                            STATE OF MICHIGAN

                             COURT OF APPEALS



JOSEPH HUTCHINS,                                                    UNPUBLISHED
                                                                    September 25, 2018
                 Plaintiff-Appellee,

v                                                                   No. 339213
                                                                    Genesee Circuit Court
HOLLY AREA SCHOOLS, DAVID NUSS, and                                 LC No. 2017-108800-CZ
PEGGY KREAMER,

                 Defendants-Appellants.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

        Plaintiff sued defendants under the Whistleblower’s Protection Act (WPA), MCL 15.362
et seq., for wrongful discharge. Defendants moved for summary disposition because the parties
had previously entered a settlement agreement and release and plaintiff had not before filing his
lawsuit tendered to defendant Holly Area Schools (the district) the consideration recited in the
agreement as required by Stefanac v Cranbrook Educational Community (After Remand), 435
Mich 155; 458 NW2d 56 (1990). The trial court denied defendant’s motion “with prejudice” by
order entered June 22, 2017. This Court granted defendants’ application for leave to appeal and
also stayed proceedings in the lower court “pending resolution of this appeal or further order of
this Court.”1 We reverse and remand for entry of summary disposition in favor of defendants.

                              I. SUMMARY OF PERTINENT FACTS

       On January 30, 2017, plaintiff Joseph Hutchins, defendant Holly Area Schools, and the
Holly Education Association, MEA/NEA2, entered a settlement agreement and release to
memorialize the terms and conditions of the separation of plaintiff, a tenured teacher, from his
employment with the school district. Plaintiff’s signed letter of resignation dated January 30,
2017, effective March 31, 2017, was attached to the agreement. Paragraph 2 of the settlement
agreement and release recites its consideration as follows:


1
 Hutchins v Holly Area Schools, unpublished order of the Court of Appeals, entered August 16,
2017 (Docket No. 339213).
2
    The president of the teachers union signed the agreement on January 31, 2017.


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                The Employee [plaintiff] will receive his salary through March 31, 2017,
       subject to state and federal tax withholding. The Employee shall remain on paid
       administrative leave. The District further agrees to continue the Employee’s
       health insurance to June 30, 2017, consistent with the provisions of the Collective
       Bargaining Agreement.          The Employee shall make insurance premium
       contributions by the first of each month. Failure to make such contributions shall
       result in the Board’s ceasing insurance coverage. If the employee is employed in
       a professional capacity which provides health insurance, the district shall have no
       further obligation to continue such insurance. The Employee shall notify the
       district within ten (10) days of such employment.

         Thus, the consideration for plaintiff’s entering the release agreement included his
remaining on paid administrative leave, receiving his salary through March 31, 2017, and also
the district’s providing health insurance benefits (with plaintiff’s contribution in accordance
with the teachers’ union contract) through June 30, 2017. Also, the settlement agreement and
release provided that “upon receipt of an employee reference request,” defendant district would
“provide a neutral letter reflecting the positions held and dates of service.” The settlement
agreement also provided that when required by a request made pursuant to MCL 380.1230b, the
district “shall disclose that unprofessional conduct occurred by use of excessive force . . . .” The
terms of this potential disclosure were set forth in an attachment that read: “At the time of Mr.
Hutchins resignation, there was an ongoing investigation regarding the use of excessive force.
The investigation was not completed.”

        Paragraph 7 of the settlement agreement and release contained plaintiff’s very broad
“discharge and release” of defendant district and its employees or agents from “any and all
claims, complaints, charges, demands, grievances, claims for arbitration, and/or other causes of
action (pending or contemplated) of any kind which [plaintiff] currently has or may claim to
have against any of the above . . . .” The release specifically extended to claims or grievances
for “breach of contract, wrongful discharge, constructive discharge, violation of constitutional
rights, discrimination with respect to disability, age, sex, religion, race, national origin, veteran’s
status and/or marital status which may have arisen under the Federal Civil Rights Acts, the
American’s with Disabilities Act, . . . the Michigan Elliott-Larsen Civil Rights Act, . . .
Whistleblowers Protection Act, retaliation, and other pertinent state and federal statutes.”
Further, the release pertained to any “kind of contractual, legal or equitable claim arising during
and from [plaintiff’s] employment and/or resignation and separation from employment . . .
including (but not limited to) any and all of the circumstances leading to his resignation and
separation pursuant to the terms” of the settlement agreement and release.

