Towers v. Wyandotte County Sheriff's Department, The et al

Filing 58

MEMORANDUM AND ORDER granting 43 Motion to Enforce Settlement Agreement; granting in part and denying in part 34 Motion to Enforce Settlement Agreement, Impose Sanctions, and Award Attorney's Fees. IT IS FURTHER ORDERED that: 1) Plaintiff shall sign the Second UG Agreement and stipulation of dismissal that she received from the Unified Government via email on July 25, 2018 within 30 days of the date of this Order. 2) Plaintiff shall sign the FOP Agreement and stipulation of dismissal that she received via email from the FOP on July 24, 2018 within 30 days of the date of this Order. 3) The stipulation of dismissal between the Unified Government and Plaintiff shall be filed within 45 days of the date of this Order. 4) The stipulati on of dismissal between the FOP and Plaintiff shall be filed within 45 days of the date of this Order. The Clerk is directed to strike Plaintiff's surreply (Doc. 52) from the record. Signed by Chief District Judge Julie A. Robinson on 12/4/2018. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CELISHA S. TOWERS,
Plaintiff,
v.

Case No. 17-2615-JAR-TJJ

WYANDOTTE COUNTY SHERIFF’S
OFFICE, ET AL.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Celisha S. Towers brought this pro se action against her former employer,
Defendant Unified Government of Wyandotte County (“Unified Government”), and her union
representative, Defendant Fraternal Order of Police, Wyandotte County Lodge #40 (“FOP”),
alleging employment discrimination claims under Title VII of the Civil Rights Act of 1964.1
Before the Court are the Unified Government’s Amended Motion to Enforce Settlement
Agreement (Doc. 43) and the FOP’s Motion to Enforce Settlement Agreement, Impose
Sanctions, and Award Attorney’s Fees (Doc. 34). The motions are fully briefed, and the Court is
prepared to rule. For the reasons set forth more fully below, the Court grants the Unified
Government’s motion, grants the FOP’s motion with respect to enforcement of the settlement
agreement, and denies the FOP’s request for attorney’s fees.

1

Although Plaintiff initially named the Wyandotte County Sheriff’s Office as a defendant, on October 4,
2018, United States Magistrate Judge Teresa J. James issued an Order (Doc. 44) granting the Unified Government’s
Motion to Substitute Party Defendant, which substituted the Unified Government as a defendant in place of the
Sheriff’s Office.

I.

Plaintiff’s Supplemental Response
As an initial matter, on November 5, 2018, after the motions were fully briefed, Plaintiff

filed an additional pleading opposing both the FOP’s and the Unified Government’s motions to
enforce settlement (Doc. 52).2 The FOP responded to Plaintiff’s supplemental filing on
November 19, 2018, arguing that the Court should construe the filing as a surreply and disregard
it because Plaintiff did not seek leave of court in accordance with the Local Rules.3
The Court agrees with the FOP that Plaintiff’s November 5 filing is properly construed as
a surreply. D. Kan. Rule 15.1 governs the filing of pleadings that may not be filed as a matter of
right, including surreplies. Under that rule, a party seeking leave to file a surreply is to attach its
proposed filing to the motion for the court’s review.4 Here, Plaintiff simply filed her surreply
without leave of court. The Court is mindful that “if the court relies on new materials or new
arguments in a reply brief, it may not forbid the nonmovant from responding to those new
materials.”5 However, neither the FOP nor the Unified Government relied on new material or
new arguments in their reply briefs. Moreover, Plaintiff makes no new arguments in her
surreply, and except for the addition of a settlement document containing an FOP
representative’s notarized signature, her surreply is in fact nearly identical to her Response to the
Unified Government’s motion to enforce settlement agreement.6 Therefore, the Court denies

2

Plaintiff’s additional pleading is titled, “Plaintiff’s Motion Opposing Defendant Fraternal Order of Police
Wyandotte County, Lodge #40, and Unified Govt. of Wyandotte County, Kansas City Kansas/ Wyandotte County
Sheriff Office Motion to Enforce Settlement Agreement, Deny Impose Sanctions, and Deny Award of Attorney’s
Fees.”
3

Doc. 57.

4

D. Kan. Rule 15.1.

5

Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (citation omitted).

6

Doc. 46; cf. Jenkins-Dyer v. Wood, No. 13-cv-2489-JAR, 2014 WL 4261279, at *2 (D. Kan. Aug. 29,
2014) (allowing a pro se plaintiff to file surreplies absent both a motion for leave to file and new arguments in the
defendants’ replies when the plaintiff cited new authorities and made new arguments in her surreply and the case
had a convoluted procedural history).

2

Plaintiff leave to file a surreply, strikes her supplemental filing from the record, and disregards
that filing in issuing this Order.
II.

