United States District Court, N.D. Illinois, Eastern Division
November 8, 2005.
DONNA L. SEYMOUR, Plaintiff,
CAROL HUG and ROGER HUG, d/b/a REMAX TEAM 2000; PATRICIA BROWN-WYRICK; CENDANT MOBILITY CORP., a Corporation; and CURTIS CASTLE and CAROL CASTLE, Defendants.
The opinion of the court was delivered by: JEFFREY COLE, Magistrate Judge
MEMORANDUM OPINION AND ORDER*fn1
This case has its genesis in Donna L. Seymour's unsuccessful
attempt to purchase a home in a suburb of Chicago from realtors,
Roger and Carol Hug, Patricia Brown-Wyrick and H&H Realty, Inc.
(collectively "Realtor Defendants"), and Cendant Mobility Corp.
and Curtis and Carol Castle (collectively "Owner Defendants").
According to Ms. Seymour, although she had successfully
negotiated a contract for the purchase of the home, the
defendants "sold it out from under her" when they discovered she
was African-American. On March 18, 2004, Ms. Seymour filed a
complaint alleging unlawful discrimination against her on the
basis of race in violation of the Fair Housing Act,
42 U.S.C. §§ 3604, 3605, 3617, and breach of contract under Illinois state
law. A week later, she amended her complaint, and she did so
again on August 20, 2004. Discovery ensued as did intensive settlement
On May 24, 2005, the parties filed a Joint Status Report,
stating that they "were in the process of finalizing an agreed
settlement," and that they had "agreed in principle to a
settlement of all claims. A condition of the settlement is that
plaintiff must seek approval from the Surrogate's Court in New
York, the state of residence of plaintiff and her children, in
order to procure a valid release of any potential claims of her
minor children." (Id).*fn2 On June 20, 2005, counsel for
certain of the defendants reported at a status hearing that the
case was settled, and that the execution of the formal settlement
agreement by all parties was imminent. Accordingly, I dismissed
the case with leave to reinstate within 60 days in the event of
any unanticipated problem and retained jurisdiction to enforce
the settlement agreement.*fn3
Apparently, over the course of the next week, the defendants
concluded that they had been had and rather badly at that by
the plaintiff and her lawyers. They demanded that Ms. Seymour
make further application to the Surrogate's Court and provide the
Court with the information they insisted she had withheld. The
plaintiff's lawyers refused. On June 29, 2005, Ms. Seymour filed
this present Motion to Enforce the Settlement Agreement or, in
the Alternative, to Vacate Dismissal, Reinstate Case, and Enter Judgment on the Agreement. On July 15, 2005, the defendants filed
a Cross Motion to Enforce Settlement and For Fees, in which they
contend that Ms. Seymour failed to comply with the terms of the
parties' March 14, 2005 settlement agreement. The motion argued
that Ms. Seymour and her lawyers had deceived the defendants and
the Surrogate's Court in New York into approving the settlement
of the instant case and authorizing a release of the claims of
Ms. Seymour's children.*fn4 Ms. Seymour's view of the matter
is, predictably, quite different. She denies that there was any
settlement on March 14th and insists that the settlement is
that contained in a document prepared by the defendants on April
28, 2005, which required that she obtain a release of the
childrens' claims. For her, form is substance, and having
obtained on May 20, 2005 an order of the Surrogate's Court
approving the settlement and releasing any claims of her
children, her obligations have been fulfilled.
The difficulty, however, is that form is not substance, and Ms.
Seymour's contention that she has complied with the terms of the
settlement agreement merely by securing an order of the
Surrogate's Court, regardless of the circumstances under which
the order was obtained, is plainly mistaken. Under New York law,
the Surrogate's Court had to be "fully apprised" of all the
relevant facts and circumstances in order to make an informed determination of whether the approval of the
settlement was in the children's "best interest." Unless that
occurred, the defendants would be subject to precisely the risks
of future litigation by Ms. Seymour's children that the
settlement agreement was designed to avoid. Only the
"latitudinarian attitude of Alice in Wonderland towards
language," National Mutual Insurance Co. v. Tidewater Transfer
Co., 337 U.S. 582, 654 (1949) (Frankfurter, J., dissenting),
could support the plaintiff's contention that the petitions Ms.
Seymour filed in New York fully and properly informed the Court
of the nature of the children's claims and the allegations made
by Ms. Seymour in the underlying action. The disquieting reality
is that the Surrogate's Court was ill-served by Ms. Seymour and
her legal advisors, and that by failing to comply with New York
law in her presentation to the Surrogate's Court, Ms. Seymour
breached the settlement agreement she made with the defendants.
The Complaints, Discovery, And Early Settlement Demands
All of Ms. Seymour's pleadings repeatedly referred to her
"family" and "children." The complaint and amended complaint
charged that she "celebrated with her children having
successfully negotiated for their new home." (Compl., at ¶ 60;
Am. Compl., at ¶ 57). She also alleged that she brought her
children to see the home. (Am. Compl., at ¶ 49). All three
versions of her complaint alleged that the defendants' actions
caused Ms. Seymour "and her family economic injury,
consequential damages and personal harm," (Compl., at ¶¶ 77,
80, 82, 84; Am. Compl., at ¶¶ 102, 105, 107, 109; 2nd Am.
Compl., at ¶¶ 111, 114, 116, 118) (emphasis supplied), and
requested compensatory and punitive damages "for discrimination
against her and her children." (Compl., at ¶ 84 Prayer d;
Am. Compl., at ¶¶ 102 Prayer (d), 105 Prayer (d), 107 Prayer (d); 2nd Am. Compl., at ¶¶ 111 Prayer (d), 116
Prayer (d)) (emphasis supplied).
Consistent with these allegations of harm to her children, in
the complaints, Ms. Seymour demanded in August 2004 that in
addition to payment of $150,000 in damages to her, her two
children were entitled to $50,000 "to compensate them for
defendants' illegal actions, and the resulting emotional
distress." (Defendants' Brief, Ex. B). Ms. Seymour's insistence
that her children were harmed by the defendants' actions and
thus had their own claims continued into discovery. When asked
at her deposition in December 2004 to explain what damages were
being claimed, Ms. Seymour said that it had been "a very painful
experience for myself, for my children," and that she relocated
"my family because of this occurrence." (Defendants' Br. Ex. C
at 34). When counsel for the owner defendants, asked if Ms.
Seymour understood that her children were not party to this
lawsuit, Ms. Seymour responded that while her children were not
parties, "my children have been affected by the discrimination
that this lawsuit is about. . . ." Id. at 35. When asked if she
was making a claim on behalf of her children, Ms. Seymour
declared: "My children's lives have been forever altered as a
result of this lawsuit, which was us having to relocate across
the country. I have not chosen at this time to file a lawsuit
on their behalf." Id. (Emphasis supplied). There then followed
this telling exchange between Ms. Donaldson and Ms. Seymour:
Q: Are you making a claim in this lawsuit for damages
that you claim were suffered by your children as a
result of this transaction?
A: I'm making a claim in this lawsuit that my
children's lives have been affected by what has
occurred in this transaction.
Q: And you're making that claim despite the fact that
your children are not plaintiffs and this action is
not brought on their behalf. A: That's correct.
Id. at 36. (Emphasis supplied).
