Civil Procedure — arbitration

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Wisconsin Court of Appeals

Civil

Civil Procedure — arbitration

Whether an alleged oral contract eliminated the requirement to arbitrate a breach of contract claim is itself an arbitrable issue.

“The 2004 contract states that ‘[n]o amendment or modification of this Agreement shall be valid or binding upon the Company unless made in writing and signed by an officer of the Company duly authorized by the Board or upon the Executive unless made in writing and signed by him.’ Although the circuit court found that Merge’s conduct effectively created an oral contract, the record shows that no such modifications or changes eliminating an arbitration requirement were ever made in writing, as required by plain language of the 2004 contract. Mortimore’s arguments essentially reveal a process of negotiation by which Merge agreed to new contractual terms as a result of Mortimore’s position as interim-CEO. The 2004 contract contemplated that amendments or modifications, such as those negotiated between Mortimore and Merge, would be enforceable and binding only if made in writing. Thus, any dispute pertaining to the amendment or modification of the 2004 contract necessarily arises out of the 2004 contract, thereby maintaining the arbitration clause. By not challenging the validity of the 2004 contract, Mortimore implicitly agrees that if the 2004 contract controls, arbitration is required. Any determination that an alleged oral agreement superseded the 2004 contract and eliminated the requirement to arbitrate Mortimore’s breach of contract claims is a determination on the merits of Mortimore’s claim. As stated, we do not make determinations on the merits. See AT&T Tech., 475 U.S. at 648-50.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP1039 Mortimore v. Merge Technologies Inc.

Dist. I, Milwaukee County, Brash, J., Kessler, J.

Attorneys: For Appellant: Friebert, Robert H., Milwaukee; Meuler, Christopher M., Milwaukee; Summerhill, Michael J., Chicago, IL.; For Respondent: Schaalman, Michael H., Milwaukee; Perkins, Elizabeth C., Milwaukee; Splitek, Matthew, Madison