HomeMy WebLinkAbout1996-191J \WPDOCS\ORD\COHAGREL ORD
ORDINANCE NO.q(0-191
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AND AUTHORIZ-
ING THE CITY MANAGER TO EXECUTE A COMPROMISE, SETTLEMENT AND
RELEASE OF ALL CLAIMS IN THE MATTER OF COHAGEN, ET AL V. CITY OF
DENTON, TEXAS; AUTHORIZING PAYMENT OF $21,805 50 TO THE PLAINTIFFS
TO CONSUMMATE THE SETTLEMENT; AND DECLARING AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the City Manager is hereby authorized to
execute a Compromise, Settlement and Release of All Claims in the
matter of Cohagen, et al v. City of Denton, providing for the
settlement and compromise of the litigation now pending between the
parties in the 211th District Court, Denton County, Texas, Cause
No. 94-50367-367, and payment in the amount of Twenty-one Thousand
Eight Hundred Five Dollars and Fifty Cents ($21,805.50), in
accordance with the terms of the Compromise, Settlement and Release
of All Claims, a copy of which is attached hereto
SECTION II. That this ordinance shall become effective
immediately upon its passage and approval
PASSED AND APPROVED this the day of 1996.
JACI LLER, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: U;,.
APPROVED AS TO LEGAL FORM.
HERBERT L. PROUTY, CITY ATTORNEY
BY:
CITY OF DENTON TEXAS MUNICIPAL BUILDING • DENTON, TEXAS 76201 • TELEPHONE (817) 566-8200
Office of City Attorney
October 15, 1996
Mr. Chris Raesz, Attorney By Hand Delivery
Philips, Hopkins, Eames, Shelton,
Cobb & Perritt
525 North Locust Street
Denton, Texas 76201
Re: Cause No 94-50367-367
Cohagen et al v City of Denton
Transmittal of Settlement Documents / Dismissal Order
Dear Mr. Raesz:
Enclosed herewith please find a file -marked copy of the Joint
Motion to Dismiss with Prejudice, as well as a file -marked copy of
the Compromise Settlement and Release of All Claims in the above
numbered and entitled cause. I presented the motion to Judge
Shipman earlier this afternoon Judge Shipman signed the Order Of
Dismissal, a conformed copy of which is enclosed herewith.
This is also to confirm that I
#1442 in the amount of $21,805
the fully executed settlement
the agreed settlement amount.
hand -delivered City of Denton check
50 to you yesterday, in exchange for
documents, representing payment of
We are pleased that a settlement could be reached regarding this
case. Should you have any questions, please advise.
Sincerely,
Michael S Copeland
Assistant City Attorney
MSC/cd
Enclosures
pc: Ted Benavides, City Manager
Jennifer Walters, City Secretary (w/enclosures)
Ron Clark, Wolfe, Clark, Henderson & Tidwell (w/enclosures)
Tracy Kunkel, Court Clerk
J \uPDOCS\COR\RRESZ LET
"Dedicated to Quality Service"
NO. 94-50367-367
JO ANN COHAGEN, individually,
RICKYE EARL COLEMAN and
PATRICIA PENNINGTON, Executors of
the Estate of Earl Coleman,
Plaintiffs
v
THE CITY OF DENTON,
Defendant
IN THE DISTRICT COURT
OF DENTON COUNTY, TEXAS
211TH JUDICIAL DISTRICT
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS
KNOW ALL MEN BY THESE PRESENTS
That it is agreed by and between Plaintiffs, JO ANN COHAGEN, Individually, and
RICKYE EARL COLEMAN and PATRICIA PENNINGTON, Executors of the Estate of EARL
COLEMAN, and CITY OF DENTON, Defendant, and its past, present, and future officers,
elected officials, employees, agents, and attorneys (all in both their official and individual
capacities), and their respective insurers, and those in privity with any of them, as follows
1 The CITY OF DENTON will pay to Plaintiffs the total aggregate sum of
TWENTY-ONE THOUSAND EIGHT HUNDRED FIVE AND 501100 DOLLARS ($21,805 50)
(of which amount $11,308 50 represents past due rent previously tendered) the receipt and
sufficiency of which is hereby acknowledged
2 For and in consideration of said payment and the execution of this document,
Plaintiffs hereby fully release, discharge, and acquit the CITY OF DENTON from, and agree
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 1
that the sum so paid and the execution of this document shall be in full and final satisfaction and
compromise of all actions, causes of action, claims (including subrogation claims and claims
for contribution or indemnity as to money paid in connection with this settlement), and demands,
on account of or in any way growing out of any and all negligence, intentional misconduct,
violation of Constitutional or statutory rights, conspiracies, breach of any duty of good faith and
fair dealing, fraud, breach of contract, death, personal injuries, damage to reputation, pain and
