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06/30/89 Sharon Kazale, Indiv. and v. Kar-Lee Flowers Et Al.

June 30, 1989

SHARON KAZALE, INDI

v.

AND AS MOTHER AND NEXT FRIEND OF JEFFREY KAZALE, A MINOR, PLAINTIFF-APPELLANT,

v.

KAR-LEE FLOWERS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

541 N.E.2d 219, 185 Ill. App. 3d 224, 133 Ill. Dec. 382 1989.IL.1066

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Sharon Kazale, brought suit against defendants, Kar-Lee Flowers and Christopher Musial, for damages suffered from a car accident. She appeals from an order of the trial court enforcing a settlement of the suit. She raises three issues: (1) whether the court erred in enforcing the settlement agreement where defendant failed to state a cause of action for enforcement and where defendant failed to prove that plaintiff's attorney had authority to settle; (2) whether the court erred in denying plaintiff's motion for reconsideration; and (3) whether the court erred in not allowing plaintiff to testify in support of her motion to reconsider. For the reasons stated below, we reverse.

The facts adduced at the hearing on defendant's motion to enforce a settlement are summarized as follows.

Defendant's attorney testified that, in October 1987, he attended a pretrial of the case after which plaintiff's attorney demanded $3,500. In January 1988, defendant's attorney began settlement negotiations with another attorney from the same law office representing plaintiff. He offered plaintiff's attorney $1,800 to settle. Plaintiff's counsel replied that the amount was insufficient. On January 12, plaintiff's attorney demanded $2,200, and defendant's attorney agreed to pay this amount. This agreement was made over the phone. On January 14, defendant's attorney sent plaintiff's attorney a letter confirming that the case was settled and sent releases to be signed by plaintiff. On January 15, the case was up for hearing on defendant's motion for summary judgment. Defendant advised the court the case was settled. No one representing plaintiff appeared at this hearing. On January 29, defendant's counsel received a phone call from plaintiff's attorney stating that plaintiff would not sign the release. Defendant's attorney testified that plaintiff's attorney never stated when he agreed to the settlement that he was acting without plaintiff's authority or that the agreement was contingent on his client accepting.

Plaintiff's attorney, called to testify by defendant, testified he told defendant's attorney that the settlement was contingent on plaintiff agreeing to it. Plaintiff's attorney admitted receiving defense counsel's January 14 letter confirming the settlement agreement, which did not state that the agreement was contingent on plaintiff's acceptance. He did not respond to this letter until January 29 because he was trying to get his client to agree to the offer. He testified also that another attorney from the law office representing defendant called on January 15 to inquire about the case. Plaintiff's attorney told him there was a tentative settlement subject to plaintiff accepting and signing the release.

After the testimony of plaintiff's and defendant's attorneys, defendant rested, and plaintiff presented no evidence. The trial court granted defendant's motion to enforce the settlement, finding that plaintiff's attorney accepted the settlement as plaintiff's agent.

Plaintiff first contends defendant failed to state a cause of action in its motion to enforce the settlement agreement. The motion alleged a settlement agreement had been reached with plaintiff's attorney that plaintiff now refused to honor. Plaintiff cites Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, 353, which sets out the elements the pleading must allege: (1) liability of the defendant; (2) agreement concerning the amount to be paid; and (3) acceptance of the agreement in settlement of the original dispute. But, plaintiff fails to tell this court on what basis defendant's motion is defective. It may be plaintiff means to rely on the fact that the motion did not make a statement of liability. This court need not speculate on plaintiff's meaning here, however, since the record shows that this issue was not raised below. Thus, the issue is waived. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499-500.

Next, plaintiff alleges defendant failed to carry its burden of proof to demonstrate that a settlement agreement had been negotiated.

Settlement agreements are to be encouraged and given full force and effect. (People ex rel. Skinner v. Scott (1988), 172 Ill. App. 3d 790, 797-98.) A settlement agreement is binding so long as there is clearly an offer to compromise and an acceptance, and there is a meeting of the minds as to the terms of the agreement. (Skinner, 172 Ill. App. 3d 790.) An attorney may bind a client to a settlement agreement (Knisley v. City of Jacksonville (1986), 147 Ill. App. 3d 116, 120; Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 869), and a settlement agreement based on an oral agreement is enforceable (Sheffield Poly-Glaz, Inc., 42 Ill. App. 3d at 868; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 895). An attorney authorized to represent a client in litigation, however, does not necessarily have authority to conclude a settlement. (Knisley, 147 Ill. App. 3d at 120; Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149; Jones v. Engel (1953), 349 Ill. App. 423.) The attorney must have express consent or authorization to conclude a settlement. McAllister v. Hayes (1988), 165 Ill. App. 3d 426, 428; Knisley, 147 Ill. App. 3d at 120; Danziger, 204 Ill. at 149.

Plaintiff contends defendant presented no evidence to establish that her attorney had authority to settle the claim. Defendant cites Szymkowski v. Szymkowski (1982), 104 Ill. App. 3d 630, 633, which holds that where a settlement occurs in open court, the existence of the attorney of record's authority to settle is presumed unless rebutted by affirmative evidence showing that authority is lacking. (Szymkowski, 104 Ill. App. 3d at 633.) In Szymkowski the court upheld a settlement agreement that was made in open court in the presence of the client. (Szymkowski, 104 Ill. App. 3d at 633.) The law set out in Szymkowski is not applicable here, however, since the evidence clearly shows that this was not a settlement in open court. Here, the attorneys came to an agreement over the phone. There is no case law which holds that an attorney's ...


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