What happens when the scotch is poured before the mediated settlement agreement is signed? Apparently, nothing good.

Our story begins with Asyntria, a for-profit company that provides training and accreditation to pharmacy technicians.  Asyntria was founded and owned by Wendy Meigs, her then-husband, Jody Meigs, and Michael Johnston.  Management disputes arose between the three, and martial problems arose between Wendy and Jody.

Wendy filed a petition for divorce against Jody. In her petition, Wendy asserted shareholder oppression claims against Jody and Michael, alleging the two had conspired to dilute her shares of Asyntria. Wendy’ divorce attorney referred Wendy to Todd Zucker as separate counsel for the shareholder oppression claims.  The court ordered all the claims be mediated.

The mediation of the shareholder oppression claim lasted from roughly 10:00 am until 10:30 pm. Around 5:00 pm, Wendy and Michael each poured themselves a scotch. Wendy and Zucker disagree when and how much Wendy and Michael drank. Wendy alleges that they immediately began drinking and continued to have additional drinks throughout the mediation. Zucker alleges that the mediator, upon noticing the drinks, asked them to refrain until the end of the mediation and that they complied.

At the end of the mediation, Wendy and Michael signed a settlement agreement. Wendy later told Zucker that she wanted to void the settlement agreement, claiming that during the mediation, Michael had surreptitiously drugged her, rendering her incapacitated at the time the parties signed the agreement. Zucker advised her that any attempt to void the settlement agreement would be risky, expensive, and unlikely to succeed. He further advised Wendy that if she insisted on making that argument, he would move to withdraw as her counsel. Zucker withdrew and Wendy filed a legal malpractice claim against Zucker.

The premise of Wendy’s malpractice claim is that during mediation, Zucker negligently left her alone with Michael, who surreptitiously drugged her by spiking her drink with an unknown substance; then negligently allowed her to continue participating in the mediation despite her obvious incapacity; and ultimately forced her to sign the settlement agreement even though its terms were contrary to Wendy’s desired outcome. Wendy further alleged that Zucker then negligently refused to void the settlement agreement and withdrew.

In the legal malpractice claim against Zucker, the trial court granted Zucker’s no evidence motion for summary judgment, dismissing Wendy’s claims.  The basis of the dismissal, however, was not that the facts did not support a malpractice claim, but instead that Wendy failed to designate experts and missed other deadlines. Wendy’s predicament was particularly acute as she represented herself in the malpractice action and was allegedly unable to find an expert to testify on her behalf.  Given the facts of the case, it is not surprising that Wendy found it challenging to find an expert or even an attorney to prosecute her claims against Zucker.

Last year, the Houston Court of Appeals affirmed the summary judgment and last month, Wendy’s petition for review was denied.

What lesson can we take way from the Meigs case? Wait to pour scotch until after the mediated settlement agreement is signed.  Preferably, until after the settlement is funded and the lawsuit is dismissed.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have about mediation, alternative dispute resolution and, of course, scotch.  Contact us at info@gstexlaw.com with any questions you may have.

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