It is thus clear that Ms. Seymour was of the view that her
children had their own independent, substantial claims, and,
although they were not being asserted "in a lawsuit" "at this
time," the specter of future litigation by the children loomed
like a brooding omnipresence. From any prudent perspective, a
settlement with Ms. Seymour had to include the children's unpled
claims. That, at least, was the defendants' non-negotiable
The Early Settlement Negotiations
The unpled claims of Ms. Seymour's children remained a central
issue as the settlement negotiations continued into early 2005.
On March 11, 2005, Mark Howard, counsel for the realtor
defendants, emailed the terms of defendants' settlement offer to
William Caruso, one of Ms. Seymour's counsel. (Defendants' Br.
Ex. D1). The first two of five terms predictably dealt with the
1) Plaintiff to amend complaint to include minors'
claims prior to dismissal pursuant to settlement, and
to petition [Magistrate Judge] Levin in accordance
[with] NY state law Chapter 308, section 1207
(reproduced below) and allocate a reasonable amount
to the minor's [sic] claims, and in the event Levin
declines to exercise jurisdiction, then plaintiff
will institute a special proceeding in NY;
2) $37,500 total offer divided among the plaintiff
and her children in the manner approved by the
appropriate court, inclusive of any and all attorneys
fees and costs . . .
Id. (Parenthesis in original). Mr. Howard sent along a copy of
§ 1207 of the New York Civil Practice Law and Rules, adding
emphasis to the portions he believed pertinent:
1207. Settlement of action or claim by infant,
judicially declared incompetent or conservatee, by
whom motion made; special proceeding; notice; order
of settlement. Upon motion of a guardian of the
property or guardian ad litem of an infant or, if there is no such guardian, then of a
parent having legal custody of an infant, or if
there is no such parent, by another person having
legal custody, or if the infant is married, by an
adult spouse residing with the infant, or of the
committee of the property of a person judicially
declared to be incompetent, or of the conservator of
the property of a conservatee, the court may order
settlement of any action commenced by or on behalf of
the infant, incompetent or conservatee. If no
action has been commenced, a special proceeding may
be commenced upon petition of such a representative
for settlement of any claim by the infant,
incompetent or conservatee in any court where an
action for the amount of the proposed settlement
could have been commenced.
Id. (Boldface added by Mr. Howard, underlining in § 1207).
Acknowledging the offer on March 13, 2005, Mr. Caruso indicated
that he still had not received approval from Ms. Seymour, but
that he would be speaking with her that day. Mr. Caruso told Mr.
Howard that he thought "it [the final settlement figure] will go
at $40,000." (Defendants' Br. Ex. D2).
On March 14, 2005, Mr. Howard spoke with Leslie Matlaw, Ms.
Seymour's co-counsel, regarding settlement negotiations and the
defendants' March 11 offer. As a follow-up to their conversation,
Mr. Howard faxed to Ms. Matlaw a two-page letter that set forth
the defendants' "offer" to settle. (Defendants' Br. Ex. D3).
The letter stressed that "all our offers have included court
approval of the minor's [sic] claims," and explained that, after
his review of New York law, he believed it was necessary to have
the matter approved by the court, and cited, in haec verba, the
relevant New York statute and provided case authority to support
his interpretation. Id. Following his lengthy and reasoned
explanation of why approval of settlement of the minors' claims
was legally required and the sine qua non of any settlement
agreement, Mr. Howard enumerated the five conditions for
(1) Plaintiff to amend complaint to include minors'
claims prior to dismissal pursuant to settlement, and
to petition [Magistrate Judge] Levin in accordance
[with] NY state law Chapter 308, section 1207, and
allocate a reasonable amount to the minor's [sic]
claims, and in the event [Magistrate Judge] Levin
declines to exercise jurisdiction, then plaintiff with institute a special proceeding in NY;
(2) $40,000 total offer divided among the plaintiff
and her children in the manner approved by the
appropriate court, inclusive of any and all
attorneys fees and costs; In the event that Judge
Levin declines jurisdiction over the approval
process, we will pay an additional $1,000.00 to
defray costs of the approval process in New York.
(3) Plaintiff's acknowledgment in the release that
the defendants claim that the settlement is of a
disputed claim, and made solely to avoid litigation
and that liability is denied.
(4) Confidentiality as to all terms and conditions of
settlement, by all parties and counsel;
(5) A release of all claims for legal or equitable
relief to be drafted by defendants for execution by
plaintiffs, incorporating the above terms.
Id. (Emphasis supplied).
That same day, Ms. Matlaw responded to this letter.
(Defendants' Br. Ex. D4). First, she summarized her
conversation with Mr. Howard that morning, conveying "Ms.
Seymour's counter-offer to settle . . . for a Confidential
$45,000 total offer (or $40,000 with a Gag Order) and her
acceptance of all other terms set forth in your fax other than
the filing of a [separate] New York action in relation to her
children's claims." Id. (Emphasis supplied).*fn5 Ms.
Matlaw further reported that she was "very pleased to report that
Ms. Seymour has accepted a total offer of $40,000 for all
Defendants and will accept the Confidentiality Provision in Full
and Final Settlement of all claims with no Defendant
acknowledgment of liability." (Boldface by Ms. Matlaw). According
to Ms. Matlaw, Ms. Seymour was prepared to execute the
defendants' release "subject to our review and approval." Id.
Ms. Matlaw went on to explain why a new action in New York
would not be needed: Ms. Seymour is both Devin and Peter Madkin's parent
and their Guardian pursuant to an already-existing
Minors' Estate in New York Surrogates' [sic] Court.
Thus, rather than filing a separate lawsuit which
would show up in a litigation search contrary to Ms.
Seymour's wishes, we should be able to get the
necessary judicial approval by simply petitioning the
New York judge for approval of our Agreed Consent
Id. (Emphasis supplied). Upon considering the relevant
procedure and costs, Ms. Matlaw informed Mr. Howard that
Defendants' offer of $1,000 toward "the costs of judicial
approval of the minors' claims" was more than adequate. Id. In
closing, Ms. Matlaw expressed her belief that "we can resolve all
outstanding issues and develop agreed-upon language in the very
near future" and that she was "prepared to report to Judge Levin
[the following] Wednesday morning that we have settled this case
in principle, that Plaintiffs are preparing an Amended Complaint
and Draft Agreed Consent Order for production to Defendants, and
that we anticipate presenting these for Judge Levin's approval by
the end of the month." Id.
Additional discussions ensued and, later that day, Mr. Howard
sent an email to Ms. Matlaw and Mr. Caruso expressing his
agreement that "we do not need to amend the complaint if you are
going to get the New York court to approve the settlement."
(Defendants' Br. Ex. D5). Mr. Howard included a draft affidavit
on which he had been working for Ms. Seymour's approval of
settlement that he felt comported with the requirements of New
York law, CPLR § 1208. Paragraphs 4 and 5 of the draft affidavit
made clear that the children had their own claims that the
Surrogate's Court was to consider:
4. Plaintiff has claimed that the children's
expectations were disappointed when they were unable
to obtain a home, and general emotional damages have
been claimed. There are no related medical or
psychological treatments or bills that have been
incurred on behalf of either minor child.
5. For all claims, defendants have proposed a
settlement in the total amount of $40,000, $30,000
payable to Donna Seymour to resolve her claims and
$5,000 each payable to the estates of Peter Madkin
and Devin Madkin. The minors settlement amounts will
be reduced by application of a 1/3 attorney fee,
resulting in a net payment to each of 3,333.33, which I will hold for them . . . until the
respective minor child reaches the age of majority.