Background
In a July 15, 2016 letter, Wyandotte County Sheriff Donald Ash notified Plaintiff, a

Sheriff’s Deputy, that her employment with the Wyandotte County Sheriff’s Office (“Sheriff’s
Office”) was terminated effective July 7, 2016 for violating the Unified Government’s residency
policy.7 Subsequently, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission and was issued a right-to-sue letter. Plaintiff filed this lawsuit on
October 23, 2017, claiming she was discharged because of her race in violation of Title VII.
On July 10, 2018, Plaintiff and Jane Wilson, an attorney with the Unified Government’s
Legal Department, discussed settling Plaintiff’s case over email. Plaintiff indicated a willingness
to settle her lawsuit against the Sheriff’s Office if (1) the termination of her employment was
removed from her record, (2) in lieu of termination, her record showed she had resigned, and (3)
she was provided with a letter of recommendation from the Sheriff and Undersheriff on company
letterhead.8 When Wilson responded that the Sheriff’s Office was unable to provide a letter of
recommendation, Plaintiff stated that she would still be willing to “vacate proceedings” if her
termination was changed to a resignation.9 Later on July 10, Henry Couchman, also counsel for
the Unified Government, emailed Plaintiff the following settlement offer:
The Unified Government agrees to convert your termination to a
resignation in return for your agreement to release all claims
against the Unified Government and its employees and Sheriff Ash
and to dismiss your lawsuit with prejudice. Each party will be
responsible for its own costs. We will draw up a settlement
agreement with these terms and will take the necessary steps to see
7

Doc. 43-1, Ex. 1.

8

Doc. 43-1, Ex. 2.

9

Id.

3

that your personnel file reflects that you resigned from your
employment. We will provide you with documentation to confirm
that we have taken these steps. If you want to draft a brief letter of
resignation, we can place it in your personnel file. We will also
draw up a Stipulation of Dismissal for filing with the Court.10
Couchman concluded the email by stating, “If these terms are satisfactory, we have a settlement.
Please respond ASAP and indicate your agreement. Let me know if you have any questions.”11
Shortly after, Plaintiff responded to Couchman’s email stating, “Yes I agree to these terms as the
Plaintiff.”12
Also on July 10, 2018, Matthew Huntsman, the FOP’s counsel, emailed Plaintiff offering
not to pursue attorney’s fees against Plaintiff if she agreed to dismiss her case against the FOP.13
On July 12, Plaintiff responded through email, “Make it happen!”14 Huntsman responded,
“Thank you for your acceptance of our offer. I feel it will be most efficient [for] us to join on the
settlement agreement you have reached with the Unified Government. I will contact them to let
them know.”15 Plaintiff replied, “Awesome! Your [sic] welcome[.]”16
On July 11, 2018, Couchman emailed United States Magistrate Judge Gerald Rushfelt,
stating that “[t]he plaintiff, Ms. Towers, and Defendant Wyandotte County Sheriff’s Office have
reached an agreement on settlement of this case,” and that he anticipated the parties would file a
stipulation of dismissal within twenty-one days.17 Couchman copied Plaintiff and the FOP’s

10

Doc. 43-1, Ex. 3.

11

Id.

12

Doc. 43-1, Ex. 4.

13

Doc. 35, Attach. A.

14

Id.

15

Id.

16

Id.

17

Doc. 43-1, Ex. 5.

4

counsel on the email. On July 18, 2018, Plaintiff communicated the existence of a settlement
agreement with the FOP to Judge Rushfelt’s chambers via email, stating: “The Plaintiff Celisha
Towers came to a settlement agreement with the co-defendants Fraternal Order of Police. They
will produce a joint stipulation agreement with the Wyandotte County Sheriff Office.”18 Plaintiff
copied Couchman and Huntsman on her July 18 email to Judge Rushfelt.
Couchman emailed Plaintiff on July 18, 2018, requesting that she send him a copy of the
resignation letter she planned to submit so that he could attach it to the settlement agreement.19
The same day, Plaintiff responded “Absolutely!” and requested a copy of the settlement
agreement.20 On July 20, Plaintiff sent Couchman the contents of her resignation letter in the
body of an email, stating: “Effective immediately I Celisha Towers resign from my position as
Deputy Sheriff with Wyandotte County Sheriff Office.”21
On July 20, 2018, Couchman emailed Plaintiff a draft settlement agreement (“Initial UG
Agreement”), draft letter of resignation, draft revised Personal Action Notice (“PAN”), draft
stipulation of dismissal, and draft order of dismissal.22 He copied the FOP’s attorneys on that
email. Couchman requested that Plaintiff review the documents, and that if they met her
approval, to print, sign, and return to him the Initial UG Agreement, letter of resignation,
stipulation of dismissal, and order of dismissal.
Later on July 20, Plaintiff emailed Couchman and expressed disagreement with the Initial
UG Agreement, stating:

18

Doc. 35, Attach. B.

19

Doc. 43-1, Ex. 7.

20

Doc. 43-1, Ex. 8.

21

Doc. 43-1, Ex. 9.

22

Doc. 43-1, Ex. 10.

