Custom Homes, LLC v. Westover

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 31, 2020

2020COA178

No. 19CA1724, Tuscany Custom Homes, LLC v. Westover —
Courts and Court Procedure — Mediation — Dispute Resolution
Act — Confidentiality

A division of the court of appeals considers the scope and

application of the statutory protection for mediation

communications, which renders a mediation communication

generally inadmissible in a judicial proceeding. The division

concludes that this protection applies to a mediation

communication as well as to evidence that discloses information

concerning a mediation communication — such as an unsigned,

post-mediation writing offered to prove the existence and terms of

an oral agreement reached during a mediation proceeding. Because

such an unsigned writing is inadmissible, a party cannot prove the

existence or terms of an agreement reached at mediation unless it is
reduced to writing and fully executed or the party can present

other, admissible evidence of the agreement. Because the district

court here erroneously relied on evidence that disclosed mediation

communications when the court found that the parties created an

oral settlement agreement during a mediation proceeding, we

reverse the court’s order and remand for further proceedings.
COLORADO COURT OF APPEALS 2020COA178

Court of Appeals No. 19CA1724
Larimer County District Court No. 18CV30468
Honorable Thomas R. French, Judge

Tuscany Custom Homes, LLC, a Colorado limited liability company,

Plaintiff-Appellee,

v.

John B. Westover; Wolf 359 Investments, LLC; and AIL Fossil Creek, LLC,

Defendants-Appellants,

and

John R. Platenak and Cynthia Platenak,

Third-Party Defendants-Appellees.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE NAVARRO
Tow and Lipinsky, JJ., concur

Announced December 31, 2020

Messner Reeves LLP, Haley W. Maglieri, Katherine Otto, Daniel J. DeLay,
Denver, Colorado, for Plaintiff-Appellee

Johnson Law, Chad W. Johnson, Tessa R. DeVault, Andrew J. King, Denver,
Colorado, for Defendants-Appellants

March & Olive, LLC, Stewart W. Olive, Fort Collins, Colorado, for Third-Party
Defendants-Appellees
¶1 This appeal concerns the scope and application of the

statutory protection for mediation communications, which renders

a mediation communication generally inadmissible in a judicial

proceeding. See § 13-22-307(2)-(3), C.R.S. 2020. Distinguishing

Yaekle v. Andrews, 195 P.3d 1101 (Colo. 2008), in part, we

conclude that this protection applies to a mediation communication

as well as to evidence that discloses information concerning a

mediation communication — such as an unsigned, post-mediation

writing offered to prove the existence and terms of an oral

agreement reached during a mediation proceeding. Because such

an unsigned writing is inadmissible, a party cannot prove the

existence or terms of an agreement reached at mediation unless it is

reduced to writing and fully executed or the party can present

other, admissible evidence of the agreement. Because the district

court here erroneously relied on evidence that disclosed mediation

communications when the court found that the parties created an

oral settlement agreement during a mediation proceeding, we

reverse the court’s order and remand for further proceedings.

1
I. Factual and Procedural History

¶2 Appellants are John B. Westover and two limited liability

companies of which Westover is a member: Wolf 359 Investments,

LLC; and AIL Fossil Creek, LLC (collectively, the Westover

Defendants). The Westover Defendants entered into contracts for

the construction, purchase, and sale of a home in Fort Collins.

Appellee Tuscany Custom Homes, LLC (Tuscany), agreed to

construct the home and sell it to the Westover Defendants, who in

turn would sell the home to appellees John R. and Cynthia

Platenak. Tuscany ultimately sued the Westover Defendants for

breach of contract. The Westover Defendants joined the Platenaks

as third-party defendants.