Id. Replying to Mr. Howard via email later that evening, Ms.
Matlaw said she agreed that they need not amend the complaint,
but simply proceed directly to petition the Surrogate's Court,
which was overseeing the "already-existing Minors' Estate" for
approval of the settlement and release of their claims.
(Defendants' Br. Ex. D6). She also reported that she spoke in
detail with a clerk in the New York Surrogate's Court and learned
that the court could rule in approximately two weeks based upon a
statement as to the "nature of the action [and] why it is fair
and in the wards' best interests." (Defendants' Br. Ex. D6).
Ms. Matlaw also indicated some confusion over whether she could
represent the children in New York or whether Seymour will
proceed pro se. Id. She concluded with an assurance that
"[w]e'll straighten it all out and make sure that a proper New
York Petition is on file by the end of the week so that the Order
approving the Settlement of the minors' claims can be part of the
Petition before Judge Levin." (Emphasis supplied).
Thus, by the end of the day on March 14, 2005, it is clear that
the parties had agreed to the following:
1. Ms. Seymour was to be paid $40,000 in full and
final settlement of all claims; She was to allocate a
reasonable amount of this sum to her children's
claims in the manner approved by the appropriate
2. The settlement was to be confidential;
3. There would be a denial of liability by the
4. The plaintiff would seek approval from the
Surrogate's Court in New York of the settlement
agreement and the release of the children's claims;
5. The defendants would pay $1,000 to defray the
costs of the approval process in New York if New York
counsel were used.
That Ms. Matlaw had agreed on behalf of her client that some
portion of the $40,000 was to be allocated to the children is reenforced by the events of March
22, 2005. That day, Mr. Howard followed up with both Ms. Matlaw
and Mr. Caruso to request projections on the timing of the
Surrogate's Court's approval. (Defendants' Br. Ex. D8). On
March 24, 2005, Ms. Matlaw replied that she needed an approved
settlement agreement as an exhibit to support the petition that
would be filed in New York. Id. Just a few minutes later, Mr.
Howard replied via email and asked Ms. Matlaw to provide "the
allocations that you will propose to the court for the children"
and indicated that he would amend the draft after approval from
defendants' other counsel. Id. The next day, March 25, 2005,
Ms. Matlaw replied that "[w]e envisioned a pro-rata breakdown
similar to that found in the damages statement we provided
following our in-chambers discussion with Judge Levin. We've
conveyed proposed amounts to [Seymour], but have yet to hear back
from her." Id. She then asked for the current draft of the
agreement so she could review the other terms and "fill in the
blanks" once Ms. Seymour had decided on the breakdown.
Thus, by March 25th, the only open issue was the amount Ms.
Seymour would allocate to the children. That there was to be an
allocation in some amount was agreed upon. On March 29, 2005, Mr.
Howard sent the proposed draft release and settlement agreement
(the "March 29 Version") and asked both Mr. Caruso and Ms. Matlaw
to review and indicate whether it was acceptable. (Defendants'
Br. Ex. D9). Consistent with all the parties' prior exchanges,
the formal written agreement envisioned some payment to the
minors and court approval of the settlement. Thus, paragraph b.
Donna Seymour agrees to obtain approval of the
proposed settlement of the claims of the minor
children named Peter Madkin and Devin Madkin from a
court in New York state where the children reside,
and provide a copy of the order authorizing the
settlement and directing the amounts to be paid to the minors'
The next day, March 30th, Ms. Seymour had a change of heart
and sent this email to Ms. Matlaw:
I received your fax. There is no aplit[sic]
concerning Peter and Devin. I am the one whohas[sic]
gone in to [sic] debt and should be reimbursed. I
will not ettle [sic] if any of this money is going in
to [sic] their trusts and not to me.
(Brief in Support of Plaintiff's Motion To Enforce Settlement
("Pl. Br.") Ex. D). Ms. Seymour's lawyers never told defense
counsel of this email or Ms. Seymour's position. Instead, they
embarked on what the evidence compellingly suggests is a pattern
of deception designed to gull not only the defendants' lawyers,
but the Surrogate's Court in New York as well.
In her brief, plaintiff calls the March 30th fax an
"unequivocal rejection" of designating any part of the settlement
to her children's trusts. (Pl. Br., at 2). Perhaps it was. The
difficulty is that Ms. Seymour's lawyers chose to conceal it from
the defendants until the briefing on the present motions, and Ms.
Seymour's undisclosed rejection whether unequivocal or not is
thus analytically meaningless. See infra at 25.
The Plaintiff's Lawyers Changes to the Language Regarding the
Children's Claims Following the Receipt of Ms. Seymour's Email of
If it be true that honesty of purpose prompts frankness of
statement, Crosby v. Buchanan, 90 U.S. 420, 454 (1875), the
post-March 30th conduct of Ms. Seymour's lawyers does not
fare well. Rather than tell defense counsel of Ms. Seymour's volte face, Mr. Caruso
acted as if nothing had occurred and that everything was on track
in accordance with the March 14th exchange of emails. On
March 31, 2005, he was "revising the settlement agreement and
preparing materials to obtain release of claims by minors."
(Defendants' Br. Ex. D9). On April 1, 2005, Mr. Howard was sent
a revised draft of the settlement agreement for his review. The
covering email stated:
We believe the key factors are 1) the releases should
be joint and mutual, and 2) Paragraph K in your draft
[the Indemnity Paragraph] was stricken because the
New York court order will obviate the need for that
paragraph. We made other minor changes, which did
not amount to any substantive changes.
(Defendants' Br. Ex. D10) (Emphasis supplied).
Among the purportedly "minor" "[non-] "substantive changes" was
a change to what had been Paragraph b. (but now was redesignated
as Paragraph c.). In Mr. Howard's March 29th draft, Paragraph
Donna Seymour has obtained approval of the proposed
settlement of the claims of the minor children named
Peter Madkin and Devin Madkin from a court in New
York state where the children reside, and provided a
copy of the order authorizing the settlement and
directing the amounts to be paid to the minors'
(Defendants' Ex. 1).*fn8
In the April 1st version, as
changed by Ms. Seymour's lawyers following her March 30th
email, the critical phrase, "of the claims of the minor children
named Peter Madkin and Devin Madkin from a court in New York
state where the children reside, and provided a copy of the order
authorizing the settlement and directing the amounts to be paid to the
minors' estates" was deleted.*fn9
Mr. Howard, "supposing he
was dealing with . . . honorable [people] . . . of high-standing
at the bar, whose professional robe indicated the higher
virtues," considered he was secure in relying on the assurance
that the deletion in Paragraph c. was minor and not at all
substantive. Dickerman v. Burgess, 20 Ill. 266 (Ill. 1858).
The remaining correspondence between the parties focused on the
settlement agreement's confidentiality provision, with no further
mention of the children's claims. On April 28, 2005, Mr. Howard
sent a revised draft of the proposed settlement agreement and
documents stipulating to the dismissal of the case. (Defendants'
Br. Ex. D22). Paragraph c. incorporated the purportedly minor
non-substantive change and Paragraph j. provided that the
defendants would pay $1,000 to New York counsel for time and
expenses incurred in obtaining New York approval for the terms of
the settlement. In the email accompanying this version, Mr.