5

I don’t agree with the terms. That is a false resignation letter. July
7 was not my termination date. This is not what I said the
settlement will be. I only agreed to release charges. I will retype
the paperwork and if both defendants can’t type up what the
agreement was then we can continue court proceedings.23
Couchman responded, stating that the Initial UG Agreement reflected the terms of the agreement
as he understood them from the email exchange, that the release language was standard, and that
because Plaintiff’s termination was effective July 7, 2016, it made sense for the resignation letter
to contain the same date.24 Plaintiff replied to Couchman’s email stating her belief that the terms
of the Initial UG Agreement were not what the parties had discussed.25 She again raised the
issue of the termination letter date and further stated that because the Sheriff’s Office had added
“parts” to the agreement, she would as well.26 Specifically, she stated that “[i]f parties can[’]t
agree, then I am prepared to continue with court proceedings. The $50,000 of back pay is on the
table now for me to sign this agreement.”27
On July 24, 2018, Sean Carver, also counsel for the FOP, informed Plaintiff that he was
aware that she had objected to the language in the documents prepared by the Unified
Government. He sent Plaintiff a separate settlement agreement (“FOP Agreement”), order of
dismissal, and stipulation of dismissal on the FOP’s behalf, stating: “I have prepared the
following documents to comport with the agreement you made with the Union. Please sign and
return to my office. While these documents only resolve the case with the Union, I have
included the UG’s attorneys to keep them in the loop.”28 The FOP Agreement included two

23

Doc. 43-1, Ex. 11.

24

Doc. 43-1, Ex. 12.

25

Doc. 43-1, Ex. 13.

26

Id.

27

Id.

28

Doc. 35, Attach. E.

6

terms: (1) that Plaintiff dismiss her action against the FOP with prejudice, and (2) that the FOP
would not seek attorney’s fees and costs from Plaintiff in the case.29
On July 25, 2018, Couchman emailed Plaintiff a revised draft settlement agreement
(“Second UG Agreement”), stipulation of dismissal, and order of dismissal. He copied the
FOP’s counsel and explained,
I have revised the Settlement in a way that I hope will address your
concerns. I cannot change the end date of your employment. Your
resignation must be effective July 7, 2016. I have taken out the
provision for a resignation letter but can put it back in . . . FOP #40
has sent you a separate proposed settlement agreement, so I have
removed them . . . . I also have revised the Stipulation of Dismissal
and Order of Dismissal to indicate that you are dismissing your
claims against the Wyandotte County Sheriff’s Office.30
Couchman requested that Plaintiff sign and return the Second UG Agreement if it met her
approval, and offered to address any of her remaining concerns. The Second UG Agreement did
not specify that Plaintiff would provide a resignation letter, but did state that Plaintiff would be
allowed to resign her employment effective July 7, 2016, and that the Sheriff’s Office would
rescind her termination. The Second UG Agreement included a single-sentence release, stating
that “Towers releases the Unified Government, the Sheriff’s Office, and their current and former
officials, employees, and agents, including Sheriff Donald Ash, from all claims that have arisen
before the execution of this agreement,” and also included the term that Plaintiff “agrees to
dismiss with prejudice all claims” she made in her lawsuit.31
The next morning, on July 26, 2018, Plaintiff responded to Couchman’s email,
demanding $50,000 in back-pay to sign any order of dismissal and stating:

29

Id.

30

Doc. 43-1, Ex. 14.

31

Doc. 43-1, Ex. 14-1.

7

Mr. Couchman the $50,000 counter-offer of back pay settlement
stands with the Sheriff Office in order for me to sign any order of
dismissal. All parties can continue court proceedings. From my
understanding we have a Mediation Notice or a Confidential
Settlement report due to the Magistrate Judge by tomorrow on
7/27/2018. In addition, I will pause the Settlement Offer and
continue court proceedings with the Fraternal Order of Police
Lodge #40 to ensure a strong case if taken to trial until Wyandotte
County Sheriff Office and the Unified Government decide to settle
with my counter offer.32
Couchman responded, stating: “We already have agreed on a settlement. Our emails to each
other document the agreement. If you are unwilling to sign a settlement agreement that contains
the terms we agreed on, I will file a motion with the court to enforce the settlement.”33 Plaintiff
responded: “You decided to add several terms in that settlement that I didn’t agree on which
made an automatic counter offer. I denied that offer and submitted a counter-offer. . . .”34
On July 27, 2018, after reviewing the documents the FOP emailed to her on July 24,
Plaintiff advised Huntsman, “if you could get the FOP paperwork signed and I will pick up the
documents to go get notorized [sic] outside the office. I prefer to use my own notoray [sic] with
already signed paperwork.”35 The FOP and Plaintiff subsequently worked out logistics for
getting the documents signed and notarized. On August 10, 2018, Plaintiff advised Huntsman, “I
am currently on vacation. I will send an email once I return to pick the paperwork up from your
office to be signed and Notorized [sic].”36 On August 27, Plaintiff requested that a scanned copy

32

Doc. 43-1, Ex. 15.