¶3 The parties went to mediation on March 25, 2019. On that

day, the mediator encountered technical difficulties with his

computer, and the parties concluded the mediation without signing

any document memorializing an agreement. Instead, the mediator

returned to his office and sent the parties the following email (the

mediator’s email):

2
Dear Counsel,

I would like to thank each of you and your
respective clients for your hard work today in
reaching a resolution . . . . The purpose of this
email is to summarize the terms of the
settlement reached today, which summary will
be used to prepare a formal Mutual Release
and Settlement Agreement that is to be
prepared by [Tuscany’s counsel]. The terms of
the settlement are as follows . . . .

¶4 The mediator’s email then listed seven terms detailing the

amounts payable by and to each party under the terms of the

purported settlement. Thereafter, the mediator wrote, “I request

that all counsel review the above and email their assent to the

above terms of settlement.”

¶5 The parties and the mediator exchanged emails over the next

week. In those emails, Tuscany’s counsel and the Platenaks’

counsel said the terms of the mediator’s email were correct, with

minor additions.

¶6 On March 28, Tuscany’s counsel drafted and distributed a

draft agreement (the Draft Agreement) that included the terms from

the mediator’s email and the additions. The Westover Defendants’

counsel responded, “We don’t have any changes. Provided there’s

no redlines, we’ll get our clients to sign.” But, while Tuscany and

3
the Platenaks signed the Draft Agreement, the Westover Defendants

refused to do so.

¶7 In the underlying breach of contract action, Tuscany filed a

motion to enforce a settlement agreement, and the Platenaks joined

that motion. These parties alleged that an oral settlement

agreement was formed in the mediation proceeding on March 25,

2019, and they attached the mediator’s email and the Draft

Agreement as proof of the agreement and its terms.

¶8 In their response, the Westover Defendants denied that an

enforceable agreement existed and attached a proposed agreement

that was identical to the Draft Agreement except that it contained

an additional paragraph (the Westover Draft). That addition

(Paragraph 19) specified that the agreement should not be

construed to preclude the Westover Defendants from asserting

future claims against various nonparties. The Westover Defendants

signed their attached draft, but Tuscany and the Platenaks did not.

¶9 Tuscany and the Platenaks deposed the mediator, who

testified that the parties reached a settlement agreement during the

mediation. He also testified generally that the terms in his email

4
and the subsequent email chain accurately reflected the substance

of that agreement.

¶ 10 The district court held a hearing on the motion to enforce the

settlement agreement. The Westover Defendants’ new counsel

objected that various items of evidence proffered by the other

parties were inadmissible because they revealed confidential

mediation communications. Among the challenged evidence was

the mediator’s deposition testimony (which was read into the

record), the mediator’s email, the email chain following the

mediator’s email, and the Draft Agreement. The court provisionally

admitted the evidence, subject to its review of the supreme court’s

decision in Yaekle.

¶ 11 After the hearing, the district court entered a written order

granting the motion, reasoning in pertinent part as follows:

This Court finds that the objected to
communications in [the mediator’s email] and
[the Draft Agreement] were not made in the
presence of the mediator, were not connected
to specific mediation services proceedings, and
were typical settlement negotiations apart from
the mediator and mediation. Rather, the
communications in [the mediator’s email] and
[the Draft Agreement] were made to express
and confirm already agreed upon terms, to
seek written assent to those previously agreed

5
upon terms, and were typical settlement
negotiations apart from the mediation. The
purpose of [the mediator’s email] to counsel
was to obtain written confirmation of what had
previously been orally agreed to [by] the parties
during the mediation. As such, the Court
finds that [the mediator’s email] and [the Draft
Agreement] do not contain “mediation
communications” under C.R.S. 13-22-302(2.5),
which are confidential under C.R.S. 13-22-
307.

Similarly, the court decided that the mediator’s deposition

testimony was admissible because the mediator’s opinions that

“there was a meeting of the minds between all parties at the

mediation and that the case was settled at the mediation” were “not

communications of what happened at the mediation but were [his]

opinions as to the result of the mediation and the fact that an

agreement was reached.”

