LEE H. BALS, ESQ., JENNIE CLEGG, ESQ. MARCUS, CLEGG & MSTRETTA, P.A. Plaintiff's Counsel
WALTER MCKEE, ESQ. MCKEE BILLINGS, LLC, PA. Defendant's Counsel
MARK FRANCO, ESQ. THOMPSON & BOWIE THREE CANAL PLAZA
Thomas D. Warren Justice, Superior Court
Before the court is a motion by plaintiffs to enforce a settlement agreement set forth on the record after a judicial settlement conference held on June 17, 2015 (Cole, J.).
At the settlement conference, the parties agreed to the following terms: (1) a specified amount would be paid by the Lilley defendants to the Levesques in full satisfaction of the Levesques' claims against the Lilley defendants; (2) the Lilley defendants' counterclaim for attorney's fees or alternatively for quantum meruit against the Levesques would survive; (3) $90, 000 would be held in Flynn's IOLTA escrow account on behalf of the Levesques that would be used to satisfy the Levesques' liability, if any, to Lilley on the counterclaim; and (4) the Lilley defendants' third party claim against Flynn would be dismissed. Flynn would not be an actual party to the Lilley versus Levesque counterclaim, but he would defend the case and hold the $90, 000 as an escrow agent to pay out any liability incurred by the Levesques. The Levesques would not be personally liable for any judgment Lilley obtained but would only be liable up to the $90, 000 held in Flynn's IOLTA account. These terms were clearly and repeatedly set forth on the record by the various parties on June 17, 2015. Justice Cole ultimately stated, "General release is to be executed consistent with the language here today." Tr. 10.
On September 8, 2015 the Levesques filed a motion to enforce the settlement, asserting that they had prepared a draft settlement agreement consistent with the terms set forth on the record but that the Lilley defendants were insisting on additional terms that had not been agreed. The Lilley defendants oppose the motion to enforce and have identified two areas of disagreement. First, they contend that the agreement should contain the standard confidentiality agreement which they contend is "implied in each and every settlement." Second, they contend there is a disagreement concerning the maximum amount of the fee that they may be entitled to if they prevail on their counterclaim. At the time the motion to enforce and the Lilley defendants' objection to that motion were briefed, a transcript of the June 17, 2015 proceeding had not been prepared.
Since then the transcript has been prepared, and the court has the benefit of that transcript.
"Settlement agreements are analyzed as contracts, and the existence of a binding settlement is a question of fact." Estate of Snow, 2014 ME 105, ¶ 11, 99 A.3d 278 (citing Muther v. Broad Cove Shore Ass'n, 2009 ME 37 ¶ 6, 968 A.2d 539). "In order to be binding, a settlement agreement requires the mutual intent of the parties to be bound by terms sufficiently definite to enforce." Id.
There was no mention of confidentiality when the terms of the settlement were set forth on the record on June 17, 2015. There is no also indication anywhere in that discussion that settlement was in any way contingent on a confidentiality or nondisclosure provision. The Lilley defendants do not cite any authority for the proposition that a confidentiality agreement is implied in each and every settlement. In the court's view, although confidentiality provisions are frequently included in settlement agreements, they have to be bargained for and agreed to. See, e.g., Grove Farm Distributors Inc. v. John Labatt Ltd., 888 F.Supp. 1427 (N.D. Ill. 1995), aff'd mem., 134 F.3d 374 (7th Cir. 1998); Loe v. Thomaston, 600 A.2d 1090, 1092 (Me. 1991) (oral promise to keep settlement agreement confidential inconsistent with written release and thus j unenforceable).
Accordingly, the Levesques are entitled to enforce the settlement and receive the agreed settlement amount without being made subject to any confidentiality provision. The terms assented to on June 17 are sufficiently definite to be enforced notwithstanding the absence of a written agreement. See Muther v. Broad Cove Shore Ass 'n, 2009 ME 37 ¶ 8:
[T]he transcript of the settlement agreement, without more, conclusively establishes the existence of a binding settlement agreement as a matter of law, and subsequent disputes that arose while attempting to reduce the settlement to a stipulated judgment did not affect the authority of the court to enforce the agreement through the entry of a judgment incorporating the terms previously stipulated to by the parties.
On the other issue raised - the maximum amount of the fee which the Lilley defendants may recover if they prevail on their counterclaim - representatives for all parties stated on June 17, 2015 that the total amount subject to the counterclaim was the $90, 000 in Flynn's escrow account. See Tr. 4 (counsel for Flynn), 5 (counsel for Lilley defendants), 7 (counsel for the Levesques). The court therefore finds that the maximum amount of the fee to which the Lilley defendants may be entitled if ...