Onischuk v. Johnson Controls, Inc., No. 2005AP2680 (Wis. App. 9/18/2007)

• Decision Date: 18 September 2007
• Docket Number: No. 2006AP1410.,No. 2005AP2680.,2005AP2680.,2006AP1410.
• Parties: Daniel Onischuk, Plaintiff-Appellant, v. Johnson Controls, Inc., David Laplant and Donald Pfieffer, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

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Daniel Onischuk, Plaintiff-Appellant, v. Johnson Controls, Inc., David Laplant and Donald Pfieffer, Defendants-Respondents.

No. 2005AP2680.

No. 2006AP1410.

Court of Appeals of Wisconsin, District I.

Opinion Filed: September 18, 2007.

APPEAL from orders of the circuit court for Milwaukee County: M. JOSEPH DONALD, Judge. Affirmed.

Before Wedemeyer, Fine and Snyder, JJ.

¶ 1 FINE, J

In this consolidated appeal, Daniel Onischuk appeals, pro se, an order dismissing his claims against his former employer, Johnson Controls, Inc., and his supervisors at Johnson Controls, David LaPlant, and Donald Pfieffer. Onischuk also appeals an order dismissing what is essentially a motion for reconsideration. Although he asserts many claims on appeal, the dispositive issue is whether a Settlement Agreement Onischuck signed "releas[ing] and forever discharg[ing]" "any and all claims" against Johnson Controls is valid. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed). We conclude that it is and affirm.

I.

¶ 2 In 1999 and 2000, Onischuk filed multiple complaints with the Equal Rights Division of the Wisconsin Department of Workforce Development, alleging that his former employer, Johnson Controls: (1) discriminated against him on the basis of "Race &/or National Origin[;] Canadian of Slavic Ancestry" (some uppercasing omitted), in violation of the Wisconsin Fair Employment Act, see WIS. STAT. §§ 111.31-111.395, and (2) retaliated against him for not working overtime, in violation of WIS. STAT. §§ 103.01-103.03, 103.96, and 111.322(2m).

¶ 3 On October 8, 2001, Johnson Controls and Onischuk negotiated and signed a "Complete and Permanent Release and Settlement Agreement." (Some uppercasing omitted.) According to the Settlement Agreement, in exchange for $1,000, Onischuk agreed that he would "not file any further complaints, cases or charges asserting any claim released in paragraph 4 below." Paragraph four provided:

[Onischuk] hereby releases and forever discharges [Johnson Controls], its parent, subsidiary, related and affiliated companies, and its and their past and present employees, directors, officers, agents, shareholders, insurers, attorneys, executors, assigns and other representatives of any other kind (referred to in this Agreement as" Released Parties") from any and all claims, demands, rights, liabilities and causes of action of any kind or nature, known or unknown, arising prior to or through the date [Onischuk] executes this Agreement, including but not limited to any claims, demands, rights, liabilities and causes of action arising or having arisen out of or in connection with [Onischuk's] employment or termination of employment with [Johnson Controls]. Complainant also releases and waives any claim or right to further compensation, benefits, damages, penalties, attorneys' fees, costs or expenses of any kind from [Johnson Controls] or any of the other Released Parties.

¶ 4 On October 11 and October 16, 2001, among other dates, Onischuk sent letters to Johnson Controls purporting to rescind the Settlement Agreement. In the letters, he claimed that he thought he was waiving only his right to "pursue the equal rights complaint," but that Johnson Controls "completely misrepresented the verbal negotiations" causing him to waive any additional claims. (Some uppercasing omitted.)

¶ 5 Johnson Controls told Onischuk that he could not unilaterally rescind the Settlement Agreement, and, in a written order, an Equal Rights Division administrative law judge dismissed Onischuk's complaint, "conclud[ing] that the circumstances did not warrant voiding the Request to Withdraw Complaint form signed by [Onischuk]."

¶ 6 On May 13, 2005, Onischuk, pro se, sued Johnson Controls in the Milwaukee County Circuit Court, asserting many employment-related claims, including retaliation, discrimination, harassment, wrongful dismissal, and defamation. Johnson Controls moved for dismissal or, in the alternative, summary judgment, claiming, as relevant, that Onischuk waived and released all claims against Johnson Controls in the October of 2001 Settlement Agreement. See WIS. STAT. RULES 802.06(2)(a)(6), 802.08(2). Onischuk argued that the Settlement Agreement was void because, as material, Johnson Controls intentionally misrepresented its terms.

¶ 7 Onischuk appeared by telephone at an August of 2005 hearing on Johnson Controls's motion. During the hearing, Onischuk told the circuit court that he did not read the Settlement Agreement before he signed it:

THE COURT: Did you read the document before you signed it?