¶ 12 Relying on the evidence discussed above, the district court

then found that the parties formed an enforceable oral contract “at

the mediation” and that the terms of that agreement were contained

in the mediator’s email. The court also found that the absence of

the Westover Draft’s Paragraph 19 did not prevent enforceability of

the parties’ contract because the parties had not agreed to

Paragraph 19 at the mediation and Paragraph 19 did not add a

6
material term. The court, therefore, granted the motion to enforce

the agreement. In addition, the court awarded costs and attorney

fees to the Platenaks pursuant to a prevailing-party clause in their

real estate contract with the Westover Defendants.

¶ 13 The Westover Defendants appeal.

II. Settlement Agreement

¶ 14 The Westover Defendants’ challenge to the district court’s

order is two-fold. First, relying on the Dispute Resolution Act (the

Act), sections 13-22-301 to -313, C.R.S. 2020, and on Yaekle, they

contend that much of the evidence presented at the hearing was

inadmissible because it revealed mediation communications.

Second, they argue that, absent the improper evidence, there was

insufficient evidence to prove the existence of an enforceable

agreement. We agree with both points.

A. Standard of Review

¶ 15 We review a district court’s evidentiary rulings for an abuse of

discretion. Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO

47M, ¶ 16. A district court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or if it rests on an

erroneous interpretation of the law. Id.

7
¶ 16 The evidentiary dispute in this case concerns the statutory

protection for mediation communications. See § 13-22-307(2)-(3).

Its scope and application are a question of statutory interpretation

that we review de novo. See McCoy v. People, 2019 CO 44, ¶ 37. In

construing a statute, our primary goal is to give effect to the

legislature’s intent. Id. To do so, we read the statute as a whole,

give words their plain and ordinary meanings, and apply the

ordinary rules of grammar and common usage. Id.

B. The Protection for Mediation Communications

¶ 17 The Act defines a “mediation communication” as “any oral or

written communication prepared or expressed for the purposes of,

in the course of, or pursuant to, any mediation services proceeding

or dispute resolution program proceeding, including, but not limited

to, any memoranda, notes, records, or work product of a mediator,

mediation organization, or party.” § 13-22-302(2.5), C.R.S. 2020.

Excluded from this definition is a final written agreement reached

as a result of a mediation service proceeding or dispute resolution

proceeding, so long as the agreement has been fully executed. Id.

¶ 18 Except as otherwise provided by the Act, “[a]ny party or the

mediator or mediation organization in a mediation service

8
proceeding or a dispute resolution proceeding shall not voluntarily

disclose or through discovery or compulsory process be required to

disclose any information concerning any mediation

communication . . . .” § 13-22-307(2). “Any mediation

communication that is disclosed in violation of [section 13-22-307]

shall not be admitted into evidence in any judicial or administrative

proceeding.” § 13-22-307(3).

¶ 19 The Act permits the parties to present to a court a signed,

written agreement resolving their dispute. § 13-22-308(1), C.R.S.

2020. If the court approves it, the agreement is enforceable as a

court order. Id.

¶ 20 Our supreme court’s Yaekle decision provides the seminal

interpretation of the Act.1 There, the parties reached a partial

settlement agreement during mediation and memorialized its basic

terms in a signed form they called the “September agreement.” 195

P.3d at 1104. The mediator instructed one party to finalize the

details of the settlement in “formal documents.” Id. at 1104, 1110.

1The supreme court consolidated two cases for purposes of its
decision in Yaekle v. Andrews, 195 P.3d 1101 (Colo. 2008). We
discuss the other case, Chotvacs v. Lish, later in this opinion.

9
As instructed, the party drafted documents outlining the terms of

the settlement (the October documents), but the October

documents were not fully executed. Id. at 1110.

¶ 21 Over the next few months, Yaekle and Andrews engaged in

“extensive discussions.” Id. at 1105. After “nine correspondences”

between the parties’ attorneys, Andrews’s attorney acceded to

Yaekle’s terms and sent him a revised agreement containing all the

revisions Yaekle had demanded in the months following the

mediation (the December agreement). Id. Yaekle advised the trial

court overseeing the pending civil suit between the parties that they

had reached a final agreement in December, but he asked for more

time to evaluate it. Yaekle never signed the December agreement.