        Paragraph 9 of the settlement agreement and release states that plaintiff acknowledged
that he had been given up to 21 days to consider the terms of the agreement before accepting and
signing it, that he had the opportunity to consult with legal counsel of his own choosing, and that
he was provided a period of 7 days following his execution of the agreement within which to
revoke it. Paragraph 12 of the settlement agreement and release states that plaintiff
acknowledges that he consulted with his union representatives, reiterates that he had an
opportunity to consult with legal counsel of his choice, and that his resignation and execution of
the settlement agreement and release were voluntary and done with full knowledge of the
consequences. Paragraph 14 recites that plaintiff “represents and acknowledges that before

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signing this release he read the same, fully understands its terms, content and effect and has
relied fully and completely on his own judgment in executing this release.”

        All parties apparently complied with the terms of the settlement agreement and release
until March 21, 2017, when plaintiff filed his complaint against defendants alleging claims for
violation of the WPA and for breach of public policy. Plaintiff alleged that defendants “forced
him to either (1) resign from [his teaching position with defendant district] or (2) be forced to
have a record of harming a student . . . .” Before filing his lawsuit, plaintiff did not return to
defendant district any of the consideration recited in the release—payments of his salary or
defendant district’s share of his insurance premiums. Plaintiff also did not seek to rescind the
settlement agreement and release, or did he even mention it in his complaint.

        In response to plaintiff’s complaint, defendants moved for summary disposition under
MCR 2.116(C)(7) and (8). Defendants asserted that plaintiff’s claims were barred by the plain
language of the settlement agreement and release. More specifically, defendants argued that
plaintiff had not pleaded any reason the release should be determined invalid and argued that
plaintiff was legally estopped from challenging the validity of the release because he had not
tendered back to defendant district the consideration it paid plaintiff as required by Stefanac.

        Plaintiff responded to the motion alleging that defendants obtained the settlement and
waiver from him through coercion, duress, and overreaching by threatening him with criminal
charges and loss of his pension. Plaintiff also argued that he was ready and willing to tender
back the consideration defendant paid him but could not do so because defendants had not told
him the exact amount due. Plaintiff stated in an affidavit that his union representative advised
him that unless he resigned, he could be subject to a criminal prosecution and lose his pension.
Plaintiff also stated that defendants’ threats created duress and forced him to sign the release.

        At the conclusion of counsels’ oral arguments on defendants’ motion, the trial court
accepted plaintiff’s argument that he did not have to tender back the consideration received
under the settlement agreement and release where defendants failed to specify the exact amount
of the consideration plaintiff needed to repay. The trial court reasoned that “Stefanac is saying
that [defendants are required] to look at [plaintiff] and say, you owe us “x” amount of money for
the health benefits, “x” amount of money for the pay up to a certain date, and you must pay that
if you want to repudiate the release, and I don’t see where that happened.” The trial court also
ruled that it was “denying with prejudice the Stefanac argument about the tendering because I
don’t understand that the school board recited any consideration.”

       After the trial court’s ruling from the bench, defense counsel orally moved the court to
stay proceedings pending the filing of an application for leave to appeal, which the trial court
denied. The trial court entered its written order on June 22, 2017, denying defendants’ motion
for summary disposition in accordance with its rulings from the bench and also denying a stay of
proceedings. As noted already, this Court granted defendants’ application for leave to appeal
and also stayed proceedings in the lower court by order entered August 16, 2017.

                                 II. STANDARD OF REVIEW




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        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition under
MCR 2.116(C)(7) asserts that a claim is barred by immunity granted by law and need not be
supported or opposed by affidavits, depositions, admissions, or other documentary evidence. By
Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 25-26; 703 NW2d 822 (2005). The
allegations of the complaint are accepted as true unless contradicted by documentary evidence.
Maiden, 461 Mich at 119. The motion is properly granted when the undisputed facts establish
the moving party is entitled to immunity granted by law. Kincaid v Cardwell, 300 Mich App
513, 522-523; 834 NW2d 122 (2013); By Lo Oil Co, 267 Mich App at 26.

       The interpretation of clear contractual language is an issue of law also reviewed de novo
on appeal. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003).

                                        III. ANALYSIS

        A party that has knowingly signed a settlement agreement and release of liability may not
sue in contravention of the agreement or challenge the agreement unless before or
simultaneously with doing so the party tenders the consideration recited in the agreement, or
unless tender is waived by the party released. See Stefanac, 435 Mich at 159, 164-165, 176;
Rinke v Automotive Moulding Co, 226 Mich App 432, 436, 573 NW2d 344 (1997)(“[A] plaintiff
must tender before he may even attempt to repudiate the release.”). In this case, the trial court
erred by denying defendants’ motion for summary disposition because plaintiff did not tender to
defendant district the consideration recited in the settlement agreement and release before or
simultaneously with the filing of his lawsuit. Consequently, by its plain terms, the release bars
plaintiff’s legal claims against defendants and his equitable claims to rescind the settlement
agreement. Stefanac, 435 Mich at 171-172; Dresden v Detroit Macomb Hosp Corp, 218 Mich
App 292, 297; 553 NW2d 387 (1997).

