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HomeMy WebLinkAbout1996-012 - Joint Motion to Vacate Judgment in Wilken v. City of Riverside7II465; 01/31/96 BILL NO. ~~~ - /,~% AN ORDINANCE AUTHORIZING OF ALDERMEN TO EXECUTE A JOI CASE OF WILKEN V. CITY OF SETTLEMENT PURaUANT TO THE ATTACHED HERETO AND MADE A );'LILLY SE'T' OUT THEREIN. ORDINANCE NO. :'~ - /~- THE MAYOR OR CHAIRMAN OF THE BOARD NT MOTION TO VACATE JUDGMENT IN THE RIVERSIDE AND FURTHER AUTHORIZING TERMS OF A SETTLEMENT AGREEMENT PART OF THIS ORDINANCE AS THOUGIf BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: SECTION 1. The Mayor or the Chairman of the Board of Aldermen is authorized by the City to execute on behalf oP the City a Motion to Vacate Judgment and to vacate and set aside nll judgments against the City of Riverside and Betty Burch, a copy of aaid Joint Motion to Vacate Judgment being attached hereto and made a part of thiE ordinance as though fully set out therein. SECTION 2. The City further authorizes settlement on behalf oi' the City pursuant to the terms aet forth in the settlement Agreement which is attached hereto and made a part of this ordinance as though fully set out therein. SECTION 3. The City of Riverside door authorize the payment of $i-~7 SCC, c'~~ and does authorize the Mayor and City Clerk to execute a check for said sum for delivery to its attorneys and to be delivered to klaintil:f~s counsel upon approval and execution of all necessary documentation. PASSED TNI5 ~ ~ DAX OF ATTF T; ~. ~GtGei ~ y CITY CLERK - APPROVED THIS ~ DAY OF - .c t`t.~ee ~~ ' -- , 196. ;'~ 1 ~ ~ ~l ~ ~ l'~~a.. _ !~v ~ W` - MAYOR -1996. MAYOR SETTLEMENT AGREEMENT AND FUL ANCt FINAI M )TI lAf fj~~F~F~Q)- (AIMR This Settlement Agreement and Full and Final Release of Claims is willingly and voluntarily ontered into between Fred A. Wilken (heroinaftor referred to as "plaintiff") and City of Riverside, Betty Burch, Kris Aust, Jimmy Karr, John Marshall, Ed Rule, ©renda Teters and Don Witt (hereinafter referred to as "defendants"). WHEREAS, plaintiff made claims against defendants and filed a lawsuit in the United States District Court for the Western District of Missouri, Case No. 94-0435- GV-W-2-8, against defendants; WHEREAS, on October 26, 1995, a judgment was entered by the Clerk of the Court in favor of plaintiff and against defendants City of Riverside and Betty Burch; WHEREAS, plaintiff and defendants wish to settle the above lawsuit and any and all claims which they may have against each other and to vacate the judgment identified above; NOW, THEREFORE, plaintiff and defendants have entered into the following agreements: 1. )'laintifif, for and in consideration pf the sum of FIVE HUNDRED THIRTY- SkVEN Ti-IOUSAND FIVE HUNDRED DOLLARS ($537,500), the receipt of which consideration is hereby acknowledged, does hereby RL'LEA5C, ACQUIT AND FORCVER DISCHARGE 2:78 defendants, their predecessors, successors, assigns, insurers, agents, subsidiaries, divisions, representatives, employees, City officials, former Aldermen, current Aldermen and attorneys, and all persons acting by, through, under or in concern with any of them, from any and all complaints, constitutional claims, statutory claims, common law claims, demands, liabilities, obligations, promises, agreements, controversies, actions, causes of action, suits, rights, damages, costs, losses, debts, accounts, charges, expenses, all statutory and common law claims for attorneys' fees or costs, as the result of alleged acts or conduct as more specifically described in the Complaint, Amended Complaint and Second Amended Complaint in the cause styled Fred A Wilk n v sty of RiyerSid ~t al ,Case No. 94-0435-CV-W-2-8, pending in tha United States District Court for the Western District of Missouri, Western Division. The aforementioned sum is in full accord, satisfaction and final compromise settlement, of any disputed claims that plaintiff may have against defendants for personas injury, injury to reputation, loss of earning capacity, pain and suffering, emotional distress, compensatory damages, punitive damages, attorneys' fees, statutory or otherwise, expenses, court costs and any other monetary, legal and equitable relief including, but not limited ta, Court-ordered reinstatement. It is expressly understood and agreed by plaintiff that he is not reserving from this release any claims which he presently has against defendants whether such claims are known or unknown. ~~,» 2. Plaintiffs and defendants agree that the payment of the above monies represents claimed compensatory damages in the meaning of Section 1U4(a)(2) of the Internal Revenue Code and that the damages claimed are in the nature of tort damages for personal injury, plus Iega1 expenses and costs, and not for punitive damages, time loss, wages lost or benefits lost. Plaintiff and defendants further mutually agree that plaintiff shall be solely liable for federal, state or local tax, if any, on the proceeds that there shall be no 1099 Form issuQd to him in connection with the payment. 