Andrews moved to enforce that agreement.

¶ 22 Yaekle argued that an enforceable contract did not exist

because section 13-22-308(1), under which parties may submit a

signed written agreement for court approval, provided the “only

process by which parties may form a binding agreement once

mediation has begun.” Id. at 1104. The supreme court rejected

that argument, holding that the Act did not abrogate the common

law of contracts. Therefore, the parties could form a binding

10
settlement agreement without a signed writing even after the parties

had engaged in mediation. Id.

¶ 23 The supreme court then considered the admissibility of the

various documents and communications. The court determined

that the phrase “mediation communication” “does not cover all

communications made with an eye to resolving the dispute once

parties have agreed to mediation. Rather, ‘mediation

communications’ are limited to those made in the presence or at the

behest of the mediator.” Id. at 1109.

¶ 24 Applying that standard, the court held that the September

agreement was excepted from the definition of mediation

communication because it was a fully executed written agreement.

See § 13-22-302(2.5); Yaekle, 195 P.3d at 1110. The October

documents, however, were protected mediation communications

because the mediator instructed the parties to draft them and they

were not fully executed. Yaekle, 195 P.3d at 1110-11. The ensuing

correspondence and the December agreement were typical

post-settlement negotiations that were not protected as mediation

communications. Id. The admissible evidence showed that the

parties “constructed a binding agreement at common law during

11
their negotiations in the months following the mediation session”;

thus, the supreme court held that the December agreement was

enforceable. Id. at 1104 (emphasis added).

C. Analysis

¶ 25 Applying the Act and Yaekle, we conclude that the mediator’s

email and Draft Agreement disclosed mediation communications

and were inadmissible. We further conclude that the remaining

evidence is not sufficient to establish an enforceable agreement.

1. The Mediator’s Email

¶ 26 Turning first to the mediator’s email, the Act specifically

defines “mediation communication” to include any “memoranda” or

“notes” of a mediator. § 13-22-302(2.5). A memorandum includes

“[a] written note or record outlining the terms of a transaction or

contract.” Black’s Law Dictionary 1179 (11th ed. 2019); see H.B.

Zachry Co. v. O’Brien, 378 F.2d 423, 424 n.1 (10th Cir. 1967) (“The

legal definition of memorandum is: ‘A writing, usually informal,

containing the terms of a transaction.’” (quoting Random House,

Dictionary of English Language (unabridged 1966))). The mediator’s

email outlined the terms of a contract allegedly formed during

mediation, and the appellees do not dispute that the mediator

12
drafted the email. The appellees also acknowledge that, at the

mediation, the parties agreed that the mediator would draft the

summary and send it to the parties. Hence, the mediator’s email

was prepared “pursuant to” a “mediation services proceeding.”

§ 13-22-302(2.5).

¶ 27 Still, Tuscany argues that the mediator’s email is “akin” to the

September agreement in Yaekle and thus is not a mediation

communication. As explained, however, the September agreement

was signed by both parties. Yaekle, 195 P.3d at 1110. For that

reason, it satisfied the exception from a mediation communication

for a “final written agreement” that “has been fully executed.”

§ 13-22-302(2.5); see Black’s Law Dictionary 714 (11th ed. 2019)

(“[E]xecute” means “[t]o make (a legal document) valid by signing.”);

see Atkinson v. Estate of Hook, 374 P.3d 215, 219 (Wash. Ct. App.

2016) (same). Because the mediator’s email was not fully executed,

it is similar to the notes at issue in Chotvacs v. Lish, the case

consolidated with Yaekle. There, a party offered the mediator’s

unsigned, handwritten notes outlining the terms of a proposed

settlement reached during mediation. Yaekle, 195 P.3d at 1105.

