Chertkof v. Harry C. Weiskittel Co.

• Decision Date: 04 December 1968
• Docket Number: No. 404,404
• Citation: 251 Md. 544,248 A.2d 373
• Parties: Jack O. CHERTKOF v. HARRY C. WEISKITTEL CO., Inc.
• Court: Maryland Court of Appeals

Page 544

251 Md. 544

248 A.2d 373

Jack O. CHERTKOF v. HARRY C. WEISKITTEL CO., Inc.

No. 404.

Court of Appeals of Maryland.

Dec. 4, 1968.

Benjamin Lipsitz, Baltimore (Eleanor J. Lipsitz, Baltimore, on the brief), for appellant.

Joseph Sherbow and Robert W. Kernan (Edward F. Shea, Jr., and Sherbow, Shea & Doyle, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

The appellant Chertkof, an engineer, sued the Weiskittel Company for $135,000 claimed to be due him under a written agreement employing him as an engineering and production consultant, and Weiskittel counter-claimed alleging in case one that Chertkof's incompetent failures and wasteful deficiencies in performance constituted a breach of his express and implied warranties that he was qualified and able to perform the engineering and design services he had contracted to perform, and in case two that he had been negligent, careless and reckless in attempting to perform his agreed obligations, all with resultant large damages to Weiskittel, claimed to be $500,000.

The case came to trial in the Superior Court of Baltimore City before Judge Prendergast and a jury. The first-and as it turned out the only-witness was Chertkof, who testified the first day of the trial and most of the next day. A question as to the admissibility of evidence on negotiations between the parties came up and at that point counsel for both sides and the court apparently foresaw a revival of the possibility of settlement. When court convened on the third day, Judge Prendergast was urged by all the lawyers to see if the case could be settled. The jury was asked to retire and the judge met with counsel and then, at counsel's suggestion and with their full approval and consent, met in chambers with Chertkof and two Weiskittel principals for an initial interval of two hours, during which Chertkof says:

'I think I improssed on the Court that the first prime consideration would have to be exoneration from the counter-claim, and the Court tried to assure me that this would be in the form of a release and a judgment in favor of the defendant in the counter-claim. We didn't reach the monetary aspect of the case, or settlement until (Judge Prendergast) gave up permission to talk to our counsels and discuss that aspect.'

Judge Prendergast suggested that the parties to to lunch with their respective lawyers to review and consider what had transpired during their meeting with him and this suggestion was followed.

After lunch counsel conferred with the judge and then were replaced in chambers by the parties for a further discussion. Then the parties came out and counsel went in and, after a bit, counsel came jout into the court room and Mr. Hamilton Whiteford, Chertkof's lawyer, handed Chertkof a piece of paper on which the court had written a sum which might serve as a basis for settlement-$85,000-and Chertkof says:

'I stated I would take this in respect of the Court and that I wanted exoneration, and you assured me, sir (Judge Prendergast), that I would have this in the form of a judgment, and Court costs and it would be stipulated in the release.'

This statement of acceptance of the amount suggested by the court and of the proposed exoneration was made in chambers in the presence of counsel and the court and other details of the proposed settlement similarly were made known. It was then late in the day so it was further agreed that there would be a meeting in the morning, at which the terms of the agreement of settlement would be dictated to the court reporter.

In the morning Chertkof's lawyer and Weiskittel's lawyers appeared before Judge Prendergast in his chambers. Chertkof's lawyer advised the court that Chertkof would not attend but would like a copy of the transcript of the proceedings in open court and a copy of the settlement stipulation.

Weiskittel's lawyer dictated to the reporter the terms of the agreement reached the day before. Chertkof's lawyer did not object to the terms of the agreement as dictated nor did he indicate or suggest that what was dictated was not a complete and accurate expression of what had been agreed on.

When the dictation ended, Judge Prendergast advised the jury that 'an amicable disposition of these cases has been entered into by the parties and their counsel,' ordered the withdrawal of a juror and declared a mistrial.

