Thomas, Darreyll v. Reese, Michael et al

Filing 163

Transmission of Notice of Appeal, Orders, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 161 Notice of Appeal. (Attachments: # 1 Order #138, # 2 Order #158, # 3 Judgment, # 4 Docket Sheet) (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARREYLL T. THOMAS,
ORDER
Plaintiff,
v.

13-cv-597-wmc

MICHAEL REESE, et al.,
Defendants.
Plaintiff Darreyll T. Thomas is proceeding on claims that deputies at the Dane
County Jail used excessive force, battered and retaliated against him after he refused to sleep
on a top bunk.

Before the court is a motion from defendants to enforce a settlement

agreement (dkt. #146), which the court will now grant, resulting in the dismissal of this
lawsuit.

BACKGROUND
After both sides moved for summary judgment in February 2016, it became clear that
there were disputed issues of fact with respect to plaintiff’s excessive force claim that would
require a trial. On May 10, 2016, therefore, this court recruited counsel Patrick Koenen of
the law firm of Hinshaw & Culbertson in Appleton, Wisconsin, to represent him pro bono for
the remainder of the case. The court also suggested that the parties consider mediating the
case, as both sides had expressed early interest in doing so.
After a Preliminary Pretrial Conference was held in July 2016, the court heard nothing
further from the parties until November 10, 2106, when plaintiff’s recruited counsel moved
to withdraw on the ground that plaintiff no longer wished counsel to represent him. (Dkt.
#143.) Shortly thereafter, defendants filed a motion to enforce a settlement agreement that

was purportedly reached during a formal mediation between defendants, plaintiff and their
respective counsel, including Hinshaw & Culbertson for plaintiff.

Hearing nothing from

plaintiff in response to counsel’s motion to withdraw, the court granted that motion and
ordered plaintiff to respond, on his own, to defendants’ motion to enforce the settlement
agreement. Plaintiff subsequently filed his opposition brief, and defendants filed a reply,
making the motion to enforce the settlement fully briefed and ready for decision.
The parties’ submissions confirm that the parties mediated this matter on October 10,
2016, at the Kettle Moraine Correctional Institution. Plaintiff attended in person, as did his
recruited attorney, Patrick Koenen. A representative of defendants’ insurer and defendants’
counsel also attended. At the conclusion of the mediation, the parties signed a “mediation
agreement.”
That mediation agreement states as follows:
The parties have agreed to engage in mediation of their dispute with James R. Jansen
as mediator. Pursuant to that mediation, the following agreement has been reached:
1.

Payments will be made as follows: The defendants will pay $25,000 to the
trust account of Hunshaw & Culbertson.

2.

The payments will be made on or before 10/31/2016.

3.

Subrogation of claims will be handled as follows: The defendants will be
responsible for healthcare or bills or claims for reimbursement regarding care
rendered to the plaintiff on 7/28/12.

4.

The payment described above is intended to be inclusive of all costs,
disbursements and attorneys’ fees whether compensatory, liquidated and/or
punitive.

5.

[left blank]

6.

The

parties will execute necessary closing documents, including an
appropriate release and any necessary documents to terminate any
pending litigation.

2

7.

The plaintiff is not and never has been a Medicare beneficiary.

(Dkt. #148-1.)

Plaintiff, plaintiff’s attorney, defendants’ representative and defendants’

attorney all signed this agreement.
Shortly thereafter, defense counsel mailed plaintiff a release for his signature and a
proposed stipulation and order for dismissal. On October 18, 2016, defense counsel also
produced a check for the full settlement amount and mailed it to plaintiff’s attorney.
Plaintiff now declines to sign the release or stipulate to dismissal.

