Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KOVACHERICK J. ARNOLD,

Plaintiff,

vs. Case No. 4:10cv204-WS/WCS

FLORIDA DEPARTMENT 

OF CORRECTIONS,

Defendants.

 /

REPORT AND RECOMMENDATION

District Judge Stafford referred Plaintiff's pro se motion to reopen the case

(vacate the judgment), doc. 56, for a hearing and a report and recommendation. Doc.

56. Plaintiff's former attorney, Gary Printy, was permitted to withdraw. Doc. 61. The

hearing was held on September 23, 2011. Doc. 66. Marie Mattox entered an

appearance on behalf of Plaintiff at the hearing. A transcript of the hearing has been

filed. Doc. 67. The parties have filed memoranda. Docs. 69 and 73.

Findings of fact

On about April 25, 2011, Plaintiff had a pain in his chest. Doc. 67, p. 4; doc. 56,

pp. 12 and 17 on ECF. He had had three prior heart attacks. Doc. 67, p. 4. He went

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 1 of 8
Page 2 of 8

to the emergency room and was admitted. Id. He was taken into surgery that morning

and had cardiac catheterization on April 25, 2011. Id., p. 5. He had previously had

stents placed in his cardiac arteries, and the catheterization procedure was to check on

the stents, look for blockage, and replace stents if necessary. Id., pp. 5-6.

Plaintiff was given Percocet,1

 325 mg, to take as needed for pain. Doc. 56, p. 7

on ECF. He was also given promethazine hydrochloride tablets (Phenergan).2

 Id., p. 4. 

Plaintiff testified that while at the hospital, he had a patch on his chest for the release of

pain medication as needed. Doc. 67, p. 8.

Plaintiff was discharged at about 3:30 p.m. on April 26, 2011. Doc. 56, p. 12. 

Plaintiff was told to follow the post cardiac catheterization discharge instructions. Doc.

62, p. 6. Those instructions advised that the medication he had received that day might

cause dizziness, drowsiness, or loss of balance. Id., p. 3. He was advised not to make

any "important decisions" that day (April 26, 2011) "such as financial or legal." Id. He

was advised to have "someone stay with you for the next 24 hours." Id. He was not to

drive or operate hazardous machinery for 48 hours. Id. He could use an automatic

transmission after 48 hours. Id. 

Plaintiff testified that on the morning of April 26th, the day he was discharged

from the hospital, he told his attorney, Gary Printy, that he had had a cardiac

 1 Percocet, a narcotic analgesic, is used to treat moderate to moderately severe

pain. It contains two drugs – acetaminophen and oxycodone. Acetaminophen is used

to reduce both pain and fever. Oxycodone, a narcotic analgesic, is used for its calming

effect and for pain. PDRhealthTM, PHYSICIANS' DESKTOP REFERENCE, found at

http://www.pdrhealth.com/drugs/drugs-index.aspx.

 2

 Phenergan is an antihistamine and is also used for motion sickness and nausea

after surgery. See http://www.drugs.com/phenergan.html.

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 2 of 8
Page 3 of 8

catheterization procedure the day before. Doc. 67, p. 16. Plaintiff testified that Mr.

Printy told him that the mediation was already scheduled for April 27, 2011, that fees

would have to be paid if the mediation was cancelled, and Plaintiff told Mr. Printy that he

would "try to make it there the best I could." Id., pp. 6-7. 

Mr. Printy drove Plaintiff to the mediation. Id., p. 9. Plaintiff said that he seemed

to be okay, "kind of fair," when the mediation began. Id., pp. 7, 9. The mediation lasted

all day. Id., pp. 9-10. As the day wore on, Plaintiff began to feel tingling and became

uncomfortable and agitated. Id. He said that by noon, his arms and legs were in pain,

he had numbness, and nausea. Id., p. 10. He said he thought he would have to return

to the hospital. Id., p. 23. Plaintiff said that he told Mr. Printy several times that he

needed to stop, that he did not know what was occurring, and he needed Mr. Printy to

drive him home. Id., pp. 10-11. He said he told Mr. Printy several times, "I'm ready to

go." Id., p. 23. Mr. Printy's response was: "Let's wait around a little while longer, see

what's going to happen." Id., p. 11. Plaintiff testified that he did not understand what

was happening during the last half of mediation. Id. Plaintiff said that when he was

presented with the mediation settlement document, he thought that they had reached an

impasse and that he was going to court. Id., p. 13.