suffering, grief, bereavement, loss of consortium, loss of companionship, damage to familial
relationship, mental anguish, psychic injury, loss of earning capacity, loss of household services,
loss of rent, loss of profits, loss of money, damage to property, taking of property, attorney's
fees, pre- and post judgment interest, and all other causes of action and damages whether known
or unknown and whether heretofore asserted or not, owned or possessed by any of said Plaintiffs
against said Defendant growing out of or in any way connected with any of the leases of
Plaintiffs' property by the City, the renovation of Plaintiffs' property by the City, the
termination of the lease of Plaintiffs' property by the City, and the move from Plaintiffs'
property by the City, which occurred on or about 1981 through 1994, all as more fully described
in the pleadings on file herein, to which reference is made for more complete description, any
events or litigation connected with or growing out of said events or this settlement, or any event
which occurred prior to the date of this settlement regarding the events set forth more fully in
the pleadings of this matter Plaintiffs each do hereby agree to indemnify and save harmless the
said CITY OF DENTON of and from all further claims, demands, costs, or expenses arising
out of any injuries and damages sustained by Plaintiffs or by any of their respective natural or
adoptive family members or relatives, as a result of any lease of Plaintiffs' property by the
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 2
City, the renovation of Plaintiffs' property by the City, the termination of the lease of Plaintiffs'
property by the City, and the move from Plaintiffs' property by the City, any of the events
connected with, or growing out of, said events or this settlement, or any event set forth more
fully in the pleadings on file in this matter which occurred prior to the date of this settlement
3 For and in consideration of the execution of this document, Defendant hereby fully
releases, discharges, and acquits Plaintiffs from, and agree that the execution of this document
shall be in full and final satisfaction and compromise of all actions, causes of action, claims and
demands, on account of or in any way growing out of any and all negligence, intentional
misconduct, violation of Constitutional or statutory rights, conspiracies, breach of any duty of
good faith and fair dealing, fraud, breach of contract, loss of profits, loss of money, damage to
property, taking of property, attorney's fees, pre- and post -judgment interest, and all other
causes of action and damages whether known or unknown and whether heretofore asserted or
not, owned or possessed by said Defendant against any of said Plaintiffs growing out of or in
any way connected with any of the leases of Plaintiffs' property by the City, the renovation of
Plaintiffs' property by the City, the termination of the lease of Plaintiffs' property by the City,
and the move from Plaintiffs' property by the City, which occurred on or about 1981 through
1994, all as more fully described in the pleadings on file herein, to which reference is made for
more complete description, any events or litigation connected with or growing out of said events
or this settlement, or any event which occurred prior to the date of this settlement regarding the
events set forth more fully in the pleadings of this matter Defendant hereby agrees to indemnify
and save harmless, to the extent allowed by law, the Plaintiffs of and from all further claims,
demands, costs, or expenses arising out of any injuries and damages alleged to be sustained by
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 3
Defendant as a result of any lease of Plaintiffs' property by the City, the renovation of
Plaintiffs' property by the City, the termination of the lease of Plaintiffs' property by the City,
and the move from Plaintiffs' property by the City, any of the events connected with, or
growing out of, said events or this settlement, or any event set forth more fully in the pleadings
on file in this matter which occurred prior to the date of this settlement
4 Plaintiffs and Defendant each understand and agree that the amount paid and other
consideration under this agreement is in full satisfaction of all injuries and damages arising on
account of the above described events and that they will receive no further sums of money or
