client
additional money to draft the motion and appear in
court. Rather than incur additional attorney fees,
my client is willing to extend a one-time offer of
$250 to settle the case. . . . If this is not
acceptable, please be advised that I will likely
file the Motion to Enforce Settlement with the
Court requesting that the Court order you to comply
with your prior agreement to settle this matter
against my clients and possibly request sanctions.
Id.
In response, Ms. Trask wrote a letter back to Ms. Vasilak
dated September 24, 2013 (Ex. B; DE #59-2).1
Trask’s letter
states, in pertinent part:
As you know you called me back and stated that your
clients could not do anything with the postings nor
could they remove the eviction. You also stated
that your clients were willing to offer $100.00 to
the Trask Foundation, and agree [to] use the
T.r.a.s.k Foundation’s tax exempt number for a tax
write off of $100.00. We both agreed and I had a
change of heart and I called you within 24 hours.
1
At the end of the letter, Trask included an “affidavit”
stating “the above information in this settlement agreement and
letter is the truth and nothing but the truth,” signed it, and
had it sworn before a notary. (Ex. B; DE #59-2.)
5
According to my knowledge any agreement can be
legally undone within 3 days.
Id. (emphasis added).
Trask did not agree to the final $250 offer
instead of filing a motion to compel, but instead tried to change
the amount to $550.
(Id., p. 2.)
Ms. Vasilak then filed the
instant motion to compel the oral settlement agreement for $100.
During the hearing, Trask also testified.
She believed the
fact that Ms. Vasilak never sent a settlement check was telling.
Ms. Vasilak stated she did not send the check because Trask did not
execute any release and Trask was trying to back out of the deal.
She also questioned Ms. Vasilak that if there was an agreement for
$100, why would she then offer to settle for $250, and Ms. Vasilak
answered that she extended the last offer of $250 because it would
cost the client even more to file the instant motion to enforce the
$100 settlement agreement.
Trask also claims that she told Ms.
Vasilak during the third settlement conversation that an agreement
was never finalized, rather, Trask was going to look into writing
a letter to the casino about the eviction and then get back to Ms.
Vasilak.
Finally,
Trask
also
argued
that
her
letter
dated
September 24, 2013, stated a settlement agreement was made with the
Trask Foundation, but that an agreement was never reached with her.
DISCUSSION
In this motion, Horseshoe and Bish’s attorney asks the Court
to enforce the oral settlement agreement that she believes was
6
entered into by Trask to settle the case against Horseshoe and Bish
for $100, to be made payable to the Trask Foundation.
The district court “has inherent authority to enforce a
settlement agreement reached in a case pending before it.”
Allen
v. Dana, No. 1:10-cv-281 PPS-RBC, 2011 WL 3163232, at *2 (July 26,
2011) (quoting Carr v. Runyan, 89 F.3d 327, 331 (7th Cir. 1996)).
An agreement to settle claims in a federal court is enforceable
“just like any other contract.”
Lynch, Inc. v. SamataMason Inc.,
279 F.3d 487, 489 (7th Cir. 2002).
State law governs whether a
contract to settle the case was made, therefore, Indiana law
applies here.
Dillard v. Starcon Int’l Inc., 483 F.3d 502, 506
(7th Cir. 2007) (holding any uncertainty over whether federal or
state law applies to the enforcement of the settlement of a federal
suit has been “dispelled; it is state law”).
“Under
enforceable.”
Indiana
law,
an
oral
agreement
is
generally
Allen, 2011 WL 3163232, at *2 (quoting Zimmerman v.
McColley, 826 N.E.2d 71 (Ind. Ct. App. 2005)).
The Supreme Court
of Indiana has stated that:
Indiana strongly favors settlement agreements. And
it is established law that if a party agrees to
settle a pending action, but then refuses to
consummate his settlement agreement, the opposing
party may obtain a judgment enforcing the
agreement.
Georgos v. Jackson, 790 N.E.2d 448 (Ind. 2003) (citations omitted).
Settlement agreements are governed by general contract principles,
and an “offer, acceptance, plus consideration make up the basis for
7
a contract.”
Zimmerman, 826 N.E.2d at 76. If one party “transmits
a clear and unambiguous settlement offer which is accepted by the
other
party,
agreement.”
the
parties
have
reached
a
binding
settlement
Pohl v. United Airlines, Inc., 110 F.Supp.2d 829, 837
(S.D. Ind. 1999) (quotation omitted).