Because the document was not signed, the supreme court

13
concluded that the document did not satisfy the exception for “final,

written, fully executed agreements” provided in section 13-22-

302(2.5). Id. at 1112. Therefore, the mediator’s notes “remain[ed]

protected as confidential.” Id. The same is true of the mediator’s

email here.

¶ 28 We are not persuaded otherwise by the Platenaks’ assertion

that the mediator’s email is not a mediation communication

because he sent it at the parties’ behest. As noted, the Act’s

definition of “mediation communication” includes memoranda “of a

mediator,” and it does not distinguish between those prepared on

the mediator’s own initiative and those requested by the parties.

See § 13-22-302(2.5). In any event, Yaekle held that a mediation

communication is an oral or written communication that is made at

the mediator’s behest or in the mediator’s presence. Yaekle, 195

P.3d at 1109. The mediator was surely present when he authored

the email pursuant to the mediation services proceeding.

¶ 29 Given all this, we conclude that the mediator’s email is a

confidential mediation communication. The district court,

therefore, erred by admitting it into evidence and considering it as

14
proof of a settlement agreement. See § 13-22-307(3); Yaekle, 195

P.3d at 1112.

2. The Draft Agreement

¶ 30 We next consider whether the district court abused its

discretion by considering the Draft Agreement as evidence of an oral

agreement formed during mediation. Before addressing the merits

of this issue, however, we first reject the Platenaks’ contention that

the doctrines of invited error and judicial estoppel bar the Westover

Defendants from challenging the admission of the Draft Agreement.

a. Invited Error

¶ 31 The doctrine of invited error prevents a party from complaining

on appeal of an error that he or she invited or injected into the case.

People v. Rediger, 2018 CO 32, ¶ 34. The Platenaks argue that,

because the Westover Defendants submitted the Westover Draft in

their pretrial filings and it was identical to the Draft Agreement

except for the addition of Paragraph 19, they “cannot seek to

exclude a document that they themselves placed before the [district]

court.” We disagree.

¶ 32 In context, it appears that the Westover Defendants submitted

the Westover Draft to support one of their two reasons why the

15
appellees could not prove an enforceable agreement. The Westover

Defendants first argued that the evidence offered to prove that

agreement (including the Draft Agreement) was inadmissible. In the

alternative, they argued that Paragraph 19 was a material term

upon which the parties had not yet agreed.

¶ 33 Importantly, however, the Westover Defendants did not urge

the district court to admit the Westover Draft into evidence at the

hearing. Instead, the Platenaks themselves asked the court to take

judicial notice of the Westover Draft, and the court agreed to do so.

But the court’s evidentiary rulings at the hearing were provisional,

pending its review of Yaekle. In its later written order, the court did

not rule that the Westover Draft was admissible, did not rely on it

as evidence of a contract formed during mediation, and mentioned

it only when explaining why Paragraph 19 was not a material term

that must be added to the parties’ agreement reached at the

mediation. At any rate, the Westover Defendants did not inject the

error they assert on appeal.

b. Judicial Estoppel

¶ 34 The Platenaks assert judicial estoppel on identical reasoning

— that is, that the Westover Defendants are estopped from

16
challenging the Draft Agreement’s admissibility because the

Westover Draft is a nearly identical document. We again disagree.

¶ 35 Judicial estoppel is a narrow doctrine that precludes a party

from taking a position in a proceeding that is totally inconsistent

with a position the party took earlier in the same or related

proceeding in an intentional effort to mislead the court. See Arko v.

People, 183 P.3d 555, 560 (Colo. 2008). The doctrine applies only

where the party taking the positions was successful in maintaining

the first position and received some benefit from that position. See

Estate of Burford v. Burford, 935 P.2d 943, 948 (Colo. 1997) (listing

elements of judicial estoppel).

