COURT OF APPEALS DECISION DATED AND RELEASED JULY 2, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3186
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GARY K. AUGUSTINE and
SANDRA J. AUGUSTINE,
Plaintiffs-Respondents,
v.
DOUGLAS MAKOS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Oconto County:
LARRY JESKE, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Douglas Makos appeals an order that
enforced a stipulation settling a boundary line dispute between Makos and Gary
and Sandra Augustine. Because we
conclude the stipulation is unenforceable, we reverse the order and remand for
further proceedings.
The facts are
undisputed. Makos and the Augustines
were involved in a declaratory action to determine boundary lines and ownership
of small parcels of property claimed by both parties. The matter was set for trial on March 14, 1995, and, in
preparation for trial, attorneys for both parties attempted to settle the
dispute through extensive negotiations.
Finally, on March 10, the parties orally agreed upon a proposed
settlement involving the exchange of property and declaration of property
lines. The Augustines' attorney then
proceeded to prepare the necessary transfer documents and a written stipulation
conforming to the oral agreement with the understanding each party would sign
the documents the following week. On
the same day, both attorneys notified the trial court's judicial assistant that
the case had been settled and, therefore, the case was removed from the trial
calendar.
The next week, however,
Makos changed his mind and told his attorney that he wanted the lawsuit
continued. He refused to sign the
stipulation and deeds. Meanwhile, the
Augustines' attorney mailed a signed stipulation and deeds to Makos' attorney
for Makos' signature. On April 10,
Makos' attorney returned the documents unsigned to the Augustines' attorney and
stated in the transmittal letter:
"What once was agreed to and seemed so simple, now has again blown
up."
In response, the
Augustines moved the trial court for an order enforcing the parties'
stipulation. The trial court found that
the phrase, "What once was agreed to and seemed so simple, now has again
blown up," was a sufficient writing to comply with a writing or memorandum
confirming the stipulation under § 807.05, Stats. Makos appeals from that order.
Section 807.05, Stats., provides:
Stipulations. No agreement, stipulation, or
consent between the parties or their attorneys, in respect to the proceedings
in an action or special proceeding shall be binding unless made in court or
during a proceeding conducted under s. 807.13 or 967.08 and entered in the
minutes or recorded by the reporter, or made in writing and subscribed by the
party to be bound thereby or the party's attorney.
The application of a
statute to a particular set of facts is a question of law we review do
novo. Estate of Cavanaugh v.
Andrade, 191 Wis.2d 244, 251-52, 528 N.W.2d 492, 495 (Ct. App.
1995). Additionally, whether a
stipulation was validly entered into is a question of law we review de
novo. Id. at 264, 528
N.W.2d at 499. It is undisputed that the stipulation was not made in court and
entered in the minutes or recorded by the reporter. The Augustines contend, however, that the letter from Makos'
attorney with the admission suggesting that an agreement had been reached but
was no longer agreeable to Makos satisfied the second part of the statute in
that it was in writing and subscribed by Makos' attorney. We disagree.
The letter begins by
confirming that "my client [Makos] will not agree to any settlement of the
matter and wants to go to trial, I am returning to you the previously drafted
documents:" The admission by
Makos' attorney that "what once was agreed to" is no more than an
admission that his client had once orally agreed to the stipulation, but had
changed his mind. We reject the
Augustines' argument that this reference to a past oral agreement that is no
longer agreeable to Makos falls within the enforcement of a written agreement
subscribed by the party's attorney.
We can understand the
trial court's concern and frustration when it removes a case from its trial
calendar believing the case has settled.
However, § 807.05, Stats.,
is specific and provides that the agreement or stipulation shall not be binding
unless made in court and entered in the minutes or recorded by the reporter or
made in writing and subscribed to by the party to be bound thereby or the
party's attorney. The transmittal
letter certainly cannot be construed as a writing by Makos' attorney agreeing
or subscribing to the stipulation. At
most, we have an attorney's reference to an oral agreement that is
unenforceable under the language of § 807.05.
Therefore, we reverse
the trial court's order enforcing the agreement under the terms of § 807.05, Stats., and remand the matter for
further proceedings.
By the Court.—Order
reversed and cause remanded.
Not recommended for
publication in the official reports.