Brief in Support of Motion To Enforce Settlement
Brief in Support of Motion To Enforce Settlement
Brief in Support of Motion To Enforce Settlement
ADELINE HAMBLEY,
Case No: 23-7180-CZ
OTTAWA COUNTY,
a Michigan County;
OTTAWA COUNTY BOARD OF COMMISSIONERS; and
JOE MOSS, SYLVIA RHODEA,
LUCY EBEL, GRETCHEN COSBY,
REBEKAH CURRAN, ROGER BELKNAP,
and ALLISON MIEDEMA,
Ottawa County Commissioners in their
individual and official capacities,
Defendants.
______________________________________________________________________________
Defendants have remorse and want out of the deal. Plaintiff Adeline Hambley seeks
writing, whereby Plaintiff Hambley would leave her position as Health Officer in
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voted for the agreement in an open session of the meeting, just prior to recessing
the meeting for that day. After entering into the agreement, however, Defendants
contracted a case of buyer’s remorse. Defendants now argue that there was never a
binding agreement in the first place. That is legally incorrect, however. The
thus meets the standards set forth for enforceable settlement agreements under
Michigan Court Rule 2.507(G). Accordingly, Hambley requests that the Court enter
BACKGROUND1
As this Court is aware, this matter has already been up to the Court of
Appeals, where the appeals court affirmed this Court’s holding that Plaintiff is
Ottawa County’s duly-appointed Health Officer. This case began after Defendants
voted in their first meeting in office to demote Plaintiff to interim Health Officer in
and Defendant Joe Moss unilaterally filed charges for termination of Plaintiff, in a
second attempt to oust her. The Court of Appeals held that Defendants could run a
hearing for termination and attempt to fire Plaintiff if their efforts complied with
1Hambley incorporates the statements of facts and background from her previous
briefs.
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technically still ongoing in front of the Ottawa County Board of Commissioners (the
Board).
On October 24, 2023, the Board began its two-day hearing under MCL
subpoenas that Hambley requested. Defendants did not offer any evidence beyond
what was included with the charges and did not call any witnesses. Hambley
maintained several objections to the lawfulness of the hearing and the manner in
which it was conducted. At the conclusion of the hearing’s second day, Defendants
chose not to hold a vote on the charges, but instead voted to adjourn until October
30, 2023, asserting that they needed to consider the matter further. When they
resumed the termination hearing on October 30, the Board voted to adjourn again
until November 6, 2023, without further public explanation except that they needed
more time.
discussions. As part of those discussions, Plaintiff’s counsel wrote a letter and asked
defense counsel to share it with the full Board, explaining her position that the full
Board should first consider whether it would agree to Plaintiff staying in her role as
Health Officer with certain other terms – before Plaintiff would even agree to
extend any settlement offer to resign in exchange for a payment to resolve her
2The Board later voted to amend the charges to comply with MCL 46.10, after
making the decision to do so in a “recess” behind closed doors that Plaintiff has
asserted, and continues to assert, violated the Open Meetings Act.
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damages claims. Plaintiff’s counsel also explained and previewed in the letter that
because of Plaintiff’s large economic damages if she resigned – stemming from the
Plaintiff’s first monetary offer to settle and resign would be in the millions of
dollars.3
session to confer with counsel about this litigation. While the Board was in closed
session, Plaintiff’s counsel and Defendants’ counsel exchanged settlement offers and
counteroffer from Hambley, pending Board approval in a public vote. At 5:15 p.m.,
additional terms and changes are correct.” (Id.) The emails from Defendants’
counsel contained his signature block at the bottom. (Id.) Defense counsel advised
that once the Board formally voted to accept the agreement, defense counsel would
consideration. There was no discussion between counsel that the agreement would
Board Chair would sign the written agreement in open session at its next meeting.
Plaintiff’s counsel suggested to defense counsel that the Board should announce the
terms of the agreement when they voted, instead of waiting until the written
At around 5:30 p.m., the Board returned to open session. Defendant Moss
session.” Defendant Moss said nothing more about it, and he asked that a roll call
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vote be taken. The individual defendants all voted in favor of the motion, and the
other Board members all voted against the motion, except for Commissioner
Terpstra, who was absent. The motion passed. The Board then voted to recess until
On November 8, 2023, The Holland Sentinel broke the story about the terms
of the agreement. (S. Leach, “Instead of firing her, Ottawa Impact plans to give
https://www.hollandsentinel.com/story/news/politics/county/2023/11/08/instead-of-
that attached a draft formal settlement document that included the terms of the
November 6 Agreement. The text of the email provided the first indication that
Defendants might attempt to back out of the agreement, stating that “until the
(Ex. 2.) Plaintiff’s counsel made several small changes to the writing which did not
alter the substance of the agreement – as is typical when counsel are finalizing the
counsel. (Ex. 3.) Plaintiff’s counsel also disagreed with Defendants’ attempt to back
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That is a binding agreement between our clients. The writing is a mere
memorialization of the agreement.