Determining whether there
has been a meeting of the minds “is a factual matter to be
determined from all the circumstances,” and the Court should refer
“not
to
the
parties’
manifestation of it.”
subjective
intents
but
their
Zimmerman, 826 N.E.2d at 77.
outward
Finally, the
Seventh Circuit has stated that “[s]ome litigants in pursuing
settlement of their claims hold the belief that they can change
their mind at any time before they actually sign the settlement
agreement.
As this case illustrates, that perception is often
unfounded in the law.”
Pohl v. United Airlines, Inc., 213 F.3d
336, 337 (7th Cir. 2000) (affirming district court’s enforcement of
settlement).
The Court finds that Ms. Vasilak and Trask did indeed enter
into a settlement agreement on September 13, 2013.
Following
several rounds of telephone conversations, Ms. Vasilak offered $100
to release the claims against her clients, Horseshoe and Bish, and
the offer even included the technical and negotiated detail that
the check be made payable to the Trask Foundation.
The offer was
accepted by Ms. Trask orally on the telephone and this Court finds
that there was a meeting of the minds. Although Ms. Trask disputes
8
that she accepted the offer, this Court finds the hearing testimony
of Ms. Vasilak, an attorney and officer of the Court, to be
consistent and credible.
Additionally, Ms. Vasilak’s letter dated
September 19, 2013, just days after the events, consistently sets
forth the negotiations and specifically states that at the end,
Trask “then accepted the offer of $100.”
(Ex. A; DE #59-1.)
In
her own sworn letter, written on September 24, 2013, Trask states
that “[w]e both agreed” to $100 payable to the Trask Foundation’s
tax exempt number and that then she “had a change of heart and
[Trask] called [Ms. Vasilak] within 24 hours.”
(Ex. B; DE #59-2.)
Indeed, the voicemail message left by Trask on Ms. Vasilak’s phone
Friday, September 13, 2013, at 5:19 p.m. states that Trask had a
change of heart.
Trask’s change of heart after she had agreed to the oral
settlement does not undo the agreement. A party who has previously
authorized a settlement remains bound by its terms even if she
changes her mind.
454-55
(7th
Cir.
Glass v. Rock Island Ref. Corp., 788 F.2d 450,
1986)
(affirming
enforcement
of
settlement
agreement). As such, a party’s later unhappiness with a settlement
is “neither here nor there.”
Allen, 2011 WL 3163232, at *2.
“As long as the person receives something of value in exchange
for her own promise or detriment, the courts will not inquire into
the adequacy of consideration.”
Baptist v. City of Kankakee, 481
F.3d 485, 491-92 (7th Cir. 2007) (quoting Wagner v. NutraSweet Co.,
9
95 F.3d 527, 532 (7th Cir. 1996)).
Here, Plaintiff agreed to
receive $100, made payable to the Trask Foundation, as she had
requested, which is sufficient consideration.
settlement
cannot
avoid
the
agreement
“[A] party to a
merely
because
he
subsequently believes the settlement is insufficient.”). Taylor v.
Gordon Flesch Co., 793 F.2d 858, 862 (7th Cir. 1986).
In sum, from the communications between the parties and based
upon the evidence presented at the hearing, there was an offer,
acceptance, and consideration existed.
Additionally, the Court
finds that the settlement was knowingly and voluntarily made by
Plaintiff.
There is no evidence of fraud or duress.
A meeting of
the minds existed between the parties and they agreed on the
essential terms of the settlement - that $100 would be payable to
the Trask Foundation in exchange for Trask releasing her claims
against Horseshoe and Bish.
Once the agreement was reached on
September 13, 2013, Trask’s later change of heart and regrets
cannot avoid the agreement - they are irrelevant and do not affect
the validity and enforceability.
Trask remains bound by the terms
of the enforceable settlement agreement.
CONCLUSION
Defendants Horseshoe Casino and Joan Bish’s Motion to Enforce
Settlement Agreement (DE #59) is HEREBY GRANTED.
FINDS
that
Plaintiff
entered
into
10
an
The Court HEREBY
enforceable
settlement
agreement
with
Defendants
Joan
Bish
and
Horseshoe
Casino.
Plaintiff is HEREBY ORDERED to execute the release attached to
Defendants motion as Exhibit C (DE #59-3) which memorializes the
enforceable
settlement
agreement.
The
Motion
to
Voluntarily
Dismiss (DE #47) and Motion to Withdraw the motion to dismiss (DE
#60) are DENIED AS MOOT.
This case REMAINS PENDING against
Defendants, Edgar Rodriguez and Antwan Sullivan.
DATED: November 19, 2013
/s/ RUDY LOZANO, Judge
United States District Court
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?