The Aftermath, Part II – Facilitation and “Civility Matters”

Last July, right after we won my Freedom of Information Act case in the Michigan Supreme Court, my husband Richard (who was also my attorney through the Kemp Klein Law Firm) emailed James Tamm about amicably resolving the lawsuit. Tamm was the attorney assigned by the city’s insurer to handle the case by the Michigan Municipal League Liability and Property Pool (MMLLPP). Richard asked Tamm if the city was willing to resolve the attorney fee issue and produce the records. Tamm ignored Richard’s question and asked how much our attorneys’ fees were at that point, claiming he needed that information to have a discussion with the city.

Shortly thereafter, Tamm met with a sad and angry city council in closed session and convinced them he had a couple of magical theories that would cause the Michigan Supreme Court justices to change their minds and rule in the city’s favor. 🙄 Tamm’s totally awesome plan was to tell the Michigan Supreme Court that I didn’t really win. (No, really. That was his argument.) Also, Tamm claimed that no one could get the records from City Attorney Tom Ryan anyway, so the city was apparently going to ignore the court’s decision if the court refused to change it. Except for Sue Wylie, the very sad and angry city council was all in on these arguments, especially since the MMLLPP said they’d pay for the pony ride back to the Michigan Supreme Court. Hope springs eternal!

Contacting the other side before filing a motion is required by the court rules because if the other side agrees with the relief you are requesting, then there’s no need to bother the court. This is called “seeking concurrence.” Most of the time, there is no agreement between the lawyers, the motion is filed, and the court decides.

After the city lost in the Michigan Supreme Court for the second time, Richard sought Tamm’s concurrence before he filed his motion asking for attorneys’ fees, costs, and disbursements. As was typical, Tamm ignored the email, and Richard filed the motion two days later. Tamm told the city council that it was unusual for an attorney to file a motion so soon after asking for concurrence. (It’s not.) And, when Tamm filed his fee motion in circuit court demanding that I reimburse the city for almost $100,000 for the “work” that he’d done (something the city hadn’t paid for), Michael Bonvolanta (one of the many attorneys in Tamm’s firm billing the MMLLPP for “work”) emailed Richard asking for concurrence 22 minutes after the motion was filed.

In December, while we were waiting for the hearing on the fee motion, Tamm approached us about voluntary facilitation to resolve the fee issues after meeting with the city council. We agreed, and Richard temporarily adjourned his fee motion. The city hired attorney Mark Peyser to represent the city at facilitation due to Ryan’s “conflict of interest.” Peyser’s fees were not covered by the MMLLPP (so Clarkston taxpayers paid for Peyser’s work directly).

There were just the two of us on our side at facilitation on February 1st. On the city’s side, the following people were present: Mayor Eric Haven, City Manager Jonathan Smith, Tamm, Ryan, Peyser, and a representative from the MMLLPP. Much to our surprise, Ryan brought an outside attorney, Mike Sullivan, to represent him at facilitation. (Sullivan’s Michigan State Bar bio indicates that he specializes in professional liability.) Since Ryan caused the lawsuit; refused to recuse himself; discussed a possible early settlement with Tamm (but not the city); was desperate to have his legal advice vindicated; took advantage of his relationship with Tamm to provide input into the lawsuit; and misrepresented the willingness of the MMLLPP to cover attorneys’ fees to the city council, undoubtedly influencing their decision to keep the case going rather than releasing the records, I think that it was quite fitting that Ryan was forced to consider that this just might have been malpractice.

Throughout the day, the city really didn’t seem very serious about resolving anything, apparently believing Tamm’s magical theory that I didn’t actually win my lawsuit and therefore, I wasn’t entitled to attorneys’ fees. (We know that Tamm was still pushing that theory because the facilitator mentioned it to us.) As I recall, their first offer against our >$300,000 fee claim was . . . $3,000. (And no, I didn’t miss any zeros there. In the response to our motion for attorneys’ fees, Tamm told the court that the city shouldn’t have to pay more than $750 because the media attorneys who’d written the amicus brief won the case, not me. Um, OK. 🙄 The amount of magical thinking and butthurt on the city’s side was truly unbelievable.)

The facilitator told us that city officials claimed they would have to declare bankruptcy if they had to pay any significant fee award. That’s absolutely not true; the city could simply refuse to pay a fee judgment and force us into filing a judgment levy on property tax bills, which is what we thought they were going to do anyway (and something that I warned you about here: https://www.clarkstonsecrets.com/clarkston-taxpayers-i-think-youre-about-to-be-screwed-by-the-city-council/). It’s also not consistent with what the city manager told the city council last year when he explained how the city could find a way to pay up to $300,000 in legal fees. (I played a recording of that part of the meeting for the facilitator so he would realize that they were blowing smoke up his drawers on this claim.) And, because the city could pay the judgment in one of these ways, the city would not qualify to file a bankruptcy petition. The city also alleged that they could lose insurance coverage over this issue. Even though they should lose their coverage, this wasn’t true either. (Have you gotten a flavor for how many lying liars are associated with the city yet?)