33

Doc. 43-1, Ex. 16.

34

Doc. 46-1 at 4.

35

Doc 35, Attach. F.

36

Doc. 35, Attach. G.

8

of the agreement signed by the FOP be emailed to her.37 On August 31, 2018, Plaintiff emailed
Huntsman, stating:
The Plaintiff has decided to not sign any settlement offer and will
maintain her full legal rights against all parties to prove her
discrimination charges in Federal Court unless Ms. Towers is
compensated at a minimum $50,000 of the back pay owed to her
by the defendants Wyandotte County Sheriff Office and Fraternal
Order of Police, and the termination removed from her record.
Enjoy your day!38
On September 24, 2018, Couchman emailed Plaintiff, informing her that he was
preparing to file a motion to enforce the settlement agreement reached on July 10 and giving her
a last opportunity to sign the revised documents he had emailed her on July 25.39 Plaintiff
replied, “Good Luck!”40
III.

Discussion
Settlements are favored by the Tenth Circuit,41 and “[t]he trial court has the power to

summarily enforce a settlement agreement entered into by the litigants while the litigation is
pending before it.”42 In resolving issues of contract formation and construction of a purported
settlement agreement, the Court applies state law.43 The parties do not dispute that Kansas law
applies here.

37

Doc. 35, Attach. I.

38

Id.

39

Doc. 43-1, Ex. 18.

40

Id.

41

See Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 758 (10th Cir. 1993), aff’d, 511 U.S. 863

42

Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004).

(1994).
43
Id. Plaintiff argues that Defendants cannot bring their motions to enforce settlement in federal court
because the issues involve state contract law. Doc. 46 at 15–16 and Doc. 48-1 at 1–2. However, it is wellestablished that a federal district court can decide a motion brought to enforce a settlement agreement in a case
pending before it. United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993) (“A trial court has the power to
summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it.”);
Brown v. City of Bel Aire, Kan., No. 11-1307-MLB, 2013 WL 394204, at *2 (D. Kan. Feb. 1, 2013) (quoting

9

To be enforceable, a settlement must contain a “meeting of the minds on all essential
terms and the parties must intend to be bound.”44 To ascertain whether the parties intended to be
bound by a settlement agreement, the court determines whether the parties’ “outward expression
of assent is sufficient to form a contract.”45
“Settlement agreements need not be in writing to be enforceable under Kansas law.”46
“Parties can bind themselves to a contract orally or by informal letters or e-mails.”47 Finding
otherwise would have a “chilling effect” on the parties’ ability to rely on such forms of
communication.48 Likewise, parties may intend to be bound by an agreement even though they
contemplate incorporating into their agreement new matters to be agreed upon later.49 Thus,
“[t]he fact that the parties contemplate the subsequent execution of a formal instrument as
evidence of their agreement does not necessarily imply they have not already bound themselves
to a definite and enforceable contract.”50 However,
Where the intent of the parties is clear that they are negotiating
with a definite understanding [that] the terms of any contract are
not fully agreed upon and a written formal agreement is
contemplated, and no valid, enforceable contract is to exist until

Hardage, 982 F.2d at 1496) (“The district court may ‘summarily enforce a settlement agreement’ which was
reached by the parties.”).
44

U.S. ex rel. Quality Tr., Inc. v. Cajun Contractors, Inc., No. 04-4157-SAC, 2008 WL 410121, at *6 (D.
Kan. Feb. 13, 2008).
45

Sw. & Assocs. v. Steven Enters., LLC, 88 P.3d 1249, 1249 (Kan. Ct. App. 2004) (quoting 1 Lord,
Williston on Contracts § 4:1, p. 241 (1990)).
46

Lowery v. Cty. of Riley, 738 F. Supp. 2d 1159, 1168 (D. Kan. 2010) (citing Lewis v. Gilbert, 785 P.2d
1367, 1368 (Kan. Ct. App. 1990)).
47

Murphey v. Mid-Century Ins. Co., No 13-2598-JAR-JPO, 2014 WL 2619073, at *4 (D. Kan. June 12,

48

Id.

49

Phillips & Easton Supply Co. v. Eleanor Int’l, Inc., 512 P.2d 379, 384 (Kan. 1973).

2014).

50
U.S. ex rel. Quality Tr., Inc. v. Cajun Contractors, Inc., No. 04-4157-SAC, 2008 WL 410121, at *6 (D.
Kan. Feb. 13, 2018) (quoting Weil & Assocs. v. Urban Renewal Agency, 479 P.2d 875, Syl. ¶6 (1971)).