         There are two and only two recognized exceptions to the tender-back rule as a
precondition to suing in contravention of a release. “Under Michigan law, a plaintiff is excused
from the tender-back requirement only if the defendant waives the duty or the plaintiff
demonstrates fraud in the execution.” Collucci v Eklund, 240 Mich App 654, 659; 613 NW2d
402 (2000)(emphasis added). “The only recognized exceptions in Michigan are a waiver of the
plaintiff’s duty by the defendant and fraud in the execution.” Stefanac, 435 Mich at 165
(emphasis added). Defendants did not waive the tender requirement; they filed a timely motion
for summary disposition based on its terms and the failure of plaintiff to tender to defendant
district the consideration recited in the agreement (salary and the cost of insurance benefits).

         The only other exception to the tender requirement as a condition for suing in
contravention of the release or challenging the release is fraud in the execution. Stefanac, 435
Mich at 165; Collucci, 240 Mich App at 659. “ ‘Fraud in the execution’ or factum means the
proponent of the instrument told the signatory thereof that the instrument really didn’t mean what
it clearly said, and that the signatory relied on this fraud to his detriment.” Paul v Rotman, 50
Mich App 459, 463-464; 213 NW2d 588 (1973). In this case, there is no dispute plaintiff knew
what the documents said when he signed the settlement agreement and release. In his answer to
defendants’ motion for summary disposition and in his affidavit, plaintiff does not assert that he

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signed the settlement agreement and release believing it to be something else. See Stefanac, 435
Mich at 166, quoting Randall v Port Huron, St C & MC R Co, 215 Mich 413, 420, 424; 184 NW
435 (1921). While plaintiff alleges he resigned his teaching position and signed the settlement
agreement and release because he felt coerced and under duress because of the dire consequences
he faced—being fired, losing his pension, and possibly even criminal prosecution—there is no
evidence that he did not know what he was signing.

        Indeed, by signing the release, plaintiff stated that he had ample time to review and
understand the content of the agreement. Plaintiff acknowledged that he had been given up to 21
days to consider the terms of the agreement before accepting and signing it, that he had the
opportunity to consult with legal counsel of his own choosing, and that he was provided a period
of 7 days following his execution within which to revoke the agreement. In paragraph 12 of the
settlement agreement and release, plaintiff acknowledges and reiterates that he had an
opportunity to consult with legal counsel of his choice and that his resignation and execution of
the settlement agreement and release were voluntary and done with full knowledge of the
consequences. Paragraph 14 of the release recites that plaintiff “represents and acknowledges
that before signing this release he read the same, fully understands its terms, content and effect
and has relied fully and completely on his own judgment in executing this release.”

        There is absolutely no evidence to rebut “the presumption that . . . plaintiff executed the
release knowingly and that the recited consideration was received.” Stefanac, 435 Mich at 164-
165; see also Collucci, 240 Mich App at 659 (applying the tender-back rule where there was no
evidence that the plaintiff did not know that he was signing a release). The consideration recited
in the settlement agreement and release was salary and insurance benefits. This Court has
applied the tender-back rule in other cases where the consideration recited in a release is
payment of salary, or provision of other benefits, like insurance coverage. See Collucci, 240
Mich App at 656 (“a year’s salary . . . accrued vacation time, and continue certain employee
benefits emphasis”); see also See Davis v Bronson Methodist Hosp, 159 Mich App 251, 251; 406
NW2d 201 (1986). Plaintiff cannot attack the release on the basis of duress or coercion because
he “must tender the recited consideration before there is a right to repudiate the release.”
Stefanac, 435 Mich at 165. Because no evidence supports either exception, plaintiff was
required to tender the consideration recited in the settlement agreement and release. Id.

