saratoga springs lawsuit motion to enforce settlement

HEATHER S. WHITE (7674)

R. SCOTT YOUNG (10695)

SNOW, CHRISTENSEN & MARTINEAU

Attorneys for Defendants

10 Exchange Place, 11th

Floor

Post Office Box 45000

Salt Lake City, Utah 84145

Telephone: (801) 521-9000

Fax No.: (801) 363-0400

[email protected]

[email protected]

IN THE UNITED STATES DISTRICT COURT

STATE OF UTAH, CENTRAL DIVISION

SUSAN HUNT, mother and personal

representative of DARRIEN HUNT, deceased;

CURTIS HUNT; and ESTATE OF DARRIEN

HUNT, by its Personal Representative Susan

Hunt,

Plaintiffs,

vs.

MATTHEW L. SCHAUERHAMER;

NICHOLAS E. JUDSON; and the CITY OF

SARATOGA SPRINGS, UTAH,

Defendants.

DEFENDANTS' MOTION TO

ENFORCE SETTLEMENT and

SUPPORTING MEMORANDUM

Civil No. 2:15CV1 TC

Judge Tena Campbell

Magistrate Judge Paul M. Warner

INTRODUCTION

On September 10, 2013, Darrien Hunt swung a samurai sword at two police officers who

then shot and killed him. Mr. Hunt's mother, Susan (in her own capacity and as representative of

Darrien's estate), and father, Curtis, sued the officers and the City of Saratoga Springs. In July,

counsel for the Hunts emailed Defendants' counsel requesting that the parties attempt to settle the

Case 2:15-cv-00001-TC-PMW Document 17 Filed 09/30/15 of 10

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claim. The parties agreed on a settlement amount on August 7, 2015, and then, due to the

publicity the case has received, began working on press releases that were to be approved by all

parties. While they worked on the press releases, Plaintiffs' counsel emailed instructions

regarding payment of the settlement amount to Defendants' counsel. The parties agreed to the

language of the press releases on August 18, 2015. Saratoga Springs City Manager Mark

Christensen signed the Release the next day, and Defendants' counsel received the settlement

check on August 21, 2015.

Plaintiffs and their counsel then went silent until September 10, 2015, when Susan Hunt

told the press that she had rejected the settlement. She stated, "To me it was a gag order saying,

'Here's hush money, don't ever say Darrien's name again. I hope there will be a legacy instead of

a hush order.'" "Mom of Darrien Hunt says she rejected $900K settlement offer in son's death,"

KSL.com, 9.10.15, Exh. A. Defendants then learned that Ms. Hunt had fired her counsel, Robert

Sykes, and that she does not intend to honor the settlement agreement.

Despite Ms. Hunt's change of course, the Court should enforce the settlement agreement.

Ms. Hunt's own counsel has testified in a court pleading that she agreed to the settlement, stating:

Attorney Sykes received from Heather White, counsel for the defendants, a

$900,000 offer of settlement for the client. After consulting with Susan Hunt,

Attorney Robert Sykes contacted Defendants' attorney, Heather White, and

accepted this offer on behalf of Susan Hunt. Curtis Hunt also accepted the

settlement offer of $900,000.

Doc. #16, ¶5. Plaintiffs' agreement is also shown in the email correspondence between counsel.

Plaintiffs' counsel had authority to settle the case, as they were counsel of record throughout the

litigation and settlement negotiations.


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In addition to enforcing the settlement agreement, the Court should order Ms. Hunt to

reimburse Defendants attorneys' fees in relation to this motion. Ms. Hunt defied the

confidentiality provision of the settlement agreement by telling the press that she had not agreed

to the settlement and that Defendants were paying "hush money" and implementing a "gag

order." Not only has this smeared Defendants' in the media, it has needlessly prolonged this

litigation and caused Defendants to incur additional costs.

STATEMENT OF FACTS

1. On July 13, 2015, Plaintiffs' counsel emailed Defendants' counsel and stated they

"would like to take another run at getting this case resolved before we get heavily involved in

serious and lengthy litigation." 7.13.15 Email, 7:29 p.m., Exh. B.

2. After some negotiation, the parties agreed on a settlement amount and

Defendants' counsel drafted a Release of All Claims, which they emailed to Plaintiffs' counsel on

August 7, 2015. See 8.7.15 Email, 5:07 p.m., Exh. C.

3. Due to the publicity surrounding the lawsuit, the parties began working on

respective press releases (to be mutually agreed upon) to publicize the settlement upon entry of

an order of dismissal.

4. On August 17, 2015, Plaintiffs' counsel emailed, "Where are we on the final

settlement documents? I would like to review them, and get my client's signature on them,

shortly. Thanks." 8.17.15 Email, 5:12 p.m., Exh. D.

5. Defendants' counsel responded, "I am working through what will hopefully be the

last issues on the proposed press releases. I hope to get those to you today. In the mean time,


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can you and Karra please get me your firm tax I.D. numbers and let me know how to make the

settlement check payable? Thank you." 8.18.15 Email, 10:03 a.m., Exh. E.