10

the execution of such an agreement, a binding contract does not
come into existence in the absence of such execution.51
“Ordinarily, a party who knowingly and voluntarily authorizes the settlement of her
claims cannot avoid the terms of the settlement simply because she changes her mind.”52 In
Kansas, “in the absence of bad faith or fraud, when parties enter into an agreement settling and
adjusting a dispute, neither party is permitted to repudiate it.”53
Where material facts concerning the existence or terms of an agreement to settle are in
dispute, the parties must be allowed an evidentiary hearing.54 Here, none of the parties request
an evidentiary hearing, and a hearing is not necessary because there is no dispute of material fact
bearing on the existence of the settlement or its terms.55 Rather, all material facts pertaining to
the settlement are found in email discussions between Plaintiff and Defendants, which the parties
have provided to the Court. The Court finds that Plaintiff entered into two valid and enforceable
settlement agreements—one with the Unified Government, and the other with the FOP.
A.

Settlement with the Unified Government

Plaintiff’s and the Unified Government’s actions demonstrate their intent to enter into a
valid, enforceable settlement agreement. The emails produced by the Unified Government
establish that Plaintiff and the Unified Government came to a meeting of the minds on all

51

Id.

52

See Krantz v. Univ. of Kan., 21 P.3d 561, 567 (Kan. 2001) (discussing repudiation in the context of a
settlement agreement).
53

Id.

54

United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993).

55

Cf. TSYS Merch. Sols., LLC v. Pipeline Prods., Inc., No. 16-4024-SAC, 2016 WL 4702419, at *5 (D.
Kan. Sept. 8. 2016) (quoting Sump v. Pamida, Inc., No. 16-4024-SAC, 1998 WL 1054949, at *1 (D. Kan. Nov. 25,
1998)) (“No evidentiary hearing is required where an agreement is clear and unambiguous and no issue of fact is
present.”); Jaax v. Sheriff Dep’t of Johnson Cty. Kan., No. 11-2522-CM, 2012 WL 393891, at *4 (D. Kan. Sept. 10,
2012) (finding an evidentiary hearing unwarranted when there was no substantial factual dispute regarding the terms
of the agreement because the parties had entered into fully integrated written agreements).

11

essential terms of a settlement agreement and intended to be bound. Plaintiff and the Unified
Government entered into a valid settlement agreement when Plaintiff accepted the terms of the
Unified Government’s settlement offer on July 10, 2018.
Specifically, in Couchman’s July 10, 2018 email to Plaintiff, the Unified Government
offered to convert Plaintiff’s termination to a resignation in exchange for Plaintiff releasing all
claims against the Unified Government, its employees, and Sheriff Ash, and dismissing her
lawsuit with prejudice. Additionally, Couchman stated that each party would be responsible for
its own costs. Plaintiff indicated her agreement to this offer in her email response, stating: “Yes
I agree to these terms as the Plaintiff.”56 Thus, the parties agreed on the essential terms in
dispute,57 and the email describing that agreement specifically called for preparation of a final
settlement document, which Couchman agreed to prepare. Moreover, when Couchman, on
behalf of the Unified Government, emailed Judge Rushfelt’s Chambers indicating that the two
parties had agreed to settle the case and anticipated filing a stipulation of dismissal within
twenty-one days, Plaintiff did not object to this statement. To the contrary, Plaintiff
demonstrated her intent to be bound by the settlement agreement when Plaintiff sent Judge
Rushfelt’s Chambers her own email on July 18 stating that she had come to a settlement
agreement “with the co-defendants Fraternal Order of Police. They will provide a joint
stipulation agreement with the Wyandotte County Sheriff Office.”58
Although a formalized document did not exist at the time of the July 10 agreement, the
Court finds that the Unified Government and Plaintiff entered into a valid settlement agreement

56

Doc. 43-1, Ex. 4.

57

See Meek & Assocs., Inc. v. First Union Ins. Grp., Civ. A. No. 99-2519-CM, 2002 WL 1998204, at *3
(D. Kan. Aug. 6, 2002) (finding that “the parties had an agreement as to the essential terms of the contract, in that
plaintiff agreed to settle the case in exchange for payment”).
58

Doc. 35, Attach. B.

12

through their email conversations. The record does not suggest that either the Unified
Government or Plaintiff understood that the terms of the settlement agreement would not be
agreed upon until the completion of a written, formal agreement. When Plaintiff responded to
Couchman’s email on July 10, agreeing to the terms, she knew that the Unified Government
would draft a settlement agreement reflecting those terms. Because Plaintiff did not make her
agreement contingent upon reading and agreeing to all the terms in the agreement to be drafted
by Couchman, the fact that Couchman included additional, standard language in his draft of the
agreement does not preclude a finding that Plaintiff and the Unified Government entered into a
valid settlement agreement.59
Plaintiff argues that she thought the draft settlement agreement prepared by Couchman
constituted a counter-offer because of the existence of “additional terms.” However, as
previously discussed, the parties entered into a valid settlement agreement on July 10, and
Plaintiff’s remedy to enforce this agreement if she disagreed with the written settlement was by
bringing a motion to enforce the agreed terms.60 Further, besides the release terms, which under
Kansas law are not essential terms of an agreement,61 Plaintiff does not articulate which terms
she disagrees with. In the ordinary course of settling litigation, documents implementing the
settlement agreement are typically and necessarily left for future handling by the parties.62

