J.H. v. Brown

• Court: Missouri Court of Appeals
• Writing for the Court: Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, GARY D. WITT, Judge and ZEL M. FISCHER, Special Judge.
• Citation: J.H. v. Brown, 331 S.W.3d 692 (Mo. App. 2011)
• Decision Date: 08 February 2011
• Docket Number: No. WD 72335.,WD 72335.
• Parties: J.H., Appellant,v.Emil BROWN, Respondent.

331 S.W.3d 692

J.H., Appellant,

v.Emil BROWN, Respondent.

No. WD 72335.

Missouri Court of Appeals, Western District.

Feb. 8, 2011.

Scott A. McCreight, Michael S. Ketchmark, and Brett A. Davis, Kansas City, MO, for appellant.Gregory A. Leyh, Gladstone, MO, for respondent.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, GARY D. WITT, Judge and ZEL M. FISCHER, Special Judge.CYNTHIA L. MARTIN, Judge.

This appeal arises out of a breach of contract action filed by J.H. to enforce a settlement agreement between J.H. and Emil Brown (“Brown”). Following a bench trial, the circuit court entered a judgment in favor of Brown, finding that an enforceable settlement agreement had not been reached. On appeal, J.H. contends that the trial court erred because she established by clear and convincing evidence that the parties had agreed to all of the essential terms of settlement. We affirm.

Statement of Facts and Procedural History

J.H. alleged that Brown sexually assaulted her in January of 2007.¹ At the time of the alleged assault, Brown was under a one-year, non-guaranteed, contract with the Kansas City Royals (“Royals”).

On January 23, 2007, J.H.'s counsel, Michael Ketchmark (“Ketchmark”), sent Brown a demand letter, which provided that J.H. would “accept $575,000.00 in exchange for a full settlement and release of her claims.” The letter advised that if a settlement agreement could not be reached, J.H. would file suit, thus publicizing her allegations. Brown, fearful that any negative press before the April 2, 2007 home opener would jeopardize his compensation,² hired Gregory Leyh (“Leyh”). Leyh contacted Ketchmark, and the parties agreed to mediate the dispute. Richard Ralston (“Ralston”) was selected as the mediator.

On March 6, 2007, the parties participated in mediation. The dispute was not resolved at that time. The parties continued to negotiate.

On March 23, 2007, Ralston advised Leyh that if J.H. did not have a signed settlement agreement by the end of next week, she intended “to go public. Apparently, [Ketchmark] is getting pressure from [J.H.]. Let me know what is going on. Opening Day is not far off.” Leyh responded that day in an email to Ralston stating, in pertinent part:

[T]he sticking point as I remember it is the form of [J.H.'s] letter. The letter needs to say: At no time did Emil Brown ever harm or threaten to harm me, and I am sorry that I ever made it sound as if I was harmed [this is almost word for word what she told Detective Miller]. On each occasion that I had sex with Emil Brown, I consented to the sex with him. Any statements suggesting that Emil Brown coerced me to have sex or raped me are false.

As you know, the language in her letter is critical. If [J.H.] is going to get the money she demands, she needs to provide fair protection to Brown so he doesn't have another extortionate hand in his pocket soon. We see this deal as a pay off [sic] to two extortionists. We only want to make one payment, not two or three. The letter is necessary to accomplish that.

Plus confidentiality agreement. It is my understanding that [J.H.] refused to include a liquidated damages/penalty provision. Payments are to be staggered so that the final payment (15k) comes after Brown's next contract is negotiated.... The rest of the money should be paid in modest increments (10–20k) between date of settlement and March 1, 2008.

I ... think this is where we were before I left. Let me know if we have a deal. We appreciate your continued help.

On March 26, 2007, Ketchmark emailed a settlement offer to Leyh. The terms of the offer were as follows:

1. Complete mutual release of all parties and attorneys with confidentiality provisions.

2. Emil Brown makes a $100,000 settlement payment. $70,000 delivered to Davis, Ketchmark & McCreight law firm (two checks as designated by plaintiff's counsel) by April 9, 2007 and $30,000 delivered to Davis, Ketchmark & McCreight law firm on the earlier of two dates March 1, 2008 or 10 calendar days after Emil Brown Signs a baseball contract (if any) for next year.

3. [J.H.] will sign a letter stating:

‘I voluntarily dropped the charges of assault and rape against Emil Brown and I told the police department that Emil Brown did not harm me in anyway and that I did not want to pursue criminal charges. I also told the police department that all interaction between Emil Brown and I were consensual.’

4. [J.H.] will not make any statement about this dispute other than the statement contained in paragraph 3 above.