At some point, the city manager said that any payment would be split between the city, the MMLLPP, and “other sources.” We later learned that the “other sources” meant Ryan’s malpractice insurance carrier.

At the end of a long day, we were very far apart, and it was clear that the city wasn’t really serious about resolving anything. And even though the facilitator was supposed to be neutral, he was favoring the city in the negotiations by demanding that we reduce our fee claim while never insisting that the city increase what they were willing to pay by any significant amount. I thought that would be the end of it and we would proceed in court with the fee motion.

A couple days later, the facilitator asked us if we would object to his putting a dollar value on the case. If both parties agreed, then we would have agreement on a settlement number only.

And that’s what happened. The facilitator suggested $160,000 to resolve the case. We agreed, but the agreement was conditioned on the entry of a judgment that included judgment interest, that the city would withdraw all of its pending motions (including its motion to try to make me pay almost $100,000 in attorney fees to the city), and provided that the city council agreed to that settlement no later than its next scheduled meeting on February 22^nd. Richard attached a draft of an agreement with our acceptance of the $160,000 number and sent it to the facilitator. This was the same draft agreement he’d sent to the city and the facilitator before facilitation, and something that we told the facilitator we needed to resolve the case.

Within minutes, the facilitator said that both parties had agreed on a number, but settlement was conditioned on counsel agreeing to a formal settlement agreement. The facilitator, a former judge with decades of experience, later claimed that he meant to say “city council” instead of “counsel” in support of the city’s efforts to force me to sign a one-sided settlement agreement that I hadn’t agreed to in any form, something our circuit court judge wouldn’t do unless he wanted to be overturned on appeal. The facilitator also acted improperly by having secret contact with the city over the settlement agreement issue. He shared our emails with the city, but he refused to share the city’s emails with us. Did I mention he was supposed to be an impartial facilitator? 🙄

Let me briefly explain some basic contract law that all law students learn in their first semester of law school. An offer and acceptance – that agrees in all important terms – is required to have a contract. It’s called the mirror image rule – any acceptance must be a mirror image of the offer or there is no agreement. For example, if I offer you 10 apples for $5, and you say that you will accept my 10 apples for $5 provided that I also give you an orange, the legal effect of that is that we don’t have a contract. My offer – 10 apples for $5 – was rejected when you added a term (an orange). What you’ve done legally is reject my offer and made a counteroffer to pay me $5 for 10 apples and an orange. If I reject your counteroffer, there is no contract. If I don’t say or do anything, there is no contract because contracts aren’t inferred. We have broad freedom to contract in the United States, but contracts aren’t forced on people who haven’t agreed to the important terms. If there’s a legal challenge, a court will first decide if a contract exists, and if so, what the important terms are, based on the evidence provided by the parties.

All we had at this point was concurrence on a number but no formal settlement agreement. A settlement agreement was required to explain how and when the $160,000 would be paid, what would happen to the outstanding motions waiting for a hearing in court, how the case would formally end, etc.

Richard immediately sent an additional copy of a draft settlement agreement and judgment to Tamm with the settlement number added in. As was typical, Tamm ignored the email. While rudeness is unfortunately quite common in the legal profession, it’s very hypocritical for Tamm to act this way. His firm bio states: “For the past several years [Tamm] has participated in ‘Civility Matters’ programs at the University of Detroit Mercy School of Law and Wayne State University Law School, where he is teaching law students the importance of civility and professionalism.” Without much effort, you can find a photo of Tamm standing next to a sign stating that “Civility Matters” on the internet. (Excuse me for a moment while I 🤣 🤣 🤣). Basically, Tamm is just another part-time law school professor who encourages students to do as he says, not as he does (which is one of the reasons that law students are so cynical after they graduate).

Later in the day, after Tamm’s failure to respond, Richard sent his proposed agreement to Peyser. We’d learned that the city had scheduled a special council meeting to accept some sort of undisclosed settlement agreement, but there was no settlement on anything but the final number. Richard emailed Peyser to tell him that the resolution in the city council packet was insufficient to serve as a settlement agreement. Peyser emailed back and said he was unavailable to discuss anything before the city council meeting due to a doctor’s appointment, but he promised to get back to Richard later in the day. (He didn’t.)  Even though he was unavailable to talk to us, Peyser appeared at the city council meeting a couple of hours later and convinced the council to agree to something in a closed session that wasn’t disclosed in an open session. Whatever that was, it was wasn’t a settlement agreement.