59

See Brown v. City of Bel Aire, Kan., No. 11-1307-MLB, 2013 WL 394204, at *3 (D. Kan. Feb. 1, 2013)
(enforcing a settlement agreement where the terms had not yet been drafted when the parties had a clear meeting of
the minds on the essential terms and the plaintiff “did not make his agreement contingent upon reading and agreeing
to the terms in the yet to be drafted settlement agreement”); Bridges v. Arch Aluminum & Glass Co., No. 05-2374CM, 2007 WL 101771, at *2 (D. Kan. Jan. 9, 2007) (citing Meek & Assocs., 2002 WL 1998204, at *3) (explaining
that under Kansas law, release terms are not essential terms of an agreement).
60
See Bridges, 2007 WL 101771, at *2 (granting the plaintiff’s motion to enforce oral settlement agreement
when the parties disputed what terms were to be included in the final, written agreement).
61

Id. (citing Meek & Assocs., 2002 WL 1998204, at *3).

62

Hill v. Hutchinson Care Ctr., L.L.C., No. 111,615, 2015 WL 5927073, at * 7 (Kan. Ct. App. Oct. 9,
2015); see Brown, 2013 WL 394204, at *3 (quoting Sump v. Pamida, Inc., No. 97-4085, 1998 WL 1054949, at *2

13

Therefore, the addition of standard release terms in the formal written agreement does not
invalidate the parties’ previous settlement agreement. Moreover, in response to the Unified
Government’s motion, Plaintiff acknowledges that the Second UG Agreement reflects the
essential terms that she and the Unified Government had negotiated.63 Thus, the Court finds that
Plaintiff and the Unified Government entered into a valid, enforceable settlement agreement
which could only be repudiated for bad faith or fraud.64
Plaintiff, however, has not shown that grounds for repudiation exist in this case. Plaintiff
does not argue that the Unified Government or the Sheriff’s Office engaged in bad faith or fraud,
and the record does not support a finding of bad faith or fraud to justify Plaintiff’s repudiation of
the settlement agreement.
Instead of arguing the existence of bad faith or fraud, Plaintiff responds that it is the
Unified Government that wrongfully repudiated the settlement agreement. First, as repudiation
necessitates a valid agreement,65 the Court notes that through this argument, Plaintiff
acknowledges that she and the Unified Government entered into an enforceable settlement
agreement. Specifically, Plaintiff argues that the Unified Government repudiated the settlement
agreement because the Initial UG Agreement provided to Plaintiff added release terms and a
joint stipulation of dismissal. Although the Initial UG Agreement contained new release terms,
as previously discussed, these are not essential to the agreement,66 especially as Plaintiff had

(D. Kan. Nov. 25, 1998)) (“Moreover, ‘the fact that the parties left some details for counsel to work out during later
negotiations cannot be used to abrogate an otherwise valid agreement.’”).
63

See Doc. 46 at 3 (“The revised Agreement reflects the essential terms of the settlement offer discussed
between the Wyandotte County Office/Unified Government counsel prior to the Defendant’s counsel effectively
repudiating the agreement . . . .”).
64

Krantz v. Univ. of Kan., 21 P.3d 561, 567 (Kan. 2001).

65

See id.

66
Bridges v. Arch Aluminum & Glass Co., 2007 WL 101771, at *2 (D. Kan. Jan. 9, 2007) (citing Meek &
Assocs. v. First Union Ins. Grp., No. 99-2519-CM, 2002 WL 1998204, at *3 (D. Kan. Aug. 6, 2002)).

14

already agreed to release her claims against the Unified Government. Thus, Plaintiff’s argument
that the Unified Government repudiated the agreement by including standard release terms fails.
To the extent that Plaintiff may also disagree with the date of her resignation being July
7, 2015, as suggested by her emails to Couchman, the effective date of her resignation is not a
material or essential term of the settlement agreement. The material terms of a settlement
agreement typically include “references to the case, the parties, the plaintiff’s promise to dismiss
the lawsuit and release liability, and the payment of settlement monies by the defendant.”67 In
Lessley v. Hardage, the Kansas Supreme Court found that “the precise amount to which plaintiff
[was] entitled [was not] an essential term of the agreement, where the amount can readily be
determined.”68 Similarly, here, the Court finds that the effective date of Plaintiff’s resignation is
not an essential term of the settlement—on July 10, 2016 the parties simply agreed that
Plaintiff’s termination would be converted to a resignation in exchange for her dismissing her
lawsuit against the Unified Government. Moreover, the undisputed facts establish that Plaintiff’s
termination was effective July 7, 2016; it reasonably follows that her resignation would be
effective on the same date, as the parties agreed that the Unified Government would “convert
[Plaintiff’s] termination to a resignation.”69 Thus, to the extent Plaintiff argues that specifying
the date of her resignation constitutes repudiation, her argument fails.
Plaintiff also briefly argues that mutual mistake prevented the formation of a valid