OPINION
A settlement agreement is a contract between the parties to the litigation, and as such,
issues of “formation, construction, and enforcement of settlement agreements” are governed
by state contract law. Beverly v. Abbott Labs., 817 F.3d 328, 333 (7th Cir. 2016); Carr v.
Runyan, 89 F.3d 327, 331 (7th Cir. 1996). Because the mediation agreement at issue here
was formed in Wisconsin, that state’s law applies. Even so, the question whether to enforce a
settlement agreement in a pending case is generally committed to the district court’s
discretion. Wilson v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995) (“[A] district court possesses
the inherent or equitable power summarily to enforce an agreement to settle a case pending
before it. . . . [T]he abuse of discretion standard is the proper guide for our review of a
district court's decision to enforce a settlement agreement.”).
Under Wisconsin law, “a settlement agreement is a contract by nature”; thus, “a valid
settlement agreement requires an offer, an acceptance and consideration all resulting from a
meeting of the minds.” Am. Nat. Prop. & Cas. Co. v. Nersesian, 2004 WI App 215, ¶ 16, 277
Wis. 2d 430, 441, 689 N.W.2d 922, 927. Additionally, Wisconsin has a statute making

3

settlement agreements that occur out of court enforceable only if they are “in writing and
subscribed by the party to be bound thereby or that party’s attorney.” Wis. Stat. § 807.05.
When the terms of a settlement agreement are “plain and unambiguous,” courts must
“construe the contract as it stands.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶
14, 257 Wis. 2d 421, 432, 651 N.W.2d 345, 351. Moreover, “only mutual mistake or fraud
will excuse a party from the terms of an executed, unambiguous written agreement.” Nauga,
Inc. v. Westel Milwaukee Co., Inc., 216 Wis. 2d 306, 315, 576 N.W.2d 573 (Ct. App. 1998).
See also In re Estate of Johnson, 2006 WI App 19, ¶¶ 7-13, 289 Wis. 2d 100, 709 N.W.2d 88
(enforcing settlement agreement because it was in writing and subscribed with attorney’s
typed initials).
Here, defendants argue that the mediation agreement should be enforced because it is
clear, unambiguous, in writing, and signed by all of the parties.

The court agrees.

The

mediation agreement satisfies all of the requirements under Wisconsin law for an enforceable
settlement agreement.

Although plaintiff apparently has not yet signed his release, the

mediation agreement itself confirms that all parties involved understood the essential
elements of the settlement agreement, including that execution of the outstanding release
form and stipulation of dismissal were simply obligations that plaintiff had to perform to
fully satisfy his obligations under the mediation agreement.
None of plaintiff’s arguments against enforcement of the mediation agreement
undermine its validity. Specifically, plaintiff argues that the settlement agreement should not
be enforced because: (1) the mediator improperly warned him about the risks of going to
trial and about this court’s supposed lack of experience with personal injury cases; (2) the
court improperly denied him leave to proceed on claims against high-ranking supervisory

4

officials; (3) the court should have granted his motion for summary judgment; and (4) he was
denied access to video footage of the incident.1
As a threshold matter, plaintiff was well aware of each of these circumstances before he
signed the mediation agreement.

Thus, plaintiff cannot now claim that he received new

information that changed his decision to accept the settlement terms. Moreover, none of
these four arguments suggest that the settlement agreement was the product of mistake, fraud
or coercion. Nor is there anything improper about the statements plaintiff attributes to the
mediator, as mediators frequently and appropriately point out to litigants the risks of a trial,
as well as the history and/or temperament of the applicable trial judge.
Plaintiff’s remaining arguments are based on disagreements with previous court
decisions, but plaintiff is simply mistaken in suggesting that by undoing the settlement
agreement the court will (1) permit him to add new claims and defendants to the case, or (2)
grant his motion for summary judgment. Rather, if the court were to void the settlement
agreement, the result would be that this case would proceed to trial as scheduled and that
plaintiff would have to present the case to a jury on his own, without the assistance of an
attorney.

Although plaintiff would likely then have access to the video footage of the

incident, the court can conceive of no reason why this would be a valid basis for voiding the
settlement agreement.
In sum, plaintiff agreed to settle this case for $25,000. The settlement agreement is
not only valid and enforceable, but appears fair under all the circumstances of this lawsuit.
Accordingly, the court will exercise its discretion to enforce it.

Although plaintiff was not given a personal copy of the video footage, his recruited counsel
received a copy of the video footage. The parties’ submissions also suggest that the mediator
viewed the video footage.
1

5

ORDER
IT IS ORDERED that defendants’ “motion to enforce settlement agreement” (dkt.
#146) is GRANTED and plaintiff’s claims are DISMISSED WITH PREJUDICE in
accordance with the terms of the mediation agreement signed by the parties. The clerk of

court is DIRECTED to enter final judgment and close this case.
Entered this 3rd day of April, 2017.

BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

6