A few days later, Peyser sent Richard a proposed “settlement agreement and release of all claims.” This document was drafted by someone at Tamm’s firm because the document footer had Tamm’s firm’s identification numbers on it in the lower left corner. I’ve attached the agreement here – 20210215 – Settlement Agreement and Release of All Claims.

Keeping in mind that this was a FOIA case that I won, and the only thing left to agree on was the amount of attorney fees, the supposed settlement agreement was both bizarre and unprofessional at the same time:

• • The insurer was mentioned in the definition section but nowhere else throughout. There is no need to define an entity that isn’t included later on in the agreement.
  • I sued the City of the Village of Clarkston, but the “defendants” included everyone, even former mayors.
  • Though we were arguing about legal fees in a Michigan case that I won, my “released claims” included claims under every law in the universe, known and unknown. Not only was I supposed to release every claim in the universe, my attorney was supposed to do that too.
  • Even though Richard is an attorney for Kemp Klein Law Firm, the check would only be issued to “Susan Bisio and her attorney Richard Bisio.” This is irregular. If the check is issued to the client and the attorney, it is typically made out to the client and the attorney’s firm, not the individual attorney. This was just another expression of Tamm’s delusion that Richard wasn’t working for a law firm but was instead madly typing pleadings in our basement.
  • After arguing before the Michigan Supreme Court that Ryan wasn’t part of the lawsuit, I was supposed to release Ryan and his law firm from all claims – even though Ryan wasn’t giving me anything for this release. In my earlier example involving apples and oranges, this is the equivalent of Ryan demanding that I give him $5 in exchange for no apples or oranges.
  • My supposed release included claims for injuries, as though this was some sort of auto negligence lawsuit as opposed to a FOIA case that I’d won in the supreme court with the only the remaining issue being the amount of attorneys’ fees, costs, and disbursements.
  • In exchange for $160,000, I needed to waive all appeals and dismiss my lawsuit with prejudice. (Um, we weren’t appealing anything. This was a fee claim that hadn’t even been heard in the circuit court that we were voluntarily agreeing to settle for about 50% of the amount that we could document.)
  • I was also supposed to agree that I wasn’t the “prevailing party” in my FOIA lawsuit. This, plus the dismissal with prejudice, would have allowed Tamm to try to recover all of the fees that the MMLLPP had paid him using another of his whacked out legal theories, since he still had his meritless fee motion pending in the circuit court. The only reason that I was entitled to attorneys’ fees, costs, and disbursements was because I was the prevailing party.
  • I needed to acknowledge that the city admitted no liability, fault, proximate cause or damages (the phrase “proximate cause” relates to tort claims, not attorney fee claims under FOIA), and I was also supposed to acknowledge that I’m not entitled to attorney’s fees. (Yes, really.)
  • I needed to agree that Kemp Klein had no claims in the lawsuit.
  • I was required to agree that I couldn’t pursue any additional claims against Ryan, his firm, or the city for the Michigan FOIA claim (that I won) in any federal, state, appellate court, or tribunal, and if I did, I needed to pay for their defense of these claims. (Hmmm . . . were they trying to get me to pay Ryan if I filed a professional grievance against him? I wonder.) Oh, and I needed to pay for any costs and fees if Kemp Klein sued the city for some reason.
  • I was also asked to agree that the release is “fair, reasonable and in [my] best interest” and promise never to sue again over the issues in my FOIA lawsuit – that I’d already won. 🤣 🤣 🤣 (Seriously?)
  • Finally, only my attorney and I were supposed to sign the agreement. The city wasn’t going to sign anything and wasn’t agreeing to be bound by anything.

Though some of the terms standing alone might not have been objectionable, in the aggregate, they were insane. And this steaming pile of horse manure is what the city would later misrepresent to our Oakland County Circuit Court judge as a “standard agreement” in their motion to enforce this supposed settlement agreement that I’d never agreed to. No wonder they were ashamed to attach it to their motion.

The rest of what happened is outlined in Richard’s response to the city’s motion to enforce the city’s supposed “settlement agreement,” which you can read for yourself here (20210308 – Response to Motion to Enforce Settlement) and here (20210308 – Affidavit Opposing Motion to Enforce Settlement). I’ve attached a copy of the actual settlement agreement here (20210331 – Fully signed settlement agreement), and a copy of the check from Kerr Russell (Tamm’s firm) to Kemp Klein (Richard’s firm) in the amount of $70,000 here (20210331 – Kerr Russell). The $70,000 transfer includes the city’s payment of $35,000, and a payment from Ryan’s malpractice carrier for $35,000. The check from the MMLLPP is attached here (20210331 – MMLLPP). (I removed the account numbers before posting the payment information.)

(To be continued . . . )