Howard asked: "Please review, and answer the eternal question
"Are we there yet?" (Defendants' Br. Ex. D22). According to the
plaintiff, the manner in which defendants presented the April 28
version left no reason to believe that it was anything other than
the final language for which the defendants sought the
plaintiff's assent. (Amended Brief in Support of Plaintiff's
Motion to Enforce Settlement, at 3; Plaintiff's Response to
Defendants' Joint Brief, at 2-3).
The course Ms. Seymour's lawyers pursued after receiving this
email mirrored the course they pursued after receiving Ms.
Seymour's March 30th email. Just as they did not tell Mr.
Howard and his colleagues that on March 30th Ms. Seymour had
refused to go along with any allocation, they did not tell Mr.
Howard that they were going to take the draft agreement to New
York, that they would make it appear that the children had
absolutely no claims, or that they would make another change to
the language of Paragraph c. Indeed, there was no further
communication between the parties until May 23, 2005. And even
then the information provided to the defendants was misleading.
The Proceedings in the Surrogate's Court in New York
On May 20, 2005, unbeknownst to defendants, Ms. Seymour
petitioned the Saratoga County Surrogate's Court in New York
State to approve the settlement agreement, which only she had
signed and which her lawyers had surreptitiously altered.
(Defendants' Br. Exs. F1, F2). Ms. Seymour filed two identical
petitions in the Surrogate's Court, one on behalf of Devin and
one on behalf of Peter. The petitions presented a misleading
picture of the claims of her children and their importance to the
agreed upon settlement of her Fair Housing Act claim in the
Northern District of Illinois.
Under New York law, it was absolutely critical that the "best
interests" of the children be protected, and to do that the
Surrogate's Court had to be "fully apprised" of all of the
critical facts. See New York Civil Practice Law and Rules. §§ 1207-1208 Cf. Jay
Burns Baking Co. v. Bryan, 264 U.S. 504, 520 (1924) (Brandeis,
J., dissenting) ("Knowledge is essential to understanding, and
understanding should precede judging."). The importance of
absolute candor with the New York court was essential in light of
the non-adversarial nature of the proceedings.*fn10
The presentation to the Surrogate's Court by Ms. Seymour
through her petitions was not designed to "fully apprise" the
Court as New York law required. For example, the petitions did
not reveal that Ms. Seymour's claim involved the attempted
purchase of a home, only that "property" was involved, that she
was in the active business of investing and dealing in real
estate, and that the damages sought included "the loss of
commissions, business, and business opportunity because of
discrimination against her. . . ." (Defendants Ex. F1). The
Court was thus led to believe that Ms. Seymour's business
interests only were implicated. Concealed was the fact that,
according to Ms. Seymour, she was forced to relocate her entire
family as a consequence of the defendants' discrimination against
her and her children.
But this was fairly subtle, and so the petitions stressed that
only Ms. Seymour was affected by the defendants' misconduct and
only she had a claim, which she had decided to settle for $40,00,
to avoid the cost, delay, uncertainty, and burden of further
litigation in Illinois. (Defendants' Br. Exs. F1-F2, at ¶ 4).
The petition relating to Devin alleged:
In the federal complaint, there is no mention of Devin Madkin,
who is the child of Petitioner. She was not named in the complaint, no claim
was made on her behalf, and defendants have not claimed that
there is evidence of any damages for or liability to Devin
(Emphasis supplied). The petition relating to Peter is
identical except for his name and gender reference.
Of course the "defendants" had not claimed there were any
damages to the children. They had denied liability. Ms. Seymour,
however, had insisted that her children had been profoundly
affected by all that occurred. It was manifestly false to say
that the defendants "did no discovery regarding the existence of
any possible interest of any minor child" and that "there were no
allegations or claims to that effect." (Defendants' Br. Ex. F1,
at ¶ 8; Defendants' Br. Ex. F2, at ¶ 8). The petitions were
careful to make no mention of the pleadings' insistence that the
defendants had "caused her and her family, economic injury,
consequential damages, and economic harm" or that she had sought
compensatory and punitive damages "for discrimination against her
and her children. . . ." (2nd Amended Complaint, ¶ 111;
Prayer for Relief (d); ¶ 114; Prayer for Relief (d); ¶ 116;
Prayer for Relief (d); ¶ 118 (Emphasis supplied)). Nor did they
reveal that Ms. Seymour had originally asked for $25,000 each for
her children in one of her settlement demanded, that she
repeatedly referred to the alleged discrimination's effect on the
children during her deposition, or that she had claimed at her
deposition that her "children's lives have been forever altered
as a result of this lawsuit, which was us having to relocate
across the country. I have not chosen at this time to file a
lawsuit on their behalf." In short, the petitions could scarcely
have been more misleading as they related to the existence of
claims by Ms. Seymour's children and the importance the release
of those unpled claims played in the settlement discussions.
Ms. Seymour asked the New York Court to approve the settlement
agreement and "specifically find that Devin Madkin has no
interest in such settlement and such order shall be a waiver,
release, and satisfaction of all claims Devin Madkin had, has, or may have
against any" of the Defendants. (Defendants' Br. Ex. F1, at ¶
11). She made an identical request with respect to Peter Madkin.
(Defendants' Br. Ex. F2, at ¶ 11). As a result, the Surrogate's
Court, thinking itself "fully advised in the premises," ordered
the settlement "approved as being in the Ward's best interest"
and ordered that the executed settlement be filed with the court
within 30 days of execution and entry of the Agreed Consent
Decree. (Defendants' Br. Exs. E1, E2).
The settlement agreement presented by Ms. Seymour to the New
York Court and attached to its order was, essentially, the April
28 version, with one change, made by the plaintiff's lawyers
without the knowledge or approval of defense counsel: the phrase
in Paragraph c., "Miss Donna Seymour has obtained approval of the
proposed settlement of the claims of the minor children," was
changed to "Donna Seymour has obtained approval of the proposed
settlement of any claims of the minor children." (Emphasis
supplied). The document was signed by Ms. Seymour and notarized
on May 20, 2005.
"Of course, the [change] . . . would not have been [made]
unless it had been intended to have some effect, and we do not
see what effect it could be expected to have" upon Judge Seibert
of the Surrogate's Court "except to influence him" that the
children had no claims. Schenck v. United States, 249 U.S. 47,
48 (1919) (Holmes, J.). Cf. United States v. Ladish Malting
Co., 135 F.3d 484, 490 (7th Cir. 1998) ("The prosecutor must
have thought that the instruction mattered; why else so
vigorously oppose Ladish's request for an actual-knowledge
instruction"). The intended effect seems obvious: the phrase "the
claims of the minor children" connotes the existence of actual
concrete claims, while the phrase, "any claims of the minor
children," suggests the kind of hypothetical, non-existent claims
that are often the subject of releases because of lawyers'
excessive (but quite proper) caution. In deciding whether a release of claims where the minors
receive nothing is in the minor's "best interests," a court would
certainly have wanted to know whether actual or theoretical
claims were involved. The petitions presented to Judge Seibert
left no doubt that only Ms. Seymour had been harmed, and that the
children had no real basis for complaint. On May 20th, the
Surrogate's Court entered its approval orders. (Defendants'
Br., Ex. E1, E2). Neither the application to nor the approval of
the New York court was communicated to defense counsel.
The Parties' Report to This Court and the Subsequent Dispute
On May 23, 2005, the parties re-initiated communications via
email regarding the preparation of a joint status report. Mr.
