HomeMy Public PortalAboutSettlement AgreementSETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made as of April 21, 2011 ("Effective
Date") by the following parties: (i) the City of McCall ("City"), an Idaho municipal
corporation; (ii) Susan E. Buxton, an individual licensed to practice law in the State of Idaho,
and Moore Smith Buxton & Turcke, Chartered, an Idaho professional corporation (collectively,
"Moore Firm"); and (iii) William A. McCurdy, an individual licensed to practice law in the
State of Idaho, and Brassey Wetherell & Crawford, LLP f/k/a Brassey, Wetherell, Crawford &
Garrett, LLP, an Idaho limited liability partnership (collectively, "Brassey Firm").
RECITALS
A. On May 3, 2006, the City filed an action against the Moore Firm and the Brassey
Firm in the Fourth Judicial District of the State of Idaho, in and for the County of Ada, Case No.
CV OC 0608079 ("Action").
B. The parties have reached a full and final settlement of all claims (i) that were
made, or could have been made, in the Action, and (ii) that arise from the attorney -client
relationship that existed before the Effective Date between the City, on one hand, and the Moore
Firm or the Brassey Firm, on the other hand.
Now, therefore, for good and valuable consideration, including the covenants and
conditions set forth in this Agreement, the parties agree as follows:
AGREEMENT
1. The Recitals set forth above are incorporated into and made a valid and binding
part of this Agreement.
2. On or before June 20, 2011, the Moore Firm and the Brassey Firm together shall
pay the City the total amount of $500,000.00. Payment shall be made by check(s) payable to the
City of McCall.
3. Once the payment required in paragraph 2 of this Agreement has been made, the
parties shall cause their respective counsel to take the following actions: (i) file a stipulation to
dismiss the Action with prejudice, with each party to bear its own costs and attorney fees; and
(ii) seek a court order dismissing the Action in accordance with that stipulation.
4. The City (for itself and its elected or appointed officials, employees, agents,
representatives, successors, assigns, attorneys, and insurers) releases and forever discharges the
Moore Firm and the Brassey Firm and their respective current and former officers, directors,
partners, associates, employees, agents, representatives, successors, assigns, attorneys, and
insurers, and any person or entity acting for, by, or through any of them (collectively, "Released
Parties") from any and all past, present or future claims (including claims for costs and attorney
fees), actions, causes of action, demands, rights, damages, costs, losses, expenses, penalties,
liabilities, judgments, liens, indebtedness and compensation whatsoever, whether in law or in
equity, known or unknown, foreseen or unforeseen, or suspected or unsuspected, that the City
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ever had, may now have, or hereafter may have, against the Released Parties that were made, or
could have been made, in the Action, or that arise from the attorney -client relationship that
existed before the Effective Date between the City, on one hand, any of the Released Parties, on
the other hand.
5. The City acknowledges and agrees that this Agreement is a general release. The
City expressly waives and assumes the risk of any and all claims for damages which exist as of
the Effective Date, but of which the City does not know or suspect to exist, whether through
ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially
affect the City's decision to enter into this Agreement. The City further agrees that it has
accepted payment of the settlement amount as a complete compromise of all matters involving
disputed issues of law and fact. The City assumes the risk that the facts or law may be other than
what the City believes.
6. No party admits liability or fault with respect to the claims asserted in the Action.
7. Upon the suggestion of the Released Parties, the parties agree that, to the extent
permitted by law, the parties shall maintain the confidentiality of this Agreement, subject to the
terms and conditions of this paragraph:
a. Upon the execution of this Agreement, the City shall issue the following
statement to The Star News:
All parties to the lawsuit brought by the City of McCall
against its prior attorneys are pleased to announce that the
lawsuit has been resolved on terms satisfactory to all
concerned. No party has admitted liability, fault,
malpractice, or wrongdoing. All parties wish to put the
lawsuit behind them and, to that end, have agreed that no
further comment concerning the settlement or the lawsuit
shall be made by any party to any person or entity.
b. Should any party to this Agreement be contacted regarding this Agreement
or the settlement of the Action, except by means of a request for public
records, that party shall provide no response aside from directing the
inquiry to its designated representative, who shall repeat the public
statement set forth in subparagraph (a) or confirm that the substance of
that statement is the only information that can be provided in response to
the inquiry. The designated representatives of the parties are: (i) the City
Attorney for the City; (ii) Paul A. Turcke for the Moore Firm; (iii) John
Howell for Brassey Wetherell & Crawford, LLP; and (iv) William A.
McCurdy on his own behalf.
c. In the event of a request for public records that encompasses this
Agreement, the City shall inform the requesting party within the statutory
period of three working days that it will require ten working days to
determine whether this Agreement may be disclosed. Further, the City
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shall, also within three working days of the request, tender the request to
the Released Parties. The Released Parties shall then have five working
days within which to inform the City whether they (1) consent to the
disclosure of this Agreement or (2) do not so consent and wish the City to
assert whatever protection is afforded by this confidentiality clause and
applicable law. If a Released Party fails to communicate a response to the
City within the time allowed by this subparagraph, then that Released
Party is deemed to have consented to the disclosure of this Agreement. If
all the Released Parties fail to communicate a response to the City within
the time allowed by this subparagraph, then the City shall be entitled to
respond to the request in accordance with the advice of the City Attorney.
