Brown v. Bel Aire, Kansas, City of et al
Filing
64
MEMORANDUM AND ORDER granting 39 Motion to Enforce; finding as moot 44 Motion for Leave to Amend Complaint; finding as moot 50 Motion to Strike. Signed by District Judge Monti L. Belot on 01/31/2013. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JERRY D. BROWN,
Plaintiff,
v.
CITY OF BEL AIRE, KANSAS, et al.,
Defendants.
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CIVIL ACTION
No.
11-1307-MLB
MEMORANDUM AND ORDER
This case comes before the court on defendants’ motion to
enforce settlement. (Doc. 39). The motion has been fully briefed and
is ripe for decision.
hearing on January 28.
(Docs. 40, 45).
The court held an evidentiary
Defendants’ motion is granted for the reasons
herein.
I.
Facts
Plaintiff filed a complaint against defendants on October 10,
2011, alleging civil rights violations of excessive force and unlawful
arrest.
Plaintiff alleged that he was injured in October 2010 after
being placed under arrest by defendant Matthew McGuire, an officer for
the Bel Aire police department.
After his injury, plaintiff was
prescribed Loratab, a pain medication, to take on an as needed basis.
Plaintiff did not take the medication frequently because he did not
like the effects.
Plaintiff testified that on August 16 he had taken
two Loratabs.
At the time the original complaint was filed, plaintiff was
represented by Sara Loquist.
as counsel.
On June 14, Loquist moved to withdraw
Loquist’s motion was granted on July 18.
On July 20,
plaintiff
participated
in
a
telephone
status
conference
with
Magistrate Judge Waxse and defense counsel Jaime Blackwell.
The
magistrate informed plaintiff that he had two options in this case:
plaintiff could proceed pro se or obtain new counsel prior to the next
status conference to be held on August 17.
In addition, the parties
had to submit a revised planning report to the court by August 15.
Blackwell called plaintiff on August 14 and introduced herself
as counsel for defendant.
Blackwell asked plaintiff if he had
retained counsel and plaintiff responded that he had not.
Blackwell
and plaintiff then had an extended discussion regarding plaintiff’s
attempts to retain counsel.
Blackwell asked plaintiff how much money
he would need to settle the case.
he would need $100,000.
Plaintiff informed Blackwell that
Blackwell stated that she was not authorized
to agree to that offer and that she would call him back the next day.
Plaintiff sounded frustrated during the call but Blackwell did not
believe
that
plaintiff
was
under
the
influence
of
medication.
Plaintiff testified that he had recently been in contact with an
attorney from Missouri and believed that he would be represented. The
attorney declined to represent plaintiff and plaintiff had to travel
to
Springfield,
Missouri
the
next
day
to
retrieve
his
files.
Plaintiff had contacted approximately thirty different attorneys
seeking representation and was unsuccessful.
On August 15, Blackwell called plaintiff and again asked him if
he had retained counsel.
Plaintiff stated that he was in Missouri
picking up his case files and was going to take them to another
attorney.
Blackwell again discussed plaintiff’s options as stated by
the magistrate judge during the status conference.
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Blackwell also
told plaintiff that he could dismiss without prejudice and refile
within six months when he obtained counsel.
Blackwell if she could make him an offer.
Plaintiff then asked
Blackwell informed
plaintiff that she would call him back after speaking to her client.
At the time of the call, Blackwell did not believe plaintiff to be
under the influence of medicine.
Blackwell spoke with the insurance
adjuster and received authorization to offer $5,000. Blackwell called
plaintiff and left him a voice mail message.
Plaintiff did not return Blackwell’s call on August 15.
On
August 16 at approximately 12:30 in the afternoon, Blackwell called
plaintiff and again asked him if he had retained counsel.
Plaintiff
informed Blackwell that he had an appointment scheduled for later that
day.
Plaintiff stated that he would rather settle the case before an
attorney was involved.
offer was.
