BK&M makes offer to plaintiffs: Keep mum and avoid lawsuit for abuse of process, malicious litigation

A group of University Heights neighborhood residents were given until noon today to agree to keep mum about a proposed commercial development or face litigation. 

The residents, who were the plaintiffs and intervenors in a case decided June 14 by Judge Derek Ankrom, declined. Additionally, a representative of the group said in a text to Springfield Business Journal they would be appealing the ruling. 

The residents were sent a letter – marked confidential  –  from BK&M LLC attorney Bryan Fisher, a partner with law firm Neale & Newman LLP. SBJ was provided with a copy of the letter by a University Heights resident this morning. The resident required anonymity. 

The case, Dixie Sleight et al. v. BK&M LLC, sought to enforce restrictive covenants that appeared on some deeds within the neighborhood on the basis that the covenants would disallow commercial development. BK&M seeks to build a commercial enterprise on the corner of Sunshine Street and National Avenue, which has been determined to be the city’s second most trafficked intersection. The case was brought by 12 plaintiffs and two intervenors. The judge ruled in favor of defendant BK&M, in part because deed restrictions were not uniformly applied or upheld in the neighborhood. 

In his letter, Fisher makes what he calls a one-time settlement offer. 

“In exchange for a written waiver of any right to appeal or seek relief from the judgment, BK&M LLC will waive its right to pursue an action against plaintiffs and intervenors for abuse of process, and in light of the judgment, malicious prosecution,” the letter states. 

Fisher writes that his client would prefer to resolve all disputes with the plaintiffs and intervenors. 

He adds that to avoid litigation, the plaintiffs and intervenors must not communicate with members of two governmental bodies: the Planning and Zoning Commission and Springfield City Council. 

“The offer is also contingent on all plaintiffs and intervenors further agreeing to refrain from participation in any future rezoning hearings concerning the subject property, including, but not limited to, submission of written comments, public posts, communications with City Council members or Planning and Zoning commissioners, participation in any way in any referendum petition efforts, etc.” 

The letter adds that all plaintiffs and intervenors must agree to the terms, and states that BK&M will not separately negotiate and settle its claims. 

Fisher writes that if BK&M files suit, it will seek a judgment of $60,000 plus all costs and attorneys’ fees incurred by BK&M.  

In an email today to Springfield Business Journal, Bryan Wade, managing partner with Husch Blackwell LLP and attorney for the plaintiffs, said his clients would not be accepting the offer. 

“My clients reject the offer, which isn’t really an offer, but rather an attempt to intimidate and bully them into refraining from exercising their legal rights,” he writes. 

Plaintiff Sue Robinson provided this statement to SBJ on behalf of the plaintiffs: 

“Members of the University Heights Preservation Group and plaintiffs in the deed restriction lawsuit are disappointed and dismayed by the June 14 judgment. We reject the so-called ‘settlement offer’ from ‘Be Kind and Merciful’ [BK&M LLC], and view it as an attempt to threaten and intimidate the ‘Sleight Plaintiffs.’” 

Plaintiffs to appeal 
Robinson also revealed that the plaintiff group plans to appeal Judge Ankrom’s decision. 

She writes, “We will appeal the decision and continue to work together with our neighbors and the University Heights Neighborhood Association with our fight to preserve and protect our over 100-year-old historic residential neighborhood from commercial development.” 

Mark Fletcher, representing himself and his wife Courtney as the case’s two intervenors – litigants who joined the case against BK&M independently, rather than as part of the plaintiff group – declined to comment, except to verify that he had received the letter. 

Asked for the University Heights Neighborhood Association’s reaction to the letter, Rina Edge, vice president, responded by email. 

“It would be difficult to comment on the letter without knowing its exact contents, but I am sure the plaintiffs and intervenors will deal with baseless threats appropriately,” she states. 

Fisher responds 
Asked today by SBJ whether the letter he sent to plaintiffs and intervenors might itself constitute abuse of the legal process, Fisher said in an email that it did not. 

“An attempt to settle a dispute fully and finally is not an abuse of process,” he writes. “It would make no sense for my client to agree to waive the claims that have already accrued as a result of the prior actions of the plaintiffs and intervenors without an agreement that they would cease their attempts to interfere with any potential future rezoning.” 

Fisher said his client’s claims for abuse of process and malicious prosecution come from the litigation that Judge Ankrom’s ruling resolved in favor of BK&M. 

“Long before trial, our office placed plaintiffs and intervenors on notice that the facts pled in their respective petitions were false,” he writes. “It was clear that they had not reviewed the title work and underlying deeds from which their claimed causes of action against BK&M accrued.” 

Fisher said the lawsuit was an attempt to interfere with the rezoning process and not for the purpose of seeking relief from the court. 

“Plaintiffs and intervenors knew they could not prevail, but sought to use the court to persuade Planning and Zoning, commissioners and members of City Council to view my client’s application for rezoning unfavorably,” he writes. “In fact, at public hearings, the lawsuit was mentioned as a reason why the Planning and Zoning Commission should not recommend approval of my client’s application. That is an abuse of process.” 

Fisher called his client’s offer a good-faith attempt to resolve claims that were voluntarily dismissed so that trial on the underlying issues could proceed more efficiently. 

“Construing the offer made by BK&M as anything other than a good-faith attempt is twisting the facts to support a narrative that the losing parties would like the media to report,” he writes. “That is especially true given the prior letters sent to our office by the intervenors threatening to use appeals, petitions and the referendum process in an attempt to extort hundreds of thousands of dollars from BK&M prior to the entry of the court’s judgment.” 

Intervenors’ offer 
In a follow-up email to Fisher’s original statement, Fisher’s office sent a copy of correspondence it had allegedly received from intervenors Mark and Courtney Fletcher in April of this year.  

In the correspondence, the Fletchers attempt to sell their property to BK&M. In the first forwarded document, signed by both of the Fletchers, they write that they are willing to sell their residence at 1011 E. University St. and enter into a confidential settlement to release all present and future claims against BK&M in exchange for $840,000. 

“In the absence of an agreement, we have no choice but to continue to protect the value of our home via the present action, and, should it become necessary, via the referendum process and future legal actions,” the Fletchers write. 

Mark Fletcher alone followed up to Fisher with another offer prior to the judge’s decision via an email to Fisher dated June 4. 

In that email, he reduces the offer to $600,000, noting the house was recently appraised for $450,000. 

In the email, Mark Fletcher says that he is the only person in the neighborhood with the willingness, financial resources, knowledge and ability to continue the legal dispute on the enforceability of the deed restrictions. 

“You will note that our neighborhood has not even begun to collect protest petition signatures related to your client’s new zoning application; they have raised no money to finance an appeal of any adverse deed restriction lawsuit, much less pay for the expenses incurred at trial,” the email states. “None of that will happen if I am not involved.” 

He added that he plans to move to Walnut Grove if the matter can be settled. 

In a text today, Mark Fletcher confirmed that he had made the offers. 

“When Ankrom hadn’t ruled by April, it became clear to me the decision would be adverse to the neighborhood,” he writes. “I also suspected the threats like those contained in the letter would be forthcoming. My wife and I wanted to go to Walnut Grove and focus on the things truly important to us. Those emails were my unsuccessful attempt to do so.” 

He adds that he is willing to continue the fight. 

“If BK&M and Neale & Newman want to expand the fight, there will be a vigorous response and we will prevail,” he writes.