3. Plaintiff and defendants agree that they will jointly petition the Court to vacate the judgment rendered on the verdicts in the matter of ~!ed A, Wilken v Citv .1.~, Case No. 94-0435-CV-W-,2-i~, referenced above, and that the attorneys for plaintiff and defendants will enter a stipulation for dismissal with prejudice of ail aforesaid claims plaintiff has against defendants in the aforementioned lawsuit, and that attorneys for plaintiff and defendants will take all necessary steps to seek the approval of the Court to enter an order dismissing with prejudice all of plaintiff's claims against defendants. Plaintiff and his attorneys agree that all claims, if any, for attorneys' fees and court costs are included herein. It is expressly understood by the parties that the commitments set forth in this agreement are contingent upon the Court vacating the above judgment and upon plaintiff's dismissal with prejudice of the above lawsuit against defendants. For and in consideration of the dismissal with prejudice by plaintiff of his claims against defendants, defendants release, acquit and forever discharge plaintiff from any and all claims and causes of 22J79 '~ action which they presently have against plaintiff, whether such claims are known or unknown. ~l. Plaintiff and defendants agree never to file or institute, either directly or indirectly, any charge, claim, lawsuit, action or proceeding of any kind against each other on account of any matters over which they have waived their rights under this agreement. Plaintiff and defendants agree that if they should file or institute, either directly or indirectly, any action, claim or lawsuit or proceeding of any kind on account of any matters over which they have waived their rights in this agreement, the party filing such a suit will indemnify and hold the party sued harmless from any damages incurred as a result of such action, including any costs, expenses and reasonable attorneys' fees incurred in defending the action. 5. The terms and conditions of this agreement are in compromise settlement of disputed claims, the validity, existence or occurrence of which are expressly denied by defendants. It is understood and agreed by the parties that this agreement does not constitute, and shall not in any way be construed as, an admission by defendants of any violation of any federal, state or local constitution, statute, law, ordinance or regulation, or any common law contract or tort claim, or any admission that defendants acted wrongfully with respect to plaintiff and defendants specifically disclaim any such liability to plaintiff. Defendant City of Riverside agrees that in the future plaintiff and his immediate family will be treated like all other citizens of Riverside and there will not be any adverse action taken by the City of Riverside against him as a result of this lawsuit or settlement. 6. Should any section or portion of this agreement be held unreasonable or unenforceable by any court of competent and final jurisdiction, such decision of the court shall apply only to the specific section or portion involved and shall not invalidate the remaining section or portions of this agreement. 7. Plaintiff and defendants warrant they are over 18 years of age and legally competent to execute this release and that, before executing this release, each signatory to this release has discussed its legal and binding effect with his or her respective attorneys and fully understands the same arid executes it with full knowledge of its contents end meaning. 8. Plaintiff and defendants affirm that the only consideration for the signing of this agreement are the terms stated above, and that no verbal or written promises or agreements of any kind have been made to or with plaintiff or defendants by any person or entity whomsoever caused them to sign this agreement and that they are entering into and signing this agreement knowingly, voluntarily and freely. 