5. Emil Brown pays for the cost of mediation.

6. The parties agree to sign and exchange the necessary paperwork, and Emil Brown will provide the first settlement checks no later than April 9, 2007. Emil Brown will pay an extra $100 a day for every day that the settlement checks are delayed after April 9, 2007. The same $100 a day will apply for each day the second settlement check is delayed as well.

7. We need the consent from Emil Brown, via his counsel, that the above settlement terms are acceptable by no later than the close of business on March 28, 2007.

If the above conditions are unacceptable we are still prepared to file suit on March 29, 2007.

(Emphasis added.)

Leyh requested that he be given until March 30, 2007, to respond to J.H.'s offer, as Brown was in spring training. Ketchmark agreed. On March 30, 2007, Leyh responded to J.H.'s settlement offer providing, in pertinent part, as follows:

• ¶ 1 of the email demand is acceptable, assuming that the parties and their lawyers can agree on the language of the releases and confidentiality provisions, and assuming no unreasonable delays by Ketchmark or [J.H.]. [Emphasis added.]

• ¶ 2 of the email demand is acceptable, assuming that the designation of payees is made no later than April 2, 2007.

• ¶ 3 of the email demand is acceptable. Although it is a close call, it is probably better for [J.H.'s] statement to be grammatically correct. To that end, she should say ‘I also told the police department that all interactions between Emil Brown and me were consensual.’

• ¶ 4 of the email demand is acceptable.

• ¶ 5 of the email demand is acceptable.

•9 The first sentence of ¶ 6 is duplicative of ¶¶ 1 and 2 and is therefore ignored. Mr. Brown does not agree to the punitive provision relating to a payment of $100 per day in the event settlement checks are delayed.

If Mr. Brown's generous offer of settlement is not accepted his accuser will face serious jeopardy.

On April 2, 2007, Ketchmark responded to Leyh's March 30, 2007 letter as follows:

The parties have reached a settlement based upon the terms of the attached email and your acceptance letter. It is important, however, that your client understands that in the event he breaches the timely payment provisions of the agreement, we will file suit for breach of contract and the confidentiality provisions of the agreement will not apply. ... Please e-mail me an electronic draft of the release as soon as possible. We will make any suggested changes electronically and email the release back to you for review.

Leyh responded by facsimile on the same day, and stated:

I received your letter this morning. Your threat of a breach of contract suit is, to paraphrase Bob Uecker, “just a bit premature.”

Your client's ability to sue for breach of contract—and the related issue of the applicability of the confidentiality provisions—will turn significantly on the language of the release and settlement contract, don't you think? Since I haven't drafted them yet, I shall disregard your empty threat as more smoke.

Ketchmark responded to Leyh's facsimile with a letter dated April 2, 2007, which provided:

You are missing the point. We are concerned about your client's ability to make the scheduled payments. We attempted to address this issue by setting forth a liquidated damages provision of $100 a day. This is not a punitive provision. Rather, it was a liquidated damage clause designed to encourage Mr. Brown to abide by his contractual obligations. You rejected this provision.

As a result, the only way we have a deal is if the confidentiality provisions of the agreement you are drafting make it clear that if [J.H.] is required to file any legal action to enforce the payment provisions of the settlement (i.e. the payments are not made as scheduled), then the confidentiality provision of the agreement does not apply to such a Court action.

(Emphasis added.)

On April 4, 2007, Leyh emailed Ketchmark a draft of a proposed settlement agreement. The draft provided that: “The parties acknowledge that a delay in receipt of payments of ten days or less is not considered unreasonable, and shall not be the basis for any action to enforce the terms of this Agreement.” The draft imposed an obligation to mediate in the event of a claimed payment default as a condition to J.H. filing a lawsuit to enforce the agreement. The draft also indicated that if any subsequent suit was filed by J.H. for breach of contract that she would agree to seal the proceedings “in order to protect Brown's good name, reputation and privacy.” The draft did not include a liquidated damages provision or the alternative provision required by Ketchmark negating the confidentiality clause should Brown fail to timely make a payment.

On April 5, 2007, Ketchmark's firm sent Leyh an email attaching a revised draft of the settlement agreement, asking that Leyh “review and forward any comments.” The revised draft deleted the language proposed by Leyh, which had stated that a delay in payment of ten days or less would not be the basis for an action to enforce the agreement. The revised draft modified the confidentiality provision, suggesting language that allowed J.H. to disclose any necessary information to her tax advisors without disclosing Brown's identity, and deleting reference to the fact that Brown was making settlement payments for the principal purpose of avoiding threatened “personal exposure.” The revised draft also...