REHBEIN v. DANAHAR

Warren K. Urbom, United States Senior District Judge

Before me is what the plaintiff has styled a "Recant Motion of Settelment (sic) of CV93-3434 et al."

A settlement agreement was signed by the parties to these two above-captioned cases. The plaintiff seeks now to have the settlement agreement rescinded, because the settlement agreement "was forced under duress, and colusion (sic) by counsel Dennis W. Collins working on the side with Ms. Terri M. Weeks." Filing 168, fifth page. An evidentiary hearing was held on January 8, 2001, and from the evidence adduced at that time I make findings of fact by the greater weight of the evidence.

Dennis W. Collins of Norfolk, Nebraska, was the plaintiff's appointed counsel when the settlement agreement was developed and signed. Negotiations were conducted by Mr. Collins on behalf of the plaintiff and Ms. Terri M. Weeks on behalf of the defendants. From time to time Mr. Collins would communicate with the plaintiff, who was imprisoned, by letter, phone or personally. As new or different features of a proposed settlement agreement were proposed and rejected or accepted by one side or the other, the communications would reflect those events. Although the plaintiff wanted a commitment by the defendants that the plaintiff would receive sex change surgery, none of the proposals by the defendants included such a surgical procedure. The final draft, signed by all parties, contained these assurances to the plaintiff:

"Sex realignment" may be more accurate, but I use the terms interchangeably for purposes of this memorandum.

1. the plaintiff would receive a weekly private counseling session with a Ph.D psychologist, as long as the psychologist deemed individual therapy to be needed. The stated goal was to reintegrate the plaintiff "into the current mental health services available to all DCS inmates." Exhibit 1, ¶ 5. At the counseling sessions the plaintiff was explicitly free to raise whatever issues the plaintiff believed were affecting the plaintiff's mental health and four specific issues were stated. The psychologist was to ascertain what items need to be addressed in order to facilitate the plaintiff's mental health treatment.

2. a treatment plan would be developed as a part of the counseling sessions.

3. the plaintiff would receive a monthly individual private counseling session with a DCS psychiatrist, to continue until the psychiatrist deemed that the monthly sessions were no longer needed. The announced goal was to reintegrate the plaintiff "into the current mental health programs and services available to all DCS inmates." The psychiatrist would determine the type of mental health medication the plaintiff required. The plaintiff was to be permitted to discuss with the psychiatrist the medications to be given.

Settlement negotiations had begun at some time before July 9, 1997. On July 9, 1997, Ms. Weeks wrote to Mr. Collins the gist of what would become the final agreement. Defendants' Exhibit 4. It offered to the plaintiff individual counseling sessions weekly with a Ph.D-level psychologist and assurance that he would be seen on a monthly basis by one of the department's psychiatrists. Trial preparations were under way and she asked Mr. Collins to respond at his earliest convenience. Mr. Collins responded on July 10, somewhat sharpening and broadening the defendants' proposal, asking that the State of Nebraska reimburse the plaintiff for the filing fees, asking that the settlement agreement refer to the administering of medication, asking that special attention in the counseling sessions be given to certain problems that the plaintiff was having with other persons and conditions of incarceration, and suggesting dismissal of the pending lawsuits without prejudice. These suggested changes came as a result of consultation between Mr. Collins and the plaintiff. By Terri Weeks' letter of July 11 the request for filing fees was rejected, the suggestion that any dismissal be without prejudice was rejected, and any suggestion that the settlement determine a method of treatment was rejected. Defendants' Exhibit 6. A facsimile transmission on July 11 made some slight suggestions, (Defendants' Exhibit 7) and another on July 12 expanded the language on some of the provisions. Defendants' Exhibit 8.

The documents written by Mr. Collins usually referred to the plaintiff as "Gloria" which was the plaintiff's preference.