9. This agreement shall be construed and interpreted in accordance with and governed by the laws of the State of Missouri. f=red A. Wilken STATE OF MISSOURI ) SS. COUNTY OF J On this day of , 1996, before me, a Notary Public, in and for said county and state, did personally appear Fred A. Wilken, personally known to me to be the person who executed the foregoing Settlement Agreement and Full and Final Rolease of Claims in writing and being first duly sworn acknowledged the execution of the samo as a voluntary act for the uses and purposes therein set forth with full knowledge of its content and effect. WITNESS my hand and seal on the date above written. Notary Public My Commission Expires: The undersigned hereby release any claim for statutory attorney's fees attorney's lien or claim for fees. and expenses they may have against the released parties. LAW OFFICES OF SHARON A. CO[3ERLY By: ItJ Sharon A. Coberly COBERLY & BLOWN By: Its: Sharon A. Coberly Sarah A. Brown IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION FRED A. WILKEN, plaintiff, vs. Case No. 94-0435-CV-W-2 CITY OF RIVERSIDE, et al., Defendants. JOINT MOTION TO VACATE JUDGMENT ENTERED OCTOEER 26, 1995, AND SUGGESTIONS IN SUPPORT COMES NOW plaintiff, Fred A. Wilken, and defendants City of Riverside and Betty Burch, and move the Court for an order vacating the judgment entered on October 26, 1995. In support of the parties' motion, the parties state as follows; 1. On October 16, 1995, the parties came before the Court on a trial of this matter. 2. On October 23, 1995, the jury returned a verdict in favor of plaintiff and against defendants City of Riverside and Betty Burch. 3. On October 26, 1995, the Court entered judgment upon the verdict. 4. Plaintiff and Defendants City of Riverside and Betty Burch filed post-trial motions that are currently pending. In addition to the issues raised in the post-trial motions, claims exist between plaintiff, the Board of Aldermen (Kris Aust, John Marshall, Ed Rule, Brenda 7eters, Jimmy Karr), and Don Witt. All parties, including the Board of Aldermen and Don Witt, have agreed, contingent upon the Court vacating the judgment entered in the above trial, to globally settle all claims end causes of action and to forego their respective rights to appeal. This global settlement also includes plaintiff's claim for equitable relief, reasonable attorneys' fees and court costs. 5. The current Board of Aldermen for the City of Riverside has authorized its attorneys to settle and to request the Court to vacate the judgment. 6. The parties desire to resolve all their differences without the nacessity of post-trial proceedings and future litigation. The mutual release of claims and settlement of this matter is in the best interest of all parties involved. For the promotion of judicial economy and efficiency, the parties ask the Court to enter an order vacating the judgment entered on October 26, 1995. 7. Upon the Court vacating the judgment, the parties, upon joint motion, will request the matter be dismissed with prejudice, with each party bearing its awn court costs. Respectfully submitted, Sharon A. Coberly (26316) Sarah Brown (37513) GOBERLY & BROWN 10801 West 87th Street, Suite 300 Overland Park, Kansas 66214 ATTORNEYS FOR PLAINTIFF Robert P. Numrich (23747) Martha Madden Weast (33040) EVAN.S & DIXON City Center Square 1 100 Main Street, Suite 2040 Kansas City, Missouri 64105-2119 (816) 472-4600 FAX: {Q16) 472-4013 ATTORNEYS FOR ALL DEFENDANTS and William C. Martucci {28237) James R. McKown (44728) SPENCER, FANE, BRITT & BROWNE 1400 Commerce Bank Building 1000 Walnut Kansas City, Missouri 64106 (816) 474-$100 FAX: (81 G) 474-3216 ATTORNEYS FOR DEFENDANT CITY OF RIVERSIDE Reviewed and approved by: STATE OF MISSOURI ) ss, COUNTY OF } Fred A. Wilken Subscribed and sworn to before me this day of My Commission Expires: 1996, Notary Public Reviewed and approved by: Betty Burch STATE OF MISSOURI } ss. COUNTY OF } Subscribed arxi sworn to before me this day of _ 1996. My Commission Expires: Notary Public ~~ena Reviewed and approved by: CITY OF RIVERSIDE, MISSOURI Qy: Its STATE OF MISSOURI ) COUNTY OF ~ ss -__._~__ Subscribed and sworn to before me this da of Y 1996. MY Commission Expires: Notary Public