67

Hill v. Hutchinson Care Ctr., L.L.C., No. 111,615, 2015 WL 5927073, at * 7 (Kan. Ct. App. Oct. 9,

2015).
68

727 P.2d 440, 448 (Kan. 1986); see also Arrowhead Constr. Co. v. Essex Corp., 662 P.2d 1195, 1201–02
(Kan. 1983) (citing Restatement (Second) of Contracts § 33 (1981)) (exclusion of one term to an agreement is not
fatal to the formation of a contract); O’Neill v. Herrington, 317 P.3d 139, 146 (Kan. Ct. App. 2014) (finding that the
inclusion of the parties’ former attorneys’ names in a release was not a “material detail” of the contract).
69

Doc. 43-1, Ex. 3; see O’Neill, at 145 (citing NEA-Coffeyville v. U.S.C. No 445, 996 P.2d 821, 829–31
(Kan. 2000)) (explaining that, once parties reach a settlement agreement on all material terms, “any nonmaterial
discrepancies can be resolved by the court consistent with the parties’ intent when they agreed upon the material
terms”).

15

settlement agreement. In Kansas, to succeed on a claim of mutual mistake, “the mistake must
‘be as to past or present fact material to the contract . . . .’”70 However, Plaintiff does not
identify any mistake of material fact that caused the Unified Government and Plaintiff to enter
into the settlement agreement. Instead, she argues that the Unified Government did not make the
initial settlement offer because it simply repeated terms she originally proposed during
negotiations. Moreover, the undisputed facts do not support a finding that there was a mutual
mistake of material fact.
Therefore, under these circumstances, the Court enforces the settlement agreement
reached by the Unified Government and Plaintiff on July 10, 2018, the terms of which are found
in the Second UG Agreement Couchman emailed Plaintiff on July 25, 2018. Under the terms of
the agreement, Plaintiff shall dismiss her claims with prejudice against the Unified Government,
and the Unified Government shall rescind the termination of Plaintiff’s employment and allow
her to resign her employment, which will be effective July 7, 2016. Plaintiff shall sign the
Second UG Agreement and stipulation of dismissal provided to her on July 25, 2018.71
B.

Settlement with the FOP

Similarly, the Court finds that Plaintiff and the FOP entered into a valid settlement
agreement. Although Plaintiff argues that “the parties did not agree to all material terms,”72 this

70

Krantz, 21 P.3d at 569 (quoting McMillin v. Farmers & Bankers Life Ins. Co., 206 P.2d 1061, 1065
(Kan. 1949)).
71

Doc. 43-1, Ex. 14-1 and 14-2.

72

Doc 48-1 at 2. In response to the FOP’s motion to enforce settlement, Plaintiff also asserts that
enforcing the settlement agreement and dismissing the lawsuit will deprive the Court of subject matter jurisdiction.
Doc. 48-1. This argument is without merit because, as previously discussed, the Court has the power to “enforce a
settlement agreement entered into by the litigants while the litigation is pending before it.” United States v.
Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993). Similarly, Plaintiff’s argument that the settlement agreement “does
not comply with the Code of Civil Procedure” because it “was not signed by all parties nor was it made orally before
the court” is unavailing. Doc. 48-1 at 1. Nothing in the Federal Rules of Civil Procedure or the Local Rules
requires that a settlement agreement be signed by all the parties or made orally before the court to be enforceable.
The only requirements are a meeting of minds as to the essential terms of the agreement and an intent to be bound,

16

argument is contrary to the undisputed facts. Despite the parties contemplating the future
execution of a formal, written settlement agreement, the emails submitted by the FOP establish
that the FOP and Plaintiff came to a meeting of the minds on all essential terms of a settlement
and intended to be bound.
On July 10, 2018, the FOP emailed Plaintiff offering not to pursue attorney’s fees if
Plaintiff agreed to dismiss her case. Plaintiff accepted the FOP’s settlement offer on July 12,
when she responded to the email stating, “Make it happen.”73 Thus, Plaintiff and the FOP
entered into a valid settlement agreement via email on July 12, 2018. The subsequent emails
whereby Plaintiff and the FOP discuss the logistics of the settlement also support the finding that
Plaintiff and the FOP entered into an enforceable agreement.74 Plaintiff further signified her
acceptance and intent to be bound in her July 18, 2018 email Judge Rushfelt’s Chambers, stating
“[t]he Plaintiff Celisha Towers came to a settlement agreement with the co-defendants Fraternal
Order of Police” and explaining that the Unified Government was preparing joint settlement
documents.75
Moreover, as explained above, the fact that the parties did not execute a formal, written
settlement agreement at the time they reached a settlement does not prevent the Court from
finding the existence of a valid and enforceable settlement. The record does not support a
finding that either Plaintiff or the FOP clearly intended to negotiate based on an understanding
that the terms of the contract were not fully agreed upon until the execution of a formal

which, as discussed in the body of this Order, are present.
73

Doc. 35, Attach. A.

