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Steven Roy, Charles Wolff, Eric Chaplin, Joel Smith, John Gosselin v. Commissioner

January 25, 2012

STEVEN ROY, CHARLES WOLFF, ERIC CHAPLIN, JOEL SMITH, JOHN GOSSELIN, BRUCE USHER, WILLIAM JOHNSON, AND PRAYER F. FARROW, PLAINTIFFS
v.
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS; ET AL. DEFENDANTS



The opinion of the court was delivered by: Steven J. McAuliffe Chief Judge

Opinion No. 2012 DNH 019

ORDER

Defendants move to enforce a settlement of Plaintiff John Gosselin's underlying claims, a settlement to which, they say, Gosselin and his attorney agreed. Gosselin objects to the motion, claiming that he did not agree to settle his underlying claims, or, he was coerced into doing so, and that to the extent his legal counsel agreed to a settlement on his behalf, counsel was not authorized to do so. An evidentiary hearing was held on November 30, 2011.

Having heard testimony from Gosselin and his counsel, Lawrence A. Vogelman, Esq., and having considered the evidence presented, I find the following facts by a preponderance of the evidence:

1. Attorney Vogelman represented Gosselin in the underlying civil case.

2. Gosselin and Attorney Vogelman voluntarily participated in mediation proceedings conducted by an experienced and highly regarded mediator, William Mulvey, Esq.

3. Before the mediation session began, Attorney Vogelman explained to Gosselin that the mediator would facilitate discussions aimed at settling his case and, if a settlement was achieved, that would end the litigation.

4. The mediator, Attorney Mulvey, also explained to Gosselin, before mediation efforts began, that if an agreement was reached the underlying case would be over.

5. Gosselin understood that the purpose and goal of the mediation effort was to settle his claims if possible. As reflected in Exhibits A and F, documents prepared by Gosselin, he understood that if a settlement agreement was reached, it necessarily would include dismissal of his claims in exchange for whatever consideration he accepted from the defendants in settlement.

6. The mediation process was successful. The parties agreed to settle the case on terms described in Exhibit B - a handwritten Memorandum of Understanding (MOU) dated November 16, 2010.

7. Attorney Vogelman explained the proposed settlement terms to Gosselin before Gosselin voluntarily signed the Memorandum of Understanding (Exhibit B). Gosselin signed the MOU with knowledge that he was thereby evidencing his agreement to settle the case on those terms, and he fully understood that the pending litigation would be over - his claims would be dismissed in exchange for the consideration to be provided by the defendants.

8. A more formal document memorializing the settlement was to be prepared and, if Attorney Vogelman found that document to be consistent with the agreed-upon terms, Gosselin was expected to sign it. That more formal agreement was produced and Attorney Vogelman found it to be consistent and acceptable, but Gosselin refused to sign it.

9. Attorney Vogelman also agreed to settle Gosselin's case, on Gosselin's behalf, on the terms set out in the MOU. In doing so, Attorney Vogelman acted within the scope of his representation of Gosselin, and with Gosselin's authorization. Gosselin well knew the terms and effect of the settlement, and well knew that Attorney Vogelman was acting on his behalf in agreeing to the settlement terms. Gosselin was aware that Attorney Vogelman agreed to and signed the MOU, yet he raised no objection or protest, and gave no indication to anyone that Attorney Vogelman was not authorized to settle the case on his behalf.

10. Neither Attorney Vogelman nor the mediator, Attorney Mulvey, nor any other person, coerced, or harassed, or misled Gosselin in any respect with regard to the terms of the settlement, or the effect of his agreement to settle on the terms described in ...


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