The settlement agreement provided that (a) the original case would be entered, agreed and settled and a judgment for costs entered in favor of Chertkof on Weiskittel's counter-claim against him; (b) general releases would be executed by all parties and exchanged; (c) no appeals would be taken; (d) Chertkof would be given a writing obligatory for $85,000 payable, without interest, in quarterly instalments over a period of five years, with the right of prepayment at any time without penalty; the first payment would be due three months after the filing of the orders in court; and (f) the parties would not release any part of the terms agreed to to the press, Dun and Bradstreet or any other credit agency or file them in the case.

In due time the papers carrying out the settlement were forwarded to Chertkof's lawyer. Chertkof then claimed three changes should be made: (1) he wanted, as the court later characterized it, an 'apology' in the release in the following explicit form: 'It is further acknowledged that the allegations contained in the counter-suit were without foundation'; (2) he wanted Weiskittel to give up the right to prepay the $85,000; and (3) he wanted the first payment to be accelerated from three months to one month.

Weiskittel would not agree to the proposed changes, taking the position that a general release and a judgment for costs on the counter-claim were all that had been agreed to, and that the language requested would unjustifiably imply unethical conduct on the part of its lawyers who filed the counter-claim and expose its corporate successor to a possible suit for abuse of process. It saw no need or justification for giving up a right to prepay or a delay in time of payment which had been precisely agreed on.

After tender on its part and several unsuccessful demands on Chertkof for performance of his agreement, Weiskittel on July 7, 1967, filed a motion for enforcement of the settlement agreement. A hearing on the motion was held July 20, at which Chertkof and his lawyer appeared. Mr. Whiteford told the court that no answer to the motion would be filed but he wanted Chertkof to explain for himself why he felt he should not sign the settlement papers. Counsel for Weiskittel objected on the ground that the parties and their lawyers had come to a complete agreement which had been approved by the court and 'any testimony now of any character relating to subsequent matters would be improper and have no bearing on the case.' Mr. Whiteford replied that he wore two hats-one as Chertkof's advocate who 'argues very strenuously that Mr. Chertkof has a perfect right to explain why he does not want to sign a release,' and the other as an attorney in litigation who had participated in the settlement of that litigation and who, as such, could not in good conscience object to Weiskittel's objection.

Mr. Whiteford then told the court that Chertkof was dissatisfied because under the terms of the agreement 'he was entitled to exculpation from the charges made against him (in the) countersuit * * * and that the verdict in the counter-claim does not duly fulfill that purpose.'

The court then heard from Chertkof who amplified at some length essentially what we have quoted earlier. Counsel for Weiskittel were then heard, during which there was recorded a question by the court to Mr. Whiteford as to whether there was anything in the release to Chertkof 'contrary to the understanding arrived at in this stipulation * * *' and his reply was that 'it is not contrary to my understanding. It is contrary to my client's understanding in that it lacks something.'

Judge Prendergast's impression at the conclusion of the hearing was that the release to Chertkof,

'and accurately sets forth what * * * they (Weiskittel) undertook to do insofar as their obligation to execute a release of any claims which they may have against Mr. Chertkof * * *. The only matter not mentioned * * * is in effect an apology. Now, where a settlement is made between parties apologies are normally not part of the consideration for the settlement * * *. I cannot insist * * * that either release be modified so as to include what for want of a better term, I call an apology. I think if I were to do that, I would be quite arbitrary and unreasonable. I therefore feel that Mr. Chertkof ought to execute the Release.'

Judge Prendergast later made formal findings of fact and conclusions of law, including a finding that on June 7 'the parties agreed in the presence of the Court that the case of Chertkof v. Weiskittel was settled and that a judgment in favor of Chertkof for court costs would be entered in the case of Weiskittel v. Chertkof,' a finding that on June 8 'the agreement of settlement was dictated to the Court Reporter and thereafter transcribed,' and a finding that 'the settlement agreement entered into by the parties in the presence of the Court is a binding contractual obligation on all parties to this case,' and a finding that the release to Chertkof was in accordance with the...