74

Doc. 35, Attachs. A, F, & G.

75

Doc. 35, Attach. B.

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settlement agreement.76 Similarly, Plaintiff did not make her acceptance of the FOP’s settlement
contingent on her agreement with the terms of the written settlement agreement.77 Therefore, the
Court finds that based on Plaintiff’s and the FOP’s actions, the parties entered into an
enforceable settlement agreement that could only be repudiated for bad faith or fraud.78
As with respect to her agreement with the Unified Government, Plaintiff has not
established that grounds exist for repudiating her settlement with the FOP. Plaintiff does not
allege that the FOP engaged in bad faith or fraud, and the record does not support a finding of
bad faith or fraud. Instead, the facts demonstrate that after numerous emails with the FOP’s
counsel discussing the settlement, Plaintiff simply asserted in her August 31, 2018 email to
counsel that she refused to sign any settlement agreement.
Under these circumstances, the Court enforces the settlement reached by the FOP and
Plaintiff on July 12, 2018, the terms of which are in the FOP Agreement emailed to Plaintiff.
Under the terms of the agreement, Plaintiff shall dismiss her claims with prejudice against the
FOP, and the FOP shall not pursue attorney’s fees. Plaintiff shall sign the FOP Agreement and
stipulation of dismissal that the FOP provided to her.79
C.

The FOP’s Request for Attorney’s Fees

The FOP requests that the Court sanction Plaintiff by awarding the FOP attorney’s fees
associated with filing its motion to enforce the settlement agreement. Under 28 U.S.C. § 1927,
“any attorney or other person admitted to conduct cases in any court . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
76
U.S. ex rel. Quality Tr., Inc. v. Cajun Contractors, Inc., No. 04-4157-SAC, 2008 WL 410121, at *6 (D.
Kan. Feb. 13, 2018) (quoting Weil & Assocs. v. Urban Renewal Agency, 479 P.2d 875, Syl. ¶6 (Kan. 1971)).
77

See Brown v. City of Bel Aire, Kan., No. 11-1307-MLB, 2013 WL 394204, at *3 (D. Kan. Feb. 1, 2013).

78

Krantz v. Univ. of Kan., 21 P.3d 561, 567 (Kan. 2001).

79

Doc. 35, Attach. E.

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personally the excess costs, expenses and attorneys’ fees reasonably incurred because of such
conduct.” The FOP argues that the Court should award attorney’s fees because Plaintiff’s only
communicated reason for repudiating her settlement agreement with the FOP was that she
wanted to “ensure a strong case” against the Unified Government.
The Court finds that Plaintiff’s conduct does not warrant an order that she pay attorney’s
fees incurred by the FOP in bringing this motion.80 Although ultimately unpersuasive, Plaintiff
sufficiently argued why she believed she never entered into a binding settlement offer with either
the FOP or the Unified Government. Moreover, in the email the FOP relies on to establish
Plaintiff’s inappropriate conduct, Plaintiff refers to a “Settlement Offer,” not a settlement
agreement, which supports her contention, albeit incorrect, that there was no binding agreement
because the parties had not executed a signed, written document. Therefore, the Court denies the
FOP’s request for attorney’s fees.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Unified
Government’s Amended Motion to Enforce Settlement Agreement (Doc. 43) is granted and that
the Defendant Fraternal Order of Police, Wyandotte County Lodge #40’s Motion to Enforce
Settlement Agreement, Impose Sanctions, and Award Attorney’s Fees (Doc. 34) is granted in
part and denied in part.

80

Courts are split as to whether 28 U.S.C. § 1927 applies to pro se litigants. See Balcar v. Bell and Assocs.,
LLC, 295 F. Supp. 2d 635, 639–40 (N.D.W. Va. 2003) (finding that § 1927 does not apply to pro se litigants, only
licensed attorneys); Wages v. IRS, 915 F.2d 1230, 1235–36 (Alaska 1990) (finding that § 1927 applies to pro se
litigants). The Court need not address this issue, however, as Plaintiff’s conduct does not warrant an order that she
pay attorney’s fees.

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IT IS FURTHER ORDERED that:
1) Plaintiff shall sign the Second UG Agreement and stipulation of dismissal that she
received from the Unified Government via email on July 25, 2018 within 30 days of
the date of this Order.
2) Plaintiff shall sign the FOP Agreement and stipulation of dismissal that she received
via email from the FOP on July 24, 2018 within 30 days of the date of this Order.
3) The stipulation of dismissal between the Unified Government and Plaintiff shall be
filed within 45 days of the date of this Order
4) The stipulation of dismissal between the FOP and Plaintiff shall be filed within 45
days of the date of this Order.
The Clerk is directed to strike Plaintiff’s surreply (Doc. 52) from the record.
IT IS SO ORDERED.

Dated: December 4, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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