other consideration therefrom Plaintiffs and Defendant each agree to not assert or prosecute
any further claims or lawsuits therefore against anyone whomsoever, whether or not herein or
otherwise named, described or identified Any and all claims against parties not specifically
released herein, if any, are hereby assigned in full to the parties hereby released
5 Further, each Plaintiff and Defendant expressly warrants that there are no
outstanding subrogation claims, and it is expressly understood and agreed that Plaintiffs have
already paid or will pay out of the aforementioned sum of TWENTY-ONE THOUSAND EIGHT
HUNDRED FIVE AND 501100 DOLLARS ($21,805 50) all property damages received in the
past or to be incurred in the future and that Plaintiffs will each defend, indemnify, and hold
harmless the Defendant of and from the payment of such subrogation claims Further,
Defendant expressly warrants that there are no outstanding subrogation claims on their behalf
and all expenses incurred by Defendant have been paid by Defendant and that Defendant will
defend, indemnify and hold harmless Plaintiffs of and from payment of any and all such claims
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 4
6 Plaintiffs each expressly warrant that their spouses, if they have one, have not
suffered any loss of consortium as a result of the events in question or Plaintiffs' alleged injuries
and damages Plaintiffs each also expressly warrant that no member of their family has suffered
any psychic injury, mental anguish and/or damage to the familial relationship as a result of the
events in question or as a result of Plaintiffs' alleged damages and injuries Plaintiffs each agree
to defend, hold harmless and indemnify the CITY OF DENTON from the payment, and for the
defense, including, expenses, and reasonable attorney's fees, of any and all such claims for loss
of consortium, psychic injury, mental anguish and/or damage to the familial relationship
7 Plaintiffs and Defendant each hereby represent and warrant to the other party(s)
and to the Court that no promises, representations or agreements not set out herein have been
made to them, that this Compromise Settlement and Release of All Claims is executed without
reliance upon any statement or representation of any person or parties released or their
representatives, concerning the nature and extent of the injuries, damages and/or legal liability
therefore, that acceptance of the consideration set forth herein is a full accord and satisfaction
of a disputed claim, which is incapable of being exactly determined, and for which liability is
expressly denied, and that this Compromise Settlement and Release of All Claims is made of
their own free will and accord after consulting with and acting upon the advice of their attorney
8 FOR THE SAME CONSIDERATION, it is agreed that all claims in the above
styled suit will be dismissed with prejudice to refihng the same, and that costs of court will be
taxed to the party incurring the same
9 Although originally typed at the office of attorneys for the CITY OF DENTON,
this Compromise Settlement and Release of All Claims is a contract which is the product of
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 5
negotiations between the parties and attorneys for the parties and which shall, in the event of any
dispute over its meaning or application, be interpreted fairly and reasonably, and neither more
strongly for or against either party This document contains the entire agreement of the parties
hereto THE PROVISIONS OF THIS COMPROMISE SETTLEMENT AND RELEASE OF
ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS
WITNESS OUR HANDS this (D day of L Yg— , 1996
APPROVED
PHILIPS, HOPKINS, EAMES,
SHELTON, COBB & PERRITT, P C
By
CHRIS RAESZ
ATTORNEYS FOR PLAINTIFFS
DEFENDANT
CITY OF DENTON, TEXAS
By /�- (%) sdzi
TED BENAVIDES, City Manager
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 6
APPROVED
-tm4u N v
RONALD H CLARK(W' )N`44"
Attorney for Defendant
HERBERT L PROUTY, City Attorney
By r
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged bef re me on the day of
j�(gG 1996, by JO ANN COH EN
Notary Pub11c, State Texas
* WyPuppeli�odMel
!N We mm EMWreetoao-ee Notary's Printed ame
Mj
My Commission Expires
THE STATE OF TEXAS §
COUNTY OF DENTON §
This� instrument was acknowledged aoe me on th . day of
1996, by RICKY EAEMAN
y PublicState o Tex�as
�C
Lw� �, ild�f'�J
LAUDA KIYUSNotary's Printed Name
�O r
M TOM My Commission Expires 17j