Caruso indicated that he could get the report prepared, and he
said that he believed the parties had reached an agreement
"subject only to the defendants' requirement of protection from
any action by a child when they reach maturity." (Defendants'
Br., Ex. D24). The email made no mention of Judge Seibert's May
20th order. On May 24th, the parties filed a Joint Status
Report summarizing, inter alia, the status of settlement
The parties have agreed in principle to a settlement
of all claims. A condition of the settlement is that
plaintiff must seek approval from the state courts of
New York, the state of residence of plaintiff and her
children, of the settlement in order to procure a
valid release of any potential claims of her minor
(Defendants' Br. Ex. G) (Emphasis supplied). Apparently, the
defendants still had not been informed of the New York court's
approval of the settlement. (Amended Brief in Support of
Plaintiff's Motion to Enforce Settlement, at 4; Defendants'
Joint Reply in Opposition to Plaintiff's Motion, at 7).
On June 20th, Mr. Howard, in an email to counsel for both
parties, noted that the release approved in New York was not the
version with the confidentiality language last approved.
(Defendants' Br. Ex. D27). Ms. Donaldson, in particular was dismayed by the
confidentiality language, and indicated via email on June 21,
2005, that "no one at [her firm], counsel for the `owner'
defendants, had finally approved or consented to the language in
the draft release attached to the orders. This oversight needs to
be corrected." (Defendants' Br. Ex. D29). Mr. Caruso responded,
informing Ms. Donaldson that he was under the impression that she
had approved the language before he sent the agreement to New
York for approval. (Defendants' Br. Ex. D30). Later that day,
after speaking with her clients, Ms. Donaldson indicated
acceptance of the Release already approved by the New York Court,
but requested a copy of the petitions that were filed in New
Despite a further exchange of emails, Ms. Donaldson, as of June
27th still had not received the copies she had requested.
Also, at that point, having finally learned of the presentation
by Ms. Seymour to the Surrogate's Court, Ms. Donaldson sent an
email to plaintiff's counsel complaining of what she deemed to be
a breach of the settlement agreement:
As addressed in the Release, the purpose of involving
the New York court was to obtain `approval of the
proposed settlement of any claims of the minor
children.' And, as noted in the Joint Status Report,
`to procure a valid release of any potential claims
of [the] minor children.' The Petitions allegedly
presented to the court do not comport with this
purpose. The Petitions ask for a finding that the
children have NO interest in the settlement and
assert that the petitioner has settled HER claim for
$40,000. If this is so, then the Petitions would need
to unequivocally concede that the children are
without claims and were not injured by the alleged
`wrong' in order to be in compliance with the terms
and conditions of the settlement. The Petitions are
silent on this point, and instead, speak to an
assertion that any claims of the minors were not part
of the underlying litigation and therefore the minors
have no interest in the settlement fund. As such,
the plaintiff is in breach of the agreement as she
has not `obtained approval of the proposed settlement
of any claims of the minor children. . . .
(Defendants' Br. Ex. D32) (Emphasis supplied). Ms. Donaldson
described what she viewed as "several false and wholly
unsupported statements set forth in the draft Petitions" and
insisted that the certain representations made by Ms. Seymour were "patently false." Id.
On June 28, 2005, Mr. Howard amplified these concerns. He
argued that the Surrogate's Court's order was obtained on
incomplete information, which prompted the defendants' concern
that the release, entered into on behalf of the minor children,
could be subject to attack for, under New York law, orders of the
Surrogate's Court obtained by fraud or mistake. Id. He
explained that he "would still like to see the settlement go
through," and suggested that Ms. Seymour try again in New York,
offering an additional $1,000 "to be payable to a New York
attorney for prospective work on straightening this out."
(Defendants' Br. Ex. D35). Not surprisingly, given what had
occurred, Mr. Caruso responded that he "disagree[d] with [Mr.
Howard's] interpretation of the settlement" and notified Mr.
Howard of this pending motion to enforce the settlement.
(Defendants' Br., Ex. D36).
The Parties' Contentions in this Court
The parties are united in insisting that there is a binding
settlement agreement. (Motion to Enforce Settlement Agreement,
at 1; Joint Brief in Support of Defendants' Motion to Enforce
Settlement, at 1). Their dispute focuses on the terms of that
agreement and when it was reached. According to the plaintiff,
the settlement agreement is the April 28th version, and all
that it required was that she obtain approval of the proposed
settlement of any claims of her minor children and provide a copy
of the order authorizing the settlement from the Surrogate's
Court. Having done that, says she, that is the end of the matter,
and the defendants owe her $40,000.
The defendants have a very different view. They submit that the
material and essential terms of the parties' agreement are
contained in the written email exchanges, which constitute a
binding settlement agreement, which came into being on March 14th. They contend
that Ms. Seymour was required to allocate some portion of the
$40,000 to her children and without such an allocation, the
release is without consideration and thus not binding. In
addition, Ms. Seymour had to comply with New York law and to
fully apprise the court of the children's claims in order for any
release to be valid. They argue, persuasively, that Ms. Seymour's
presentation did not comply with New York law in that it was
under inclusive and deceptive. For the defendants, the April
28th version was not the settlement agreement, but merely a
"draft Release." (Defendants' Joint Reply in Opposition to
Plaintiffs' Motion, at 8). The plaintiff summarily dismisses
these concerns, arguing that she was completely candid with the
New York court, and that the releases are valid. In any event,
she argues that the defendants are protected from future
litigation by the children because the statute of limitations on
Fair Housing Act claims has run.
The Parties Reached an Enforceable Settlement Agreement on March
Settlement agreements are contracts, and their construction and
enforcement 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); McCall-Bey v.
Franzen, 777 F.2d 1178
, 1186 (7th Cir. 1985). Under Illinois
contract law "`the primary object in construing a contract is to
give effect to the intention of the parties involved.'" In re
Doyle, 144 Ill.2d 451
, 468, 581 N.E.2d 669
(1991). An agreement
is binding if the parties agree on all material terms. Abbott
Laboratories v. Alpha Therapeutic Corp., 164 F.3d 385
(7th Cir. 1999); Midland Hotel Corp. v. Reuben H. Donnelley
Corp., 118 Ill. 2d 306, 313-314, 515 N.E.2d 61 (1987). Whether
the parties came to agreement is determined not by their subjective intent, but by what they expressed to each other in
their writings. Abbott, 164 F.3d at 387. Thus, the parties
decide for themselves whether the results of preliminary
negotiations bind them, but they do so through their words. Id.
at 388; see also Empro Mfg. Co. v. Ball-Co Mfg., Inc.,
870 F.2d 423
, 425 (7th Cir. 1989) (citing Chicago Inv. Corp. v. Dolins,
107 Ill. 2d 120
, 481 N.E.2d 712
Unless parties expressly condition their agreement on the
signing of a formal document, informal writings manifesting each
party's intent to be bound by the material terms proposed
constitute a binding settlement agreement. Abbott,
164 F. 3d at 388-89; see also Empro, 870 F.2d at 425. A contract is
sufficiently definite and enforceable as long as the court can,
under proper rules of construction and applicable principles of
equity, ascertain what the parties have agreed to. Academy
Chicago Publishers v. Cheever, 144 Ill. 2d 24, 29,
578 N.E.2d 981 (1991); see also Dawson, 977 F. 2d at 373. There is no
requirement that an agreement be "signed, sealed, and delivered"
to be binding, Abbott, 164 F. 3d at 389, and Illinois courts
have not been shy about enforcing promises made in the context of
ongoing negotiations and often involving preliminary or
incomplete agreements. Dawson v. General Motors Corp.,
977 F.2d 369, 374 (7th Cir. 1992). Phrased differently, a contract is
enforceable even though some terms may be missing or left to be
agreed upon by the parties. Academy Chicago Publishers,
144 Ill. 2d at 30; see also Johnson v. Jung, Nos. 02 C 5221, 04 C
6158, 2005 WL 1126897, at *3 (N.D. Ill. May 4, 2005); Rose v.