The July 12, 1997, letter to the plaintiff from his attorney said that it is enclosing "another draft of a proposed stipulation," indicating that at least one previous draft had already been sent to the plaintiff. The letter asked that the plaintiff review the enclosed draft and respond "right away." The letter thanked the plaintiff for "your help in putting this together," indicating, again, that there had been consultation over the contents of the proposed settlement agreement.

The July 12 letter cautioned the plaintiff to "look this over carefully." Defendants' Exhibit 3. The letter then said, "You are getting the counseling you would have to have to get a sex change, and you are getting a benefit no one else in the facility gets."

The plaintiff now accuses Mr. Collins of having lied to him to get out of the case. He says that he trusted Mr. Collins to tell him the truth, but that Collins did not do so. The plaintiff says that she believed she would get a sex change. She says she did not read the final settlement draft because she was not permitted to have her reading glasses in the visitor's room when Mr. Collins came on July 20 to get the plaintiff's signature on the settlement document. I discount the plaintiff's testimony in this regard. The testimony of Mr. Collins is compelling that the plaintiff had already received at least one and perhaps two previous drafts of the proposed stipulation, all of which contained the same essential elements-weekly consultations with a psychologist and monthly consultations with a psychiatrist, but none agreeing that a sex change operation would be given. Additionally, I am persuaded that Mr. Collins reviewed with the plaintiff the contents of the settlement agreement in detail. The plaintiff wanted a sex change operation, to be sure, and she would need counseling in order ever to have such a change, but this agreement at no time was contemplated to obligate the state or any of the defendants to provide a sex change to the plaintiff. Indeed, the plaintiff understood that.

I ordinarily refer to the plaintiff as being feminine, because of her expressed wish.

There was no force applied to the plaintiff, there was no duress applied to the plaintiff, and there was no collusion between Mr. Collins and Ms. Weeks.

In Bock v. Bank of Belleview, 230 Neb. 908, 914, 434 N.W.2d 310 (1989), the court said:

To constitute duress, there must be an application of such pressure or constraint that compels a person to go against that person's will and takes away that person's free agency, destroying the power of refusing to comply with the unjust demands of another. . . . Moreover, to be voidable because of duress, an agreement must not only be obtained by means of the pressure brought to bear, but the agreement itself must be unjust, unconscionable, or illegal. The essence of duress is the surrender to unlawful or unconscionable demands. It cannot be predicated upon demands which are lawful, or the threat to do that which the demanding party has a legal right to do. Lustgarten v. Jones, 220 Neb. 585, 371 N.W.2d 668 (1985).

Here, there was no application of any pressure or constraint that compelled the plaintiff to go against her will or that took away her free agency or the power of refusal to sign the settlement agreement. Furthermore, the agreement itself was not unjust, unconscionable, or illegal.

The plaintiff's brief in support of the pending motion cites Restatement Second of Contracts (1979), regarding undue influence as being an unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relationship between them is justified in assuming that the person will not act in a manner inconsistent with his welfare. I accept that as an accurate statement of the law and I agree that Mr. Collins was in a position to exercise persuasion and was in a position whereby the plaintiff was justified in assuming that Mr. Collins would not act in a manner inconsistent with the plaintiff's welfare. In that position Mr. Collins had a duty to provide full, exact and truthful information of all matters that entered into a negotiation between them. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955). I agree also that the transaction, such as here in the settlement transaction, a confidential relationship existed between the plaintiff and Mr. Collins and that the court's duty is to scrutinize the transaction critically to see that no inequitable action has taken place and no injustice has occurred. Id.

Upon such an examination here I conclude that there has been no injustice or inequitable action.

I think the plaintiff was susceptible to being mislead by her desire for a sexual realignment. I find, also, that there was opportunity for Mr. Collins to exercise undue influence upon the plaintiff but there was no disposition on his part to exercise undue influence and he did not. Neither has there been any collusion by the defendants or their counsel or any exercising of duress or undue influence by the defendants or their counsel.

IT IS ORDERED that the "Recant Motion of Settelment (sic) of CV93-3434 et al.," filing 168, is denied.