6. Forty minutes later, Plaintiffs' counsel emailed Defendants' counsel with the tax

I.D. number and payment instructions. See 8.18.15 Email, 10:42 a.m., Exh. F.

7. The payment instructions were further clarified in two additional emails from

Plaintiffs' counsel. See 8.18.15 Email, 1:01 p.m., Exh. G, and 8.18.15 Email, 2:54 p.m., Exh. H.

8. That same afternoon, Plaintiffs' counsel emailed two additional edits to the press

releases. See 8.18.15 Email, 2:37 p.m., Exh. I.

9. Defendants' counsel responded with a red-line proposal for the edits. See 8.18.15

Email, 3:29 p.m., Exh. J.

10. Plaintiffs' counsel agreed to the edits, emailing back respectively, "We agree" and

"I would be ok with that." 8.18.15 Email, 3:47 p.m., Exh. K, and 8.18.15 Email, 4:13 p.m., Exh.

L.

11. An hour later, Defendant's counsel emailed, "I have sent the release to the City

Manager to sign for the City. I have also ordered the settlement check." 8.18.15 Email, 5:23

p.m., Exh. M.

12. Twenty minutes later, Defendants' counsel emailed again requesting one more

minor change to the release, stating, "I apologize. I just received one more request for the

release to "officials and officers of the City" to the definition of "Releasees" in the first

paragraph. Are you amenable to that?" 8.18.15 Email, 5:45 p.m., Exh. N.

13. Plaintiffs' counsel agreed within the hour, emailing respectively "Yes, this is OK."

and "Agreed." 8.18.15 Email, 5:57 p.m., Exh. O, and 8.18.15 Email, 6:46 p.m., Exh. P.


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14. On August 19, 2015, Saratoga Springs City Manager Mark Christensen signed the

Release. See Release, Exh. Q.

15. On August 21, 2015, Defendants' counsel emailed Plaintiffs' counsel, "I have the

settlement check." 8.21.15 Email, 12:14 p.m., Exh. R.

16. On September 15, 2015, Plaintiff Curtis Hunt signed the Release. See Exh. Q.

17. Receiving no response from Ms. Hunt's counsel, Robert Sykes, Defendants'

counsel emailed again on September 2, 2015, "I thought I would check with you on the status of

finalizing our settlement. Thanks." 9.2.15 Email, 4:57 p.m., Exh. S.

18. Defendants' counsel was unaware that Ms. Hunt had fired Mr. Sykes on August

28, 2015. See Doc. #15, ¶ 1.

19. Mr. Sykes did not respond, and on September 10, 2015, Ms. Hunt told the media

that she had turned down a $900,000 offer to settle the lawsuit." See "Darrien Hunt's mother

says she turned down a $900,000 settlement from Saratoga Springs," Salt Lake Tribune, 9.10.15,

Exh. T; see also "Mom of Darrien Hunt says she rejected $900K settlement offer in son's death,"

KSL.com, 9.10.15, Exh. A.

20. On September 18, 2015, Mr. Sykes filed a Motion for Withdrawal of Counsel.

See Doc. #15.

21. Mr. Sykes also filed a Notice of Attorney's Lien on the settlement amount on

September 18, 2015. See Doc. #16.


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ARGUMENT

“A trial court has the power to summarily enforce a settlement agreement entered into by

the litigants while litigation is pending before it.” United States v. Hardage, 982 F.2d 1491, 1496

(10th Cir.1993). “Issues involving the formation and construction of a purported settlement

agreement are resolved by applying state contract law.” Shoels v. Klebold, 375 F.3d 1054, 1060

(10th Cir.2004). Under Utah law, courts will enforce settlement agreements “if the record

establishes a binding agreement and the excuse for nonperformance is comparatively

unsubstantial.” Zions First Nat'l Bank v. Barbara Jensen Interiors, Inc., 781 P.2d 478, 479 (Utah

Ct.App.1989) (quotation omitted).

I. THE PARTIES AGREED TO A SETTLEMENT.

The parties, through their counsel, agreed to settle the case. This was confirmed when

Defendants' counsel emailed the negotiated Release to Plaintiffs' counsel on August 7, 2015, and

received no email objecting to the Release or clarifying that no agreement had been reached.

The parties' settlement was further confirmed on August 18, 2015, when Plaintiffs' counsel

agreed, via email, to the parties' respective press releases that were to accompany the Release.

Shortly afterward, both Curtis Hunt and the Saratoga Springs City Manager signed the Release.

In addition, Ms. Hunt's former counsel has also informed the Court that a settlement was

reached, stating:

Attorney Sykes received from Heather White, counsel for the defendants, a

$900,000 offer of settlement for the client. After consulting with Susan Hunt,

Attorney Robert Sykes contacted Defendants' attorney, Heather White, and

accepted this offer on behalf of Susan Hunt. Curtis Hunt also accepted the

settlement offer of $900,000.