Mavrakis, 343 Ill. App. 3d 1086, 1090-91, 799 N.E.2d 469
(1st Dist. 2003).
Application of these fundamental principles leads to the
conclusion that by virtue of the exchange of emails, a binding
contract arose on March 14, 2005. (Defendants' Joint Reply in
Opposition to Plaintiff's Motion, at 10-11). By the end of the day, the
parties had agreed to all the material terms and conditions of
the contract, including:
1. Ms. Seymour was to be paid $40,000 in full and
final settlement of all claims;
2. She was to allocate a reasonable amount of this
sum to her children's claims in the manner approved
by the appropriate court;
3. The settlement was to be confidential;
4. There would be a denial of liability by the
5. The plaintiff would seek approval from the
Surrogate's Court in New York of the settlement
agreement and the release of the children's claims;
6. The defendants would pay $1,000 to defray the
costs of the approval process in New York if New York
counsel were used.
It is no answer to say that Ms. Seymour's March 30th email
to her lawyers was an "unequivocal rejection" of the allocation
provision a provision she had accepted two weeks earlier
through her lawyers. Under basic principles of agency, that
approval bound her. Knisley v. City of Jacksonville,
147 Ill.App. 3d 116, 120, 497 N.E.2d 883
(4th Dist. 1986); In re
Marriage of Clarke, 194 Ill.App.3d 248
, 252, 550 N.E.2d 1220
(1st Dist. 1990) (attorney's statements may bind the client
to a settlement agreement even when the client later claims to
have misunderstood the terms of the settlement). In addition to
coming too late, Ms. Seymour's "rejection" was never communicated
to the defendants, and a secret, undisclosed "mental reservation"
on the part of one party to a settlement agreement is
ineffectual. See Steinberg v. Chicago Medical School,
69 Ill. 2d 320
, 330-331 (1977), citing I Williston, Contracts, § 22, at
46-48 (3d. ed. 1957); American College of Surgeons v. Lumbermens
Mut. Casualty Co., 142 Ill. App. 3d 680, 693-694 (1st Dist.
1986). "[P]rivate intent counts only if it is conveyed to the
other party and shared." Robbins v. Lynch, 836 F.2d 330
Cir. 1988). B.
The Plaintiff Breached the March Agreement By Failing to Make Any
Allocation of the Settlement Amount to Her Children and By
Misleading The Surrogate's Court About the Existence and Nature of
Her Childrens' Claims
Unwilling to accept a release that in their view might be
subject to attack on the ground that it lacked consideration, the
defendants, from the beginning, insisted that there be some
allocation of the $40,000 to the children. Ms. Seymour had
"accept[ed]" this provision through Ms. Matlaw's March 14th
email. Of course, the Surrogate's Court was free not to approve
the release and settlement if it concluded that the allocation
was not in the childrens' "best interests." If that occurred,
there would be no settlement, but the plaintiff would have
performed under the agreement. Ms. Seymour was not, however, free
to eliminate her obligation to make an allocation or at least to
allow the Surrogate's Court to do so.
To ensure that there would be no allocation to her children,
Ms. Seymour's petitions to the Surrogate's Court were drafted in
such a way that they neither adequately nor accurately informed
Judge Seibert of the Surrogate's Court of the information
statutorily required be included in the petitions. Without that
information, he could not make an informed judgment about whether
the settlement agreement was in the childrens' "best interest,"
as required by §§ 1207-1208 of New York's Civil Practice Law and
Rules. In order to make that discretionary judgment, id., Judge
Seibert manifestly, had to be "fully advised" of the relevant
facts. See Edionwe v. Hussain, 777 N.Y.S.2d 520, 522 (N.Y.A.D.
2nd Dept. 2004). Not only did the petitions not "fully
advise" the Court, they badly misled him.
Section 1208(a) provides the procedures that must be followed
and the information that must be provided by affidavit when
petitioning the Surrogate's Court for approval of a settlement
affecting a minor or incompetent: 1. name, residence and relationship to the infant;
2. name, age and residence of the infant;
3. the circumstances giving rise to the action or
claim [of the infant];
4. the nature and extent of the damages sustained by
5. the terms and proposed distribution of the
settlement and his approval of both;
6. the facts surrounding any other motion or petition
for settlement of the same claim, of an action to
recover on the same claim or of the same action;
7. whether reimbursement for medical or other
expenses has been received from any source; and
8. whether the infant's representative or any member
of the infant's family has made a claim for damages
alleged to have been suffered as a result of the same
occurrence giving rise to the infant's claim and, if
so, the amount paid or to be paid in settlement of
such claim or if such claim has not been settled the
Without such information, the Court could not fulfill its duty of
"scrutinizing" the proposed settlement "to assure that it was
fair and reasonable and in the infant plaintiff's best
interests." Edionwe, 777 N.Y.S.2d at 522. Unless the
requirements of §§ 1207 and 1208 are complied with, the approval
is subject to collateral attack. Ferraro v. Stripekis,
401 N.Y.S.2d 252 (N.Y.A.D. 2nd Dept. 1978); Caglioti v.
Medi-Cab, Inc., 382 N.Y.S.2d 311 (N.Y.A.D. 1st Dept. 1976);
Valdimer v. Mount Vernon Hebrew Camps, Inc., 195 N.Y.S.2d 24,
aff'd, 210 N.Y.S.2d 520 (N.Y. 1961).*fn13
approval might also be set aside on substantive grounds such as fraud, duress or
mistake. Fletcher v. Hatch, 602 N.Y.S.2d 718, 719-20 (N.Y.A.D.
3rd Dept. 1993).*fn14
Ms. Seymour's petitions did not fully advise the court of the
nature of the minors' claims, the circumstances giving rise to
those claims, and the nature and extent of the damages
purportedly sustained by them. All they did was to explain Ms.
Seymour's claims, thereby defeating the whole purpose of the
exercise. Thus, Ms. Seymour's petitions stated:
By her complaint, that alleged discrimination,
Petitioner sought damages. The damages sought
included the loss of commissions, business, and
business opportunity because of discrimination
against her. The amount . . . lost that she sought to
recover exceeded $90,000.00. Petitioner has decided
to settle her claim for a lower amount, $40,000, to
avoid the cost, delay, uncertainty, and burden of
further litigation in Illinois.