Plaintiff did not testify that he was taking pain medication on the day of the

mediation. When asked what medications he was using at the time of mediation, he

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 3 of 8
Page 4 of 8

said he had taken his "normal, Plavix,[3] Crestor.[4]" Id., p. 8. He then mention a

morphine patch that was given to him before his was discharged, but I find that he was

talking about a morphine patch that was given to him while he was still in the hospital. 

Id. 

Plaintiff did not tell Gary Anton, the mediator, that he was not feeling well enough

to continue. Doc. 67, p. 18. Mr. Anton testified that Plaintiff appeared to be alert

enough during mediation, and that Plaintiff specifically asked that the settlement contain

a provision that would change his status with the Florida Department of Law

Enforcement. Id., pp. 33, 35-36. Mr. Anton said that had he known that Plaintiff had a

medical condition, was not feeling well, or had had cardiac catheterization the day

before, that would have "raised a red flag" and he would have carefully inquired as to

Plaintiff's capacity to engage in mediation. Id., pp. 27-28. Mr. Anton said that nothing

that Plaintiff did caused him to be concerned. Id., p. 33. He said that Plaintiff appeared

to him to be frustrated with the offers made in mediation, and "not real happy," but that

is normal. He said that Plaintiff appeared to be "resigned." Id., p. 33.

It is undisputed that Defendant did nothing to subject Plaintiff to duress or unfair

coercion during the mediation, and did not know that Plaintiff had had the cardiac

catheterization procedure the day before. 

 3 Plavix is a blood thinner used to treat people who have recently had a heart attack,

stroke, disease of the arteries. PDRhealthTM, PHYSICIANS' DESKTOP REFERENCE, found

at http://www.pdrhealth.com/drugs/drugs-index.aspx.

 4

 Crestor is in a class of drugs called "statins," which are used to lower cholesterol

levels when a low-fat diet has failed to work. PDRhealthTM, PHYSICIANS' DESKTOP

REFERENCE, supra. 

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 4 of 8
Page 5 of 8

Plaintiff's demeanor at the hearing was calm and not overtly demonstrative. Had

Plaintiff been feeling unwell at my hearing, it would have been hard for me to tell, given

his quiet demeanor. Thus, it is credible that the mediator and Defendant did not know

that Plaintiff was not feeling well during the latter half of the mediation.

Legal analysis

Settlements are governed by the rules for interpretation of contracts. Robbie v.

City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985). However, settlements "are highly

favored and will be enforced whenever possible." Id.

The issue before the court is whether this settlement should be set aside due to

duress or due to Plaintiff's incompetence to enter into a contract at the mediation. A

contract may be set aside if it was reached under fraud, deceit, duress, coercion,

misrepresentation, or overreaching. Casto v. Casto, 508 So.2d 330, 333 (Fla. 1987)

(marital agreement). Duress is:

A condition of mind produced by an improper external pressure or

influence that practically destroys the free agency of a party and causes

him to do and act or make a contract not of his own volition.

T.G. v. Department of Children and Families, 9 So. 3d 48, 48 (Fla. 4th DCA 2009), citing

Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928). In order to prove duress,

it must be shown (a) that the act sought to be set aside was effected

involuntarily and thus not as an exercise of free choice or will and (b) that

this condition of mind was caused by some improper and coercive conduct

of the opposite side.