Plaintiff asked Blackwell what the settlement
Blackwell informed plaintiff that she was authorized to
offer him $5,000 to settle the case.
Plaintiff responded that his
upcoming surgery was going to cost him $15,000 and that he would need
at least $20,000 to settle.
Blackwell said that she would call her
client.
Blackwell spoke with the insurance adjuster and was authorized
to
offer
plaintiff
$10,000.
Blackwell
called
approximately 1:00 p.m. to inform him of the offer.
plaintiff
at
After a short
moment of silence, plaintiff said, “I can do that, we can settle the
case for $10,000.”
check.
Plaintiff asked Blackwell when he could get the
Blackwell told him that she would call the insurance company
and get back to him.
Plaintiff also asked Blackwell if he would owe
anyone out of the settlement proceeds.
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Blackwell told plaintiff that
she did not know the answer to that question and could not advise him
on
that
matter.
At
approximately
2:00
p.m.,
Blackwell
called
plaintiff and told him that she would have the check by the next day
at the latest.
Blackwell stated that she would draft the settlement
paperwork for him to sign and he could pick up the check on August 17.
Plaintiff agreed. After the conversation concluded, Blackwell emailed
the magistrate judge’s chambers to inform the court of the settlement.
Blackwell included plaintiff’s email address in the email.
Blackwell received the check at 4:00 p.m. on August 16.
At
approximately 4:30 p.m., Blackwell received an email stating that
plaintiff was represented by Cheryl Pilate who asked Blackwell to
cease contact with plaintiff.
Blackwell received a second email from
Kurt Kerns later that evening which stated that he also represented
plaintiff. Blackwell did not prepare the settlement agreement and did
not contact plaintiff.
September.
Pilate entered her appearance in this case in
Plaintiff did not contact Blackwell after the 16th.
Plaintiff determined that the $10,000 was not enough money to pay for
his needed surgery.
After plaintiff’s counsel entered their appearance in this case,
defendants
filed
a
motion
to
enforce
the
settlement
agreement.
Plaintiff objects and contends that the parties did not enter into a
binding agreement.
II.
Analysis
The district court may “summarily enforce a settlement agreement”
which was reached by the parties.
1491, 1496 (10th Cir. 1993).
contract,
“[i]ssues
involving
United States v. Hardage, 982 F.2d
Because a settlement agreement is a
the
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formation,
construction
and
enforceability of a settlement agreement are resolved by applying
state contract law.” United States v. McCall, 235 F.3d 1211, 1215
(10th Cir. 2000).
fact.
The existence of an agreement is a question of
Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891,
901, 220 P.3d 333 (2009); Reznik v. McKee, 216 Kan. 659, 671-72
(1975).
The Kansas Supreme Court has held that the law favors settlement
agreements:
It is an elemental rule that the law favors compromise
and settlement of disputes, and generally, 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. However, as an exception to the
rule, it is well settled that a compromise settlement may
be set aside on the ground of mutual mistake of the
parties.
Krantz v. Univ. of Kansas, 271 Kan. 234, 241-242 (2001).
An oral settlement agreement is enforceable as long as there has
been a meeting of the minds on all essential terms and the parties
intend to be bound by it.
Dougan v. Rossville Drainage Dist., 270
Kan. 468, 487-88 (2000).
“[T]here must be a fair understanding
between the parties which normally accompanies mutual consent and the
evidence must show with reasonable definiteness that the minds of the
parties met upon the same matter and agreed upon the terms of the
contract.”
Steele v. Harrison, 220 Kan. 422, 428 (1976).
“The 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.” Phillips & Easton Supply Co., Inc. v. Eleanor Int’l, Inc.,
212 Kan. 730, 735 (1973).
Moreover, “the fact that the parties left
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some details for counsel to work out during later negotiations cannot
be used to abrogate an otherwise valid agreement.”
Sump v. Pamida,
Inc., No. 97-4085, 1998 WL 1054949, 2 (D. Kan. Nov. 25, 1998)(quoting
Sheng v. Starkey Laboratories, Inc., 117 F.3d 1081, 1083 (8th Cir.