(Defendants' Br. Exs. F1-F2, at ¶ 4). It misses the mark to say
that this statement was literally true, for "a statement which is
technically true as far as it goes may nevertheless be
fraudulent, where it is misleading because it does not state
matters which materially qualify the statement as made. In other
words, a half-truth is sometimes more misleading than an outright
lie.'" St. Joseph Hospital v. Corbetta Construction Co.,
21 Ill.App.3d 925, 953, 316 N.E.2d 51 (1st Dist. 1974). See also
People v. Curry, 11 A.D.3d 150, 782 N.Y.S.2d 66
1st Dept. 2004) ("relating only part of the truth can
accomplish a deception as effectively as presenting a complete fabrication.").*fn15
The second amended complaint alleged no fewer than three times
that the defendants discriminated "against [Ms. Seymour] and her
children." And there appears no fewer than six times the
allegation that both she "and her family" are entitled to
damages. (2nd Amended Complaint, ¶ 111; Prayer for Relief
(d); ¶ 114; Prayer for Relief (d); ¶ 116; Prayer for Relief (d);
¶ 118). Yet, Ms. Seymour's petitions make no mention of any of
these allegations. The "misleading omissions" continue in
paragraph 7 of the petitions, which state: "there is no mention
of" Devin Madkin or Peter Madkin in the "federal complaint."
(Defendants' Br. Exs. F1-F2, at ¶ 7). Although the federal
complaint refers to "her children" or her "family" at least seven
times, the plaintiff's lawyers argue that paragraph 7 is not
misleading because the second amended complaint does not mention
the children "by name." (Plaintiff's Response to Defendants'
Joint Brief in Support of Their Cross-Motion, at 3-4).
On its face, this argument is preposterous. The only thing
about it that "we can commend is the hardihood in supposing [it]
could possibly succeed." United States v. Minneci,
142 F.2d 428, 429 (2nd Cir. 1944) (L. Hand, J.). More than a century
ago, Justice Holmes cautioned that "[w]e must think things, not
words, or at least we must constantly translate our words into
facts for which they stand, if we are to keep to the real and the
true." Holmes, Law and Science and Science and Law, 12
Harv.L.Rev. 443, 460 (1889). The inescapable reality is that although Ms.
Seymour's children were mentioned repeatedly in the pleadings,
Judge Seibert was misled into believing that they were strangers
to the complaint and thus to the discrimination itself. In short,
Ms. Seymour's presentation to the Surrogate's Court did not
comply with New York law and constitutes a breach of the
The Plaintiff Breached the Terms of the April 28 Version of
the Settlement Agreement
The plaintiff contends that there was no settlement agreement
until after she assented to Mr. Howard's April 28th version
by making application on May 20th to the Surrogate's Court.
Even if one were to assume that the April 28th version is
the settlement agreement, Ms. Seymour breached it.
Following Ms. Seymour's March 30th rejection of the
allocation provision in the exchange of emails, the plaintiff's
lawyers eliminated language in Paragraph c. of the settlement
agreement and release relating to the childrens' claims, and then
assured the defendants' counsel that the changes were minor and
non-substantive. Whether one applies basic principles of estoppel
or the fundamental contract principle that a contract is to be
construed strictly against the drafter, Liataud v. Liataud,
221 F.3d 981, 986 (7th Cir. 2000), the result is the same: the
parties had agreed that there would be an allocation of some
amount in order to satisfy the defendants' analysis of New York
law that specific consideration was required to support the
release of the minors' claims. Ms. Seymour breached this
provision of the settlement agreement by refusing to make an
allocation. Thus, the defendants are now subject to the threat of
future litigation in which they would have to litigate the validity of
the release the very evil they sought to avoid.*fn17
In addition to this change, the plaintiff's lawyers made
another, which they did not disclose. They changed the phrase in
Paragraph c., "the claims of the minor children," to "any claims
of the minor children." Reference to "the claims of the minor
children" connotes the existence of an extant controversy, not
some abstract, theoretical claim which is connoted by the phrase,
"any claims of the minor children." All this was part of the
plaintiff's overarching attempt to obtain an approval of the
settlement agreement without allocating any part of the $40,000
to Ms. Seymour's children. Central to that end was failing to
inform Judge Seibert about the circumstances surrounding the
childrens' claims and the damages she claimed they suffered, as
explicitly required by New York law. CPLR § 1208.
According to the petitions, the plaintiff "decided to settle
her claim for . . . $40,000." (Defendants' Br. Exs. F1-F2, at
¶ 4). Further on in the document, the plaintiff requested that
the court "approve the Settlement Agreement, . . . and
specifically find that [Devin and Peter] Madkin ha[ve] no
interest in such settlement. . . ." (Defendants' Br. Exs.
F1-F2, at ¶ 11). This is not what the April 28th version
obligated her to do. Even under the plaintiff's version of the
pertinent language, plaintiff was to "obtain approval of the
proposed settlement of any claims of the minor children named
Peter Madkin and Devin Madkin from a court in New York" not
the approval of her settlement and a declaration that the
children have no interest in it. (Defendants' Ex. E2). Given
the deceptive manner in which plaintiff dealt with the New York
court, no court would have hesitated to declare that the children
had no real claims and thus no interest in the $40,000
settlement. In short, the approval of the plaintiff's own $40,000 settlement is simply not the same thing as the approval of the
settlement of her children's claims, which the court was misled
into believing were non-existent.
For the reasons discussed earlier, Ms. Seymour's petitions fell
far short of "fully advising" Judge Seibert of the nature of the
Fair Housing Act claim, the nature of the children's claims and
damages. Consequently, they were noncompliant with New York law,
and Ms. Seymour has thus breached her contractual duties even as
measured by the April 28th version.
Whether a "fully informed decision maker" might have approved
the settlement and the release of the minors' claims without any
allocation, Cleveland Board of Education v. Loudermill,
470 U.S. 532, 544 (1985), is impossible to know. It is certainly
possible that had the argument been made by Ms. Seymour to Judge
Seibert that she made to her lawyers in her March 30th email
regarding the unfairness of any payment to her children, he would
have concluded that it was still in the minors' best interests to
approve a release of whatever claims they had.*fn18 But Ms.
Seymour and her lawyers obviously did not have faith in that
position or in how Judge Seibert would react.*fn19
The Defendants Are Entitled to the Settlement Agreement They
Bargained For Saving the least for last, the plaintiff raises three
additional points: the settlement of the children's claims was an
insignificant matter; regardless of any impropriety in New York,
the defendants are nevertheless adequately protected from any
claims by Ms. Seymour's children by the statute of limitations;
and finally, the release is valid because, under New York law, it
need not be supported by the consideration that would have been
provided had Ms. Seymour made the (contractually required)
To say that the issue of the children's claims was a "footnote"
to the parties' settlement agreement, was "never part of . . .
the Defendants' mental processes," and that the "Defendant's
[sic] utter lack of interest . . . [in the topic] was manifest"
does not merely strain credulity, it offends it. (Amended Brief
in Support of Plaintiff's Motion to Enforce Settlement, at 7;
Brief in Support of Plaintiff's Motion to Enforce Settlement,
at 7, 11). Even a cursory reading of the emails makes luminously
clear the importance defendants attached to the release of the
childrens' claims. As late as May 23, 2005, Mr. Caruso made
reference to the defendants' "requirement of protection from any
action by a child when they reach maturity." (Defendants' Br.,
Equally feckless is the argument that the defendants are
adequately protected because the statute of limitations has run.
Predictably, the argument is supported only by the ipse dixit
of Ms. Seymour's lawyers. Hence, the argument is waived. Perry
v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000); United
States v. Cusimano, 148 F.3d 824, 828 n. 2 (7th Cir. 1998).