If the City Attorney's advice is to disclose this Agreement, the City may
do so without breaching this Agreement. If one or more of the Released
Parties' response to the City is not to consent to the disclosure of this
Agreement, that response shall be controlling on the City, which shall
decline to disclose this Agreement in response to the request for public
records. In the event that a lawsuit is filed against the City by the
requesting party to compel disclosure of this Agreement, the City shall
tender, within one week of service of process, all documents served upon
it to those Released Parties who informed the City that they did not
consent to the disclosure of this Agreement pursuant to the request for
public records. The Released Parties who informed the City that they did
not consent to the disclosure of this Agreement to whom the papers are
tendered shall retain and pay counsel to defend the City in that lawsuit, at
the trial and any appellate levels, and shall indemnify the City against any
damages, penalties, costs and attorney fees that may be awarded against it
in that lawsuit. In the event that the Released Parties to whom the papers
are tendered fail to retain counsel or to make an appearance in the lawsuit,
they shall be deemed to have waived their objections to disclosure of this
Agreement, and the City shall have no responsibility to defend the lawsuit
at its own expense. Despite their failure to retain counsel or to make an
appearance, the Released Parties who informed the City that they did not
consent to the disclosure of this Agreement pursuant to the request for
public records shall remain liable for any and all sums awarded against the
City in the lawsuit that are covered by the indemnity clause set forth in
this paragraph. Whether the lawsuit is contested or goes by default, all
parties shall abide by the final order entered in that proceeding, subject to
the right of appeal.
d. All tenders and responses described in subparagraph (c) above shall be to
and from the parties' designated representatives and shall be by facsimile
or email transmission or by hand delivery.
e. Notwithstanding the foregoing, this Agreement may be disclosed as
follows: (i) by any party to its attorneys, accountants, and auditors; (ii) by
any party to those persons whose knowledge of this Agreement is
necessary to secure the execution or implementation of this Agreement;
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(iii) by any party to any person entitled, as a matter of law, to know of its
terms and whose entitlement is not by virtue of a request for public
records like that contemplated in subparagraph (c); (iv) by any party
pursuant to a court order, or as necessary to enforce the terms of this
Agreement, or as may otherwise be required by law; (v) by the Moore
Firm or the Brassey Firm to the Idaho Judicial Council, Idaho State Bar
counsel, and current or prospective legal -malpractice insurers; and (vi) by
the Moore Firm or the Brassey Firm in connection with employment
applications or requests for proposal from prospective clients.
8. The parties agree to refrain from making any disparaging comments (written, oral,
or otherwise) about each other.
9. Both the City and the person who signs this Agreement on its behalf represent and
warrant to the Moore Firm and the Brassey Firm that the city council of the City has voted, in a
public meeting conducted in compliance with Idaho's "open meetings" laws, to approve this
Agreement and that person's execution of this Agreement on the City's behalf.
10. In negotiating and executing this Agreement, the parties have been represented by
counsel of their choice, and no party has relied on any promise or representation of any other
party beyond those expressly set forth in this Agreement.
11. This Agreement contains the parties' entire agreement. It may not be altered,
amended, or modified, except in a writing executed by the parties.
12. The terms of this Agreement have been negotiated by all parties, and any statute
or rule of construction which provides that ambiguities are to be resolved against the drafting
party shall not be employed in interpreting this Agreement.
13. This Agreement shall be governed by the laws of the State of Idaho, without
reference to conflict -of -laws principles.
14. If any party pursues legal action to enforce this Agreement, the prevailing party in
that legal action shall recover its reasonable court costs, attorney fees, and related expenses.
15. This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument. A
party may transmit its signature to the other parties by facsimile or e-mail.
16. This Agreement is binding upon and shall inure to the benefit of the parties and
their respective successors, officers, elected and appointed officials, predecessors, assigns,
directors, agents, employees, insurers, and transferees.
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IN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date.
CITY OF McCALL
Donald C. Bailey
Its Mayor
Approved as to form by its attorneys:
Allen B. Ellis
Ellis, Brown & Sheils, Chartered
Jeffrey A. Strother
Strother Law Office
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MOORE SMITH BUXTON & TURCKE, CHARTERED
By
Susan E. Buxton, President
Susan E. Buxton, individually
Approved as to form by their attorneys:
Craig L. Meadows
Hawley Troxell Ennis & Hawley LLP
BRASSEY, WETHERELL & CRAWFORD, LLP
By
Its
William A. McCurdy, individually
Approved as to form by their attorneys:
James D. LaRue
Elam & Burke, P.A.
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