        The trial court erred by creating a new exception to the tender-back rule that requires the
party released from liability to aver in an affidavit the amount of consideration paid for the
release before a plaintiff is obligated to tender consideration recited in the release. The trial
court erroneously converted plaintiff’s obligation to repay consideration “recited in the
agreement” to defendants’ burden to demand of plaintiff that “you owe us ‘X’ amount of
money.” The Stefanac Court held that “a plaintiff must, in all cases where a legal claim is raised
in contravention of an agreement, tender the consideration recited in the agreement prior to or
simultaneously with the filing of suit.” Stefanac, 435 Mich at 176 (emphasis added). Thus, the
trial court’s ruling is directly contrary to the holding of Stefanac, which opined its ruling was
“necessary in order to preserve the stability of release agreements.” Id. at 177. The trial court’s
ruling would create the very grace period that the Stefanac Court rejected because it would allow
a plaintiff to retain the benefit of settlement agreement while at the same time bringing suit in
contravention of the release contained in the agreement. Id. The Stefanac Court made clear that
the beneficiaries of a release need not take affirmative steps to enjoy its protection “because until

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plaintiff tenders the consideration recited in the release, it is the existence of the release and its
terms which prohibit the plaintiff from bringing suit.” Stefanac, 435 Mich at 169 n 15.

        Moreover, plaintiff’s claim that he did not know the amount of consideration to tender
defendant district is disingenuous. Clearly, plaintiff would be aware of the salary that he
received from defendant district pursuant to the settlement agreement and release simply by
reviewing his pay stubs or deposits to his bank account. The cost of the school district’s share of
plaintiff’s health insurance premiums could also easily be calculated or discovered. At oral
argument on the motion for summary disposition, plaintiff’s counsel admitted that as a public
employee, plaintiff received annual statements indicating the value of his various employee
benefits. Also, review of plaintiff’s previous years’ W-2 would have provided an amount to
calculate the monthly cost of plaintiff’s health insurance.3 For a more accurate assessment of the
cost involved, plaintiff could have simply contacted the school district’s accounting department.
Thus, there was no factual impediment to plaintiff complying with the tender-back rule, and no
legal excuse. “Plaintiff has not raised either exception and thus is not relieved of the duty to
tender the consideration recited in the release.” Stefanac, 435 Mich at 165. Plaintiff may not
retain the benefit of an agreement and at the same time take action in contravention of the
agreement. Id. at 177. Consequently, the trial court should have granted summary disposition to
defendants.

        Plaintiff also argues that the trial court properly denied defendants’ motion for summary
disposition because the motion was premature. According to plaintiff, discovery should be
completed, and plaintiff should then have the opportunity to amend his pleadings. See MCR
2.118. Plaintiff’s vague argument that he should be permitted to amend his complaint is without
merit. This Court has already rejected use of the amendment procedure and the relation-back
provision of MCR 2.118(D) to save a plaintiff from failing to comply with the tender-back rule
before filing a lawsuit in contravention of the terms of a release. See Rinke, 226 Mich App at
437 (“We hold that plaintiffs may not use the relation-back doctrine to create the kind of ‘grace
period’ disallowed in Stefanac.”); see also Collucci, 240 Mich App at 661 n 3(“[T]his Court has
previously held that a plaintiff’s attempt to tender back consideration, when made in an amended
complaint challenging the release, does not relate back to the date of the original complaint.”)
Consequently, plaintiff’s argument fails.

        The main goal of contract interpretation is to enforce the parties’ intent. Burkhardt v
Bailey, 260 Mich App 636, 656; 680 NW2d 453 (2004). The words of a contract are interpreted
according to their plain meaning. Schroeder v Terra Energy, Ltd, 223 Mich App 176, 182; 565
NW2d 887 (1997). When the words of a contract are clear and unambiguous, the contract must
be enforced according to its terms. Burkhardt, 260 Mich App at 656.

       In this case, for the recited consideration, plaintiff and defendant district entered into a
settlement agreement and release, which included a broad discharge and release of liability in
favor of the school district, its board, board members, administrators, employees or agents from
any and all claims, complaints, charges, demands, grievances, claims for arbitration, and other


3
    An employer’s cost of providing health insurance is listed on a W-2 for under box 12, code DD.


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causes of action, including for breach of contract, wrongful discharge, constructive discharge,
violation of constitutional rights, Whistleblowers Protection Act, retaliation, and any action
under state or federal statutes. The “discharge and release” extended to any “kind of contractual,
legal or equitable claim arising during and from [plaintiff’s] employment and/or resignation and
separation from employment with” the school district. Furthermore, plaintiff agreed “not to file,
institute or pursue any such litigation and/or proceedings.” The settlement agreement and release
plainly barred plaintiff’s complaint. The terms of the settlement agreement and release must be
enforced as written. Stefanac, 435 Mich at 177-178; Burkhardt, 260 Mich App at 656.

        We reverse and remand for entry of summary disposition in favor of defendants. We do
not retain jurisdiction. As the prevailing parties, defendants may tax their costs. MCR 7.219.

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood




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