On March 20th, 2018, former Playboy Playmate Karen McDougal filed a lawsuit in California regarding a contract she signed which evidently prevents her from speaking about her relationship with President Donald Trump. Can a court “void” a nondisclosure agreement or provision in a contract? And why should Florida probate lawyers care?
- Click here to view a copy of Karen McDougal’s lawsuit.
- In Florida, probate lawsuits are generally required to go to mediation, before going to trial.
- Since a lot of probate cases settle, this is often accomplished with a written contract: often called a settlement agreement or Florida Mediation Agreement or Mediation Settlement Agreement.
- Sometimes, parties to a probate lawsuit that settled their case on one day, then, a couple of days later, get cold feet, or want out of a contract which they signed.
- Can you get out of a probate settlement agreement?
- Well, consider reading the Florida appellate opinion in Pierce v Pierce, 128 So. 3d 204 (Fla. 3rd DCA, 2013) where Florida’s 1st District Court of Appeal tells you what a court will consider if you want to disregard a settlement agreement.
- Consider also reading the Estate of Stern case, from the 3rd DCA in 2015: 2015 WL 5603469.
- So, what does Karen McDougal and Donald Trump have to do with probate settlement agreements? Well……
- Appellate courts are reluctant to re-write contracts and have held repeatedly stated that the freedom to contract includes the right to make a bad deal! See Barakat v. Broward County Housing Auth., 771 So. 2d 1193 (Fla. 4th DCA, 2000 , rehear. den. 12/14/200)
- And, at least in Florida, a party to a contract is assumed to have read it ! See the Addison case 48 So. 3d 951 (Fla. 3rd DCA 2010).
- A party to a Florida contract is bound by the contract that they sign! See the Johnson, Pope case, 67 So.3d 315 (Fla. 2nd DCA, 2011)
- Non-disclosure agreements, and other so called “restrictive covenants,” are incorporated into contracts, and upheld, every day. In the probate context, parties sometimes want a provision which says you want talk “bad” about another party. There may or may not be a confidentiality agreement, which includes non-disclosure provisions. So, a settlement agreement in Florida can be a non-disclosure agreement.
- What’s important for probate lawyers is something to consider when writing and negotiating the contract or settlement agreement: what are the damages or penalties if someone breaks the contract or non-disclosure agreement?
- And, remember, non-disclosure agreements in the employment context should comply with Fla. Stat. ∫ 542.335.
- Indeed, that is the essence of a contract: you get something by giving something. Such “consideration” can include silence or an express written agreement not to say something, talk about, or comment about a particular subject matter. We give up our unrestricted rights or freedoms every day to accept something in its place: such as money.
- The only exceptions are if such contracts or “NDA’s” are somehow against public policy, or the non-disclosure parameters are terribly over-reaching or overly broad.
- But courts are reluctant to re-write contracts: ESPECIALLY when the parties each had their own lawyers. And one party received money.
- Courts don’t like “buyer’s remorse” or “Monday morning quarterbacking.” To permit people to re-write contracts (other than to correct or reform a mistake), or to “get out of” contracts, diminishes our legal process, the essence of a contract, and the seriousness which should be attributed to “doing a deal.” To do otherwise would be to render a contract or promise worthless.
- The Karen McDougal case is unique—she accuses her former lawyer of colluding with the National Enquirer (Defendant American Media). It remains to be seen whether that allegation, alone, will permit a court to “void” the non-disclosure agreement, for which she was paid. But if the allegations about her former attorney are true, that attorney could be the subject of a lawsuit.
- One final note on the McDougal case: in Florida, there is an implied duty of good faith and fair dealing in every contract. If either party is not acting “fairly”, that may be a way to “get out of” a contract if you can demonstrate that a particular “breach” or wrong, occurred.