Doc. #16, ¶5. Thus, the parties reached a settlement.


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II. PLAINTIFFS' COUNSEL - MR. SYKES AND MS. PORTER - HAD

AUTHORITY TO SETTLE THIS LAWSUIT.

Mr. Sykes and Ms. Porter, as counsel for Plaintiffs, had authority to settle on behalf of

their clients. In Utah, “the general principle of the law of agency is that principals are bound by

acts of their agents which are within the apparent scope of the authority of the agent and a

principal will not be permitted to deny such authority against innocent third parties who have

relied on that authority.” Forsyth v. Pendleton, 617 P.2d 358, 360 (Utah 1980). Defendants'

relied on the authority of Plaintiffs’ counsel in negotiating a resolution to this matter. This

reliance was justified because Mr. Sykes and Ms. Porter were counsel for Plaintiffs (Ms. Porter

still is counsel for Plaintiff Curtis Hunt) and the claim was settled at least 10 days before Susan

Hunt fired Mr. Sykes on August 28, 2015.

This Court enforced a settlement agreement on similar facts in Nature's Sunshine

Products, Inc. v. Sunrider Corp., 2011 WL 5881767 (D. Utah 2011) (unpublished). In that case,

as here, settlement was negotiated through counsel and memorialized in an email with a final

release attached. And in that case, as here, one party refused to sign the release and the other

moved to enforce the settlement agreement. This Court held that the lawyer had authority to

settle, and, therefore, the settlement was enforceable. Importantly, this Court held:

At no time during the mediation or the email discussions that took place after did

Mr. Smigelski inform Nature's Sunshine that he had limitations on his authority to

settle. Because these limitations were never communicated to Nature's Sunshine,

Sunrider is "bound to the same extent as though they were not given." 3 Am.Jur2d

Agency § 85.


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Id., at *5.1 Similarly, neither Mr. Sykes nor Ms. Porter informed Defendants' counsel that they

did not have authority to settle. This is because they did have authority to settle. Having settled

the claim, Plaintiffs cannot back out of it now.

III. THE EMAILS ARE SUFFICIENT TO FORM A BINDING SETTLEMENT.

Ms. Hunt may argue that her refusal to sign the Release means no settlement was

reached. This Court rejected the same argument in Nature's Sunshine and the Tenth Circuit

affirmed, holding, "[E]ven if the court were to assume that the agreement was reached through

mediation, the emails between outside counsel met the writing requirement." Nature's Sunshine

Products, Inc. v. Sunrider Corp., 511 Fed. Appx. 710, 716 (10th Cir. 2013) (unpublished)

(emphasis added). Similarly, the emails between counsel satisfied any writing requirement here.

IV. MS. HUNT SHOULD BE SANCTIONED FOR BREACHING THE

CONFIDENTIALITY OF THE SETTLEMENT AGREEMENT.

A district court has the "ability to fashion an appropriate sanction for conduct which

abuses the judicial process." Farmer v. Banco Popular of North America, 791 F.3d 1246, 1255

(10th Cir. 2015) (citations omitted). "[T]he authority of a court to impose attorney-fee sanctions

upon a party for bad-faith misconduct depends … 'on how the parties conduct themselves during

the litigation … [T]he party, by controlling his … conduct in litigation, has the power to

determine whether sanctions will be assessed.' " Id. (Citations omitted).

Ms. Hunt breached the confidentiality provision of the Release when she told the media

that she had rejected the settlement offer and slandering Defendants by telling the media she was

being paid "hush money." She has also prolonged this litigation by causing Defendants' to

1 The Tenth Circuit recently affirmed this decision in Nature's Sunshine Products, Inv. v. Sunrider Corp., 511 Fed.

Appx. 710 (10th Cir. 2013) (unpublished).


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expend additional attorneys' fees. Therefore, the Court should order her to reimburse Defendants

for their attorneys' fees associated with this motion.

CONCLUSION

For the reasons set forth above, the Court should grant Defendants' Motion to Enforce the

Settlement Agreement and order Plaintiff Susan Hunt to reimburse Defendants' attorneys' fees

associated with this motion.

SNOW, CHRISTENSEN & MARTINEAU

___________________________Date 9-30-2015

Heather S. White

R. Scott Young

Attorneys for Defendants


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CERTIFICATE OF SERVICE

I hereby certify that on the 30th

day of September, 2015, I electronically filed the

foregoing DEFENDANTS' MOTION TO ENFORCE SETTLEMENT AND

SUPPORTING MEMORANDUM with the Clerk of the Court using the CM/ECF System,

which will send notification of such filing to the following:

Robert B. Sykes

Rachel L. Sykes

SYKES McALLISTER LAW OFFICES

311 South State Street, Suite 240


Karra J. Porter

Scott T. Evans

CHRISTENSEN & JENSEN

257 East 200 South, Suite 1100


Attorneys for Plaintiff

/s/ Annette Gamero


saratoga springs lawsuit motion to enforce settlement

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