1997)).
Based
on
the
evidence
presented
to
the
court
during
the
evidentiary hearing, the court finds that the parties entered into an
agreement to settle this case for $10,000.
While the settlement
agreement had not yet been drafted and signed, plaintiff did agree
that he would settle his case for a set amount of money.
Plaintiff’s
argument that the exact terms of the agreement had not yet been
defined is not persuasive.
Plaintiff was informed that he would have
to execute the agreement in order to get the check and he agreed.
Plaintiff did not make his agreement contingent upon reading and
agreeing to the terms in the yet to be drafted settlement agreement.
In this case, as in any personal injury claim, the settlement
agreement would contain a general release of all claims against
defendants.
There is no evidence to support a finding that plaintiff
did not understand that he must release all claims against defendants
in order to receive the money.
was
obligated
to
give
Plaintiff’s argument that Blackwell
plaintiff
legal
advice
on
matters
which
ordinarily might be given by counsel representing plaintiff (Doc. 45
at
9-10)
is
unsupported.
Blackwell
Magistrate Waxse’s instructions.
essentially
was
following
She was not obligated to become
plaintiff’s lawyer.
In this case, there was a clear meeting of the minds on the
essential terms.
Plaintiff’s change of heart a few hours later can’t
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undo the agreement between the parties.
Alternatively, plaintiff contends that he did not have the mental
capacity to contract because of the pain medication he was taking.
Under Kansas law, the test of mental capacity to contract is whether
the person “possesses sufficient mind to understand in a reasonable
manner the nature and effect of the act in which he is engaged.”
DeBauge Bros., Inc. v. Whitsitt, 212 Kan. 758, 762 (1973).
Plaintiff
testified that the pain medication effects his thinking and when the
medication wore off he realized that the money was not sufficient.
Plaintiff’s testimony, however, supports a conclusion that plaintiff
simply changed his mind.
Plaintiff provided no support for the
conclusion that he did not know what he was doing at the time the
contract was entered into.
In DeClue v. General Motors Corp., No. 99-2229, 2000 WL 1472856
(D. Kan. Aug. 22, 2000), the plaintiff asserted that she was under the
influence of medication at the time of the oral settlement agreement.
The only evidence supporting plaintiff’s position that she did not
have the mental capacity to contract was her statement that her
medication made her confused and she was under stress.
The court
found the evidence insufficient to establish that plaintiff did not
have the mental capacity to enter into an agreement.
In this case, the court has no independent evidence of the effect
of Loratab on an individual’s mental capacity.
Moreover, Blackwell
had several conversations with plaintiff over the course of three days
and testified that at no time did plaintiff sound like he was under
the influence of medication.
Additionally, plaintiff makes the unsupported argument that
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defense counsel had some sort of duty to determine that plaintiff was
in the right state of mind to enter in to a settlement agreement.
When plaintiff was asked if he told Blackwell that he was taking pain
medications, his response was “She didn’t ask me.”
Plaintiff has no
authority to support his apparent argument that Blackwell had an
obligation, ethical or otherwise, to initiate questions regarding
plaintiff’s mental or physical condition.
Blackwell had a duty to
represent her client and abide by the rules of ethics.
done so.
any
Blackwell has
There is no evidence that Blackwell acted in violation of
rules
in
conducting
settlement
negotiations
with
a
pro
se
plaintiff.
Therefore, the court finds that plaintiff had the mental capacity
to contract on August 16.
Accordingly, the settlement agreement must
be enforced.
III. Conclusion
Defendants’ motion to enforce the settlement agreement (Doc. 39)
is granted.
Plaintiff shall execute the settlement agreement and
related dismissal papers within ten days of this order.
Plaintiff’s
motion to amend (Doc. 44) and defendants’ motion to strike (Doc. 50)
are denied as moot.
IT IS SO ORDERED.
Dated this
31st
day of January 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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