More importantly, the defendants bargained for certainty, not for
Ms. Seymour's lawyer's prognostications or the opportunity to
litigate what is at least now an open question, and a court's
role "is not to redistribute . . . risks and opportunities as [it
sees] fit. . . .'" 11 Williston, Contracts § 31.5 at 298 (4th
Ed. 1999). The Fair Housing Act requires that an aggrieved person file a
complaint with the Department of Housing and Urban Development
within one year and commence an action in federal court no later
than two years after the last occurrence of alleged
discriminatory conduct. 42 U.S.C. § 3610(a)(1)(A)(i);
42 U.S.C. § 3613(a)(1)(A). Time requirements in lawsuits between private
litigants are customarily subject to equitable tolling. Indeed,
the Supreme Court has made clear that the statutory time limits
applicable to lawsuits against private employers under Title VII
are subject to equitable tolling. Irwin v. Dept. of Veterans
Affairs, 498 U.S. 89, 95 (1990). Whether that can include
infancy, the Supreme Court has not yet said. While there are
isolated decisions, they are meaningless until the Supreme Court
has spoken. Even decades of uniform circuit precedent on a given
issue does not ensure that the Supreme Court will agree when it
finally hears the issue. See, e.g., McNally v. United States,
483 U.S. 350 (1987).
Finally, there is the argument that the defendants are
protected from future litigation since under New York law the
release of the minors' claims need not be supported by
consideration. A number of objections to this contention come
readily to mind. First, the cases cited by the plaintiff did not
discuss the issue of consideration to support a
settlement,*fn20 and New York courts generally find the
adequacy of consideration to support a settlement to be a
material issue. See, e.g., F & K Supply Inc. v. Willowbrook
Development Co., 732 N.Y.S.2d 734, 737 (N.Y.A.D. 3rd Dept.
2001); Della Rocco v. City of Schenectady, 717 N.Y.S.2d 704,
706 n. 2 (N.Y.A.D. 3rd Dept. 2000).
Second, no decision in this case can bind Ms. Seymour's
children as they are not parties. Thus, even if I were to agree with the plaintiff's "no consideration
needed" argument, the children would be free to litigate any
claims they might have against the defendants. Third, and most
importantly, the no consideration needed argument puts out of
view what occurred before Judge Seibert and the plaintiff's
non-compliance with New York law discussed earlier. Whether Judge
Seibert would or could have approved the releases without some
allocation had he been "fully advised in the premises" is
anyone's guess. Obviously, the plaintiff and her lawyers did not
think so, or they would not have concealed Ms. Seymour's March
30th email, would not have changed the word "the" to "any,"
would not have deleted the phrase in Paragraph c. that they did,
would not have falsely characterized it as a minor
non-substantive change, and would not have made the misleading
and underinclusive presentation to Judge Seibert that they did.
Thus, to argue that under New York law a release need not be
supported by consideration, is to argue an analytical
The purpose of any settlement agreement is to eliminate the
uncertainties inherent in litigation. McDermott, Inc. v.
AmClyde, 511 U.S. 202, 215 (1994); Carson v. American Brands,
Inc., 450 U.S. 79, 87 (1981). To that end, the defendants
insisted on a valid release of the childrens' claims by the
Surrogate's Court. The defendants did not bargain for an empty
form for a release, regardless of how it was obtained.
Plaintiff cannot substitute for the promised valid releases her
lawyer's partisan prophesies of how a court would rule in the
event the defendants were to become embroiled in litigation with
the children on the question of the statute of limitations or the
enforceability of the releases she obtained under the most
questionable of circumstances.*fn21 E.
Defendants are Entitled to Specific Performance of the Settlement
Settlement agreements may be enforced by specific performance.
Kokkonen, 511 U.S. at 378; Industrial Associates, Inc. v. Goff
Corp., 787 F.2d 268
, 269 (7th Cir. 1986); Blue Cross and
Blue Shield Assn. v. American Express, 2005 U.S. Dist. LEXIS
15158 (July 25, 2005, N.D.Ill.); Cummings v. Beaton &
Associates, Inc., 249 Ill.App.3d 287
, 324, 618 N.E.2d 292
314(1st Dist. 1992). Specific performance is an equitable
remedy, which rests within the sound discretion of the trial
court based on all facts and circumstances. Daniels v.
Anderson, 162 Ill. 2d 47
, 56, 642 N.E.2d 128
Holding Co. v. Baxter Travenol Laboratories, Inc., 984 F.2d 223
227 (7th Cir. 1993). Specific performance refers to the
performance of the very thing the contract calls for. Rothner v.
Mermelstein, 219 Ill.App.3d 502
, 507, 579 N.E.2d 1022
(1st Dist. 1999).
Specific performance is available where: (1) there is a valid,
binding, and enforceable contract; (2) the party seeking specific
performance has complied with the terms of the contract or is
ready, willing, and able to; and (3) the opposing party failed or
refused to perform his part of the contract, and there is an
inadequate remedy at law. Blue Cross and Blue Shield Assn.,
supra.*fn22 Relief can be denied where the change of
circumstances would result in a peculiar hardship or would
produce an inequitable result. Gordon v. Bauer,
177 Ill.App.3d 1073, 1083, 532 N.E.2d 855, 861 (5th Dist. 1988). In the
instant case, all the prerequisites for specific performance exist.
Thus, Ms. Seymour is hereby ordered not later than December 9,
2005 to: (1) make an appropriate re-application to Judge Seibert
in the Surrogate's Court in New York; (2) submit petitions that
set forth accurately the allegations that were made in the
complaint and the amended complaints regarding her children and
the facts and circumstances of her Fair Housing Act claim as set
forth in those pleadings and in her deposition; 3) make a
reasonable allocation of a sum of money from the $40,000 payment
to be applied to her children's claims; and 4) comply in all
respects with applicable New York law in making application to
Judge Seibert. Under New York law, it shall be up to him to
determine whether the amount of the allocation selected by Ms.
Seymour is adequate.
Ordering Ms. Seymour to provide defendants with file stamped
copies of all materials to be filed with the New York Court and
provide them with seven days notice of hearings in the New York
Court is improper as a matter of specific performance since these
were not terms of the parties' settlement agreement. However,
that does not mean that a court does not have authority to
require Ms. Seymour to comply with these requirements, not as a
matter of specific performance, but to ensure that there can be
appropriate monitoring of her performance. Thus, Ms. Seymour
shall comply with these latter two requirements.
THE DEFENDANTS' REQUEST FOR ATTORNEYS' FEES
The defendants have requested an award of attorneys' fees.
However, they have cited no case to support the request; they
have neither identified those against whom they are seeking fees,
nor the basis on which a fee award should be bottomed. Is the
request for fees against the plaintiff's lawyers, the plaintiff, or both. If it is against the lawyers, are all equally
culpable and are all to bear equally the burden of any award?
These and other questions must be answered before an appropriate
fee award can be entered. It is not for a court to make the
arguments for a party and to provide the legal analysis. Cf.
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
The defendants shall have until November 15, 2005 to file a
supplemental memorandum not to exceed ten pages in support of
their request for attorneys' fees. The plaintiff shall have until
November 22, 2005 to respond. Her response may not exceed ten
pages Unless the court orders otherwise, there shall be no reply
by the defendants.
For the foregoing reasons, the defendants' motion to enforce
settlement and for attorneys fees [#43] is GRANTED in part and
DENIED in part without prejudice, and the plaintiff's motion to
enforce settlement [#41] is DENIED.
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