(Id.) Defense counsel also sent an email to Plaintiff’s counsel on November 10, 2023,
saying that Defendants have “run in to problems on how to fund the proposed
settlement.”
into closed session. During discussions with Plaintiff’s counsel, defense counsel
notified Plaintiff’s counsel that Defendants did not intend to honor the November 6
Agreement. Defendants’ counsel claimed that they did not notify the primary or
excess insurer before negotiating or agreeing to the deal, and they had since learned
again with negotiations for different terms to resolve the litigation and termination
hearing. Again, Plaintiff’s counsel asserted that the November 6 Agreement was
nor unforeseen potential negative financial consequences are enough to make the
ARGUMENT
binding if “the agreement is in writing, subscribed by the party against whom the
agreement is offered or by the party’s attorney.” The court rule is “in the nature of
a statute of frauds.” Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 456 (2006).
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459. An email is subscribed if it has the name of the writer at the bottom of the
document. Id.; accord Melton v Barnard, No 339521, 2018 Mich App LEXIS 3597, at
contracts.” Reagan v Ford Motor Co, 207 Mich App 566, 571 (1994). As such, there
must be offer and acceptance, as well as “mutual assent or meeting of the minds on
all the essential terms.” Kloian, 273 Mich App at 452-53. To determine whether
there is a meeting of the minds, courts use an objective standard, examining the
parties’ words and actions rather than their subjective states of mind. Id. at 454.
The parties in this case exchanged several offers throughout the day on
November 6, 2023. As the day was nearing its close, Defendants accepted Hambley’s
to Plaintiff’s counsel. (Ex. 1.) Plaintiff’s counsel responded with some changes, and
email exchange demonstrates a meeting of the minds on all the essential terms of a
settlement; the agreement created a binding contract between the parties as to the
terms listed. The agreement was in writing and subscribed by Defendants’ counsel,
Defendants’ counsel claims that the agreement was not intended to create a
binding contract because the subject line of the email says “Tentative Settlement
Agreement.” (See Ex. 1.) However, this is because the Board cannot formally agree
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until they take the vote in the open public meeting. The Board cannot act in closed
session with legal counsel to agree to a settlement under the Open Meetings Act.
But once the Board came back into the open, public meeting, and voted to accept
terms. No caveat was stated that they needed to approve the written
Michigan Court of Appeals decisions in Kloian, 273 Mich App 449, is instructive. In
that case, the plaintiff’s attorney sent an email to the defendant’s attorney offering
to settle the lawsuit for payment of $48,000 in exchange for a dismissal with
prejudice and a release. Id. at 453. The defendant’s attorney emailed back, stating
“[Defendant] accepts your settlement offer” and offered to draft the written
settlement as agreed. Id. The court held that the defendant expressed intent to be
bound by the plaintiff’s offer, and that there was a “meeting of the minds on the
parties created a contract and enforced the settlement agreement pursuant to MCR
2.507(G).
agreement as to all material terms of the settlement. The emails from Defendants’
counsel agreeing to the settlement terms were subscribed. The Board majority then
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Finally, Defendants’ counsel drafted a formal settlement agreement with the
same agreed-upon terms. The parties need not have completed a formal settlement
under MCR 2.507(G). Melton, No 339521, 2018 Mich App LEXIS 3597, at *8.
principle” in a series of email exchanges. Id. at *1. The parties told the trial court
that they had reached “an agreement in principle” and requested adjournments to
“complete the settlement.” Id. The plaintiff later tried to back out of the agreement,
arguing that the parties did not finalize a formal settlement agreement and that the
However, the court rejected that argument in Melton, finding that the parties
had agreed to settle, and were “actively working towards a comprehensive written
agreement.” 2018 Mich App LEXIS 3597, at *9. The court went on to explain that
“the list of agreements contained in the e-mail was specific enough to address the
left to be negotiated in the future. Id. at *10-11. Moreover, the court explained,
where parties agreed to all material terms of a contract, “the law may supply
the court concluded that the settlement agreement was enforceable under MCR
Here, too, the small edits that Plaintiff’s counsel requested in the written
document memorializing the agreement did not alter the major terms to which the
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parties all assented. Calling it an agreement “in principle” also did not support a
claim that a settlement was not binding where the circumstances demonstrated
that everyone knew there was a settlement agreement on the major terms. This is
the exact situation presented in this case, where the Board voted minutes after
Thus, like the settlement agreement in Kloian and in Melton, the November
6 Agreement is enforceable under MCR 2.507(G). All essential terms were agreed
and documented, in a writing which was subscribed with the name of defense
during closed session.” If the Board asserts that they were not voting to accept the
settlement terms, which seems impossible given the timing of the vote after the
confirming email, the Board cannot plausibly even make such an argument unless
they submit the original closed session meeting meetings in camera for the Court’s
including only the discussion regarding acceptance of the settlement terms and an
intent to vote on them once the Board returned to the open meeting. Given all of the
circumstances, though, it is already settled under Michigan law that the November
CONCLUSION
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PINSKY SMITH, PC
Attorneys for Plaintiff Adeline Hambley
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