MR. ONISCHUK: No, Your Honor. I was relying on the fact that they had a duty to reveal and to disclose and to inform me of that .... And nobody, prior to my signing, ever made me aware of the substantial changes that were reflected in the written document, and they were totally never, ever mentioned to me and never discussed.

Onischuk also told the circuit court that he did not read the Settlement Agreement because he "had a lot of emotional turmoil ... going on with [the death of] my mother and close friend[]; the abuse and discrimination that I had experienced at Johnson Controls, and also I was very upset by the present turn of events in the Equal Rights case, and I just wanted to get out of there."

¶ 8 The circuit court granted Johnson Controls's motion, finding, as material, that: (1) Onischuk "admitted to signing the Settlement Agreement and Release of Claims"; (2) Onischuk "admitted that he elected not to read the Release prior to signing it"; and (3) "the Release was not signed under any circumstances that would render it unenforceable." Based on these findings, the circuit court concluded that the "Release was a valid and enforceable contract that released and waived [Onischuk's] claims up to and through the time he executed the Release."

¶ 9 Onischuk then filed many pro se motions with the circuit court, including a "Motion[] to Reconsider," "Motion for Relief of Judgment & Order," and "Motion for New Trial," claiming, as material, that he had validly rescinded the Settlement Agreement under the Age Discrimination in Employment Act of 1967. See 29 U.S.C. § 626(f)(1)(G) (individual has seven days to revoke agreement waiving claim under Age Discrimination in Employment Act).

¶ 10 The circuit court denied Onischuk's claims in a written order, concluding that Onischuk had not submitted newly discovered evidence or established a manifest error of law or fact. See Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 416, 685 N.W.2d 853, 862 ("To prevail on a motion for reconsideration, the movant must present either newly discovered evidence or establish a manifest error of law or fact.").

II.

¶ 11 In deciding Johnson Controls's motion to dismiss or, in the alternative, motion for summary judgment, the circuit court had before it many exhibits, affidavits, and Onischuk's statements at the hearing. Accordingly, we will consider the motion as one for summary judgment. See WIS. STAT. Rule 802.06(2)(b) ("If ... matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.").¹ We review de novo a circuit court's grant of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). Summary judgment must be granted when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. WIS. STAT. RULE 802.08(2).

¶ 12 The dispositive issue on this appeal is whether Onischuk's claims are barred under the Settlement Agreement. As we have seen, the Settlement Agreement "releas[ed] and forever discharg[ed]" Johnson Controls "from any and all claims, demands, rights, liabilities and causes of action of any kind or nature, known or unknown ... arising or having arisen out of or in connection with [Onischuk's] employment or termination of employment with [Johnson Controls]." Onischuk does not dispute that this language is clear. See Cernohorsky v. Northern Liquid Gas Co., 268 Wis. 586, 593, 68 N.W.2d 429, 433 (1955) (Unambiguous language in a contract must be enforced as it is written.). Rather, he argues that the Settlement Agreement is not enforceable because, he contends that: (1) Johnson Controls misrepresented its terms during negotiations, and (2) he validly revoked it under the Age Discrimination in Employment Act. We address each claim in turn.²

¶ 13 Onischuk appears to raise a claim of intentional misrepresentation. The elements of intentional misrepresentation are: (1) the defendant made a representation of fact; (2) the representation of fact was untrue; (3) the defendant made the representation either knowing that it was untrue, or recklessly not caring whether it was true or false; (4) the defendant made the representation with the intent to deceive the plaintiff in order to induce the plaintiff to act on it to plaintiff's pecuniary damage; and (5) the plaintiff believed that the representation was true and relied on it. Ramsden v. Farm Credit Servs. of N. Cent. Wisconsin ACA, 223 Wis. 2d 704, 718-719, 590 N.W.2d 1, 7 (Ct. App. 1998).

¶ 14 An intentional misrepresentation claim may arise either from a "failure to disclose a material fact" or from a "statement of a material fact which is untrue." Id., 223 Wis. 2d at 713, 590 N.W.2d at 5. Here, Onischuk contends that Johnson Controls failed to "warn" him that the Settlement Agreement waived all of his employment-related claims against Johnson Controls, not just the claims in his complaint alleging national origin discrimination and retaliation. Onischuk's misrepresentation claim fails on the fifth element—reliance. See Hennig v. Ahearn, 230 Wis. 2d 149, 170, 601 N.W.2d 14, 24 (Ct. App. 1999) (whether reliance is justifiable may be decided as matter of law where facts are undisputed)....