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 7
:'{uiiF An Al
i
re, ,fi°n Ji n"UYI �
T�.,j
r
THE STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on the day of
/f1QJ 1996, by PATRICIA PENNING/TON
SHIMM MCGEE otary Publt tate of Texas
Q
THE STATE OF TEXAS
COUNTY OF DENTON
Notary's Printed Name
My Commission Expires
This instrument was acknowledged before me on the I ) day of
C Jyj ,� , 1996, by TED BENAVIDES, City Manager of the City of Denton, Texas ,
------------------------
--------------
o` pV °0Ba STEPHANIE FORD
NOTARY PUBLIC STATE OF TEXAS
A� My Cnmmissmn Eepiw Feb 19 1997
NotaryTPublic, State of Texas
�-'462hr� zRL A
Notary's Printed Name
My Commission Expires cc I ��
COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 8
NO. 94-50367-367
JO ANN COHAGEN, individually, § IN 1mI'iE i�S'f'1rtId1 dOtIRT
RICKYE EARL COLEMAN and § t i_
PATRICIA PENNINGTON, Executors of § MfF co ix
the Estate of Earl Coleman, §
Plaintiffs §
§ OF DENTON COUNTY, TEXAS
v §
§
§
§
THE CITY OF DENTON, §
Defendant § 211TH JUDICIAL DISTRICT
TO THE HONORABLE JUDGE OF SAID COURT
Plaintiffs, JO ANN COHAGEN, Individually, and RICKYE EARL COLEMAN and
PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, and Defendant
CITY OF DENTON, move this Court to dismiss with prejudice all of their claims and causes
of action against both Defendant and Plaintiffs, for the reason that all disputes between these
parties have been resolved Such resolution is not an admission of liability on the part of any
party, but is expressly made in order to buy peace and avoid the cost, uncertainty and expense
of litigation
WHEREFORE, PREMISES CONSIDERED, Plaintiffs JO ANN COHAGEN,
Individually and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of
the Estate of EARL COLEMAN, and Defendant CITY OF DENTON, request that this Court
enter an Order dismissing with piejudice all claims of Plaintiffs against Defendant, CITY OF
DENTON, and all claims of Defendant CITY OF DENTON against Plaintiffs, JO ANN
JOINT MOTION TO DISMISS WITH PREJUDICE PAGE 1
COHAGEN, Individually and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON,
Executors of the Estate of EARL COLEMAN, with costs to be taxed to the party incurring the
same
Respectfully submitted,
PHILIPS, HOPKINS, EAMES,
SHELTON, COBB & PERRITT, P C
525 North Locust Street
P 0 Box 2027
Denton, Texas 76202-2027
(817) 566-7010 Office
(817) 898-0502 Facsimile
By
CHRIS RAESZ
State Bar No 16460150
ATTORNEYS FOR PLAINTIFFS
WOLFE, CLARK & HENDERSON, L L P
123 N Crockett, Suite 100
Sherman, Texas 75090
By TY y-n,-& P lr�
RONALD H CLARK �,4f
State Bar No 04298100
ATTORNEY FOR DEFENDANT
JOINT MOTION TO DISMISS WITH PREJUDICE PAGE 2
NO. 94-50367-367 � r Lf -- ""
JO ANN COHAGEN, individually, § INTIN rkkf ll bI>'�'T
RICKYE EARL COLEMAN and § t U
PATRICIA PENNINGTON, Executors of § i+,L)s o ix
the Estate of Earl Coleman, § oE�ur t
Plaintiffs §
§ OF DENTON COUNTY, TEXAS
v §
§
§
THE CITY OF DENTON, §
Defendant § 211TH JUDICIAL DISTRICT
ORDER OF DISMISSAL
On tins day came on to be considered the Joint Motion to Dismiss with Prejudice in the
above entitled and numbered cause The Court, having considered the said Motion, and the
pleadings and papers on file in this case, is of the opinion that said Motion should be granted
It is therefore ORDERED that the Court hereby dismisses with prejudice all claims of
Plaintiffs, JO ANN COHAGEN, Individually, and RICKYE EARL COLEMAN, and
PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, against Defendant,
CITY OF DENTON, which were asserted or which could have been asserted in the above styled
and numbered cause, or which arise directly out of the events set forth in the above styled and
numbered cause, whether or not asserted herem
It is further ORDERED that the Court hereby dismisses with prejudice all claims of
Defendant, CITY OF DENTON, against Plaintiffs, JO ANN COHAGEN, Individually, and
RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of the Estate of EARL
COLEMAN, which were asserted or which could have been asserted in the above styled and
ORDER OF DISMISSAL PAGE 1
numbered cause, or which anse directly out of the events set forth in the above styled and
numbered cause, whether or not asserted herein
It is further ORDERED that all costs herein shall be paid by the party incurring the
same
SIGNED this /6- day of_ & , 1996
JUDGE PRESIDING
APPROVED AND AGREED TO
CHRIS RAESZ
Attorney for Plamtif
An N au-
RONALD H CLARK w�
Attorney for Defendant
ORDER OF DISMISSAL PAGE 2