Id., quotations and citation omitted, emphasis added.5 

 5 An example of the application of the coercion and duress rule is Crupi v. Crupi, 784

So. 2d 611 (Fla. 5th DCA 2001), relied upon by Defendant. In that domestic relations

case, the court found no coercion or duress, holding: "We agree with the trial court's

finding that three Xanax pills, and anxiety and pressure to settle are insufficient proof of

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 5 of 8
Page 6 of 8

Plaintiff has not shown duress as so defined. Defendant did nothing to subject

Plaintiff to duress. Defendant was unaware of Plaintiff's medical condition. 

A person has sufficient mental capacity to enter into a contract if he or she

comprehends the essential elements of the matter to be agreed upon. Cf., Hodges v.

Atlantic Nat. Bank of Jacksonville, 134 Fla. 702, 713, 184 So. 875, 879-880 (Fla. 1938),

citing 28 C.J., Gifts, Sec. 17, pp. 626 ("The general rule is that, if the donor has

sufficient mental capacity to comprehend the transaction, if he understands the extent

and value of his property, what persons are the objects of his bounty, and the manner in

which he is distributing his property among them, his gift will be valid."); Saliba v.

James, 143 Fla. 404, 412, 196 So. 832, 835 (Fla. 1940) (same). "Mere mental

weakness will not authorize a court of equity to set aside a deed if it does not amount to

inability to comprehend the effect and nature of the transaction and is not accompanied

by evidence of imposition or undue influence." Parks v. Harden, 130 So. 2d 626, 628

(Fla. 2d DCA 1961).

Plaintiff did not testify that he had ingested any pain medication that day and he

did not testify that he was confused at mediation due to pain medication. Instead, the

premise of Plaintiff's motion to vacate the judgment is that he was in such pain and ill

health that he could not concentrate and, as a consequence, was legally incompetent to

enter into a contract; that he lacked the mental capacity to understand the essential

elements of the matter before him.

coercion necessary to set aside such an agreement. Otherwise, few, if any, mediated

settlement agreements would be enforceable." 784 So. 2d at 614 (emphasis added).

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 6 of 8
Page 7 of 8

While it is plain that Plaintiff was in ill health and should not have been attempting

to mediate his case that day, I must conclude that Plaintiff has not shown mental

incompetence sufficient to set aside the agreement as defined by Florida law. The

terms of the agreement he signed are rather simple. Defendant was to pay Plaintiff

$10,000,6

 the money was to be held in Mr. Printy's trust account, Mr. Printy was not to

disburse the money until a final settlement agreement was executed, Defendant was to

give a neutral reference, the record was to be changed to a resignation, and Defendant

would notify the Florida Department of Law Enforcement that Plaintiff left by resignation

rather than termination. Doc. 52-1, pp. 1-2. Plaintiff could have informed the mediator

that he was not able to comprehend the process and could have asked to continue the

process until he felt better, but, on advice of his lawyer, did not. Plaintiff has not shown

that he lacked mental competence to understand the basic elements of this transaction.

Accordingly, it is RECOMMENDED that the court DENY Plaintiff's motion to

vacate the judgment, doc. 56.

IN CHAMBERS at Tallahassee, Florida, on October 21, 2010.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

 6 The way in which the $10,000 was to be disbursed is not clear. Paragraph 1 of the

agreement signed by Plaintiff states that Defendant will pay Plaintiff $10,000 by check

to the trust account of Mr. Printy. Doc. 52-1, p. 1. The draft of the formal settlement

states that there is no payment of pay or compensatory damages to Plaintiff, and the

entire $10,000 is payable to Mr. Printy as his fee. Id., pp. 2-3, ¶¶ 2-5. But that lack of

clarity is between Plaintiff and Mr. Printy, not between Plaintiff and Defendant.

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 7 of 8
Page 8 of 8

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No. 4:10cv204-WS/WCS

Case 4:10-cv-00204-WS-WCS Document 74 Filed 10/21/11 Page 8 of 8