¶ 36 The Westover Defendants did not succeed in their argument

that Paragraph 19 of the Westover Draft was a material term that

needed to be included in the parties’ settlement agreement. So the

Westover Defendants received no benefit from submitting the

Westover Draft. Accordingly, judicial estoppel does not apply here.

c. The Merits

¶ 37 Turning to the merits, the Westover Defendants argue that the

Draft Agreement was an inadmissible mediation communication

because it was made at the mediator’s behest. We agree. We also

17
explain that it was inadmissible even if it had not been made at the

mediator’s behest.

¶ 38 To reiterate, the supreme court in Yaekle clarified that a

statement made in the mediator’s presence or at the mediator’s

behest falls within the ambit of “mediation communication” because

it is a communication made pursuant to a mediation services

proceeding. 195 P.3d at 1109; see § 13-22-302(2.5).

¶ 39 Here, the mediator told the parties that his “summary will be

used to prepare a formal Mutual Release and Settlement Agreement

that is to be prepared by” Tuscany’s counsel. After another party’s

counsel asked about the status of the agreement a few days later,

the mediator asked Tuscany’s counsel for an update. She

responded that she would complete the agreement the next day,

which she did. When she distributed the Draft Agreement, she

included the mediator among the recipients.

¶ 40 So the record indicates that the Draft Agreement was created

at the mediator’s behest. Like the October documents in Yaekle,

therefore, the Draft Agreement constituted a confidential mediation

communication. Yaekle, 195 P.3d at 1110.

18
¶ 41 Even if, however, the mediator did not instruct a party to

prepare the Draft Agreement but, instead, the parties decided on

this procedure at the mediation, our conclusion would not change.2

The appellees contend that the Draft Agreement was simply “meant

to memorialize” the terms to which the parties had agreed at the

mediation. But that is why it was not admissible, even assuming

that the Draft Agreement itself is not a mediation communication

because it was not written in the presence, or at the behest, of the

mediator.

¶ 42 Recall that section 13-22-302(2.5) defines mediation

communication to include “any oral or written communication”

expressed in the course of a mediation services proceeding. The

parties could form an oral agreement during mediation only if they

communicated to one another or the mediator the agreement’s

terms and their mutual assent to those terms during that

proceeding. See Sumerel v. Goodyear Tire & Rubber Co., 232 P.3d

128, 133 (Colo. App. 2009) (discussing elements of a settlement

2The district court did not make a finding on whether the Draft
Agreement was written at the mediator’s behest or the parties’
behest.

19
contract). Under the plain language of section 13-22-302(2.5), the

statements forming the oral agreement allegedly reached during the

mediation here are mediation communications.

¶ 43 Also recall that section 13-22-307(2) provides that a party

“shall not voluntarily disclose . . . any information concerning a

mediation communication.” Yet the appellees offered the Draft

Agreement into evidence for the sole purpose of proving that the

parties orally communicated the terms of a settlement during a

mediation proceeding. An oral statement’s content is information

concerning that statement. Hence, the appellees disclosed

information concerning a mediation communication by offering the

Draft Agreement to prove the terms of an oral agreement reached

during mediation.

¶ 44 That disclosure was prohibited unless an exception applied.

See § 13-22-307(2); Yaekle, 195 P.3d at 1112. The appellees

provided no evidence that an exception, such as written consent to

disclosure from all parties and the mediator, applied. See

§ 13-22-307(2)(a). Thus, the appellees improperly disclosed

information concerning a mediation communication by offering the

Draft Agreement as evidence of an alleged oral settlement

20
agreement even though not all parties had executed the Draft

Agreement.

¶ 45 Contrary to the appellees’ implication, Yaekle does not

command a contrary conclusion. There, Andrews offered

post-mediation documents and communications to prove the

existence of an agreement formed outside a mediation proceeding,

not in one. See Yaekle, 195 P.3d at 1110-11. None of that evidence

was offered to prove what the parties said during mediation because

Andrews sought to enforce the December agreement, which was

formed months after the mediation proceeding and without the

mediator’s assistance. Id. at 1104. At most, the Yaekle court held

that the mere fact that communications touch upon topics that

might have been discussed at mediation is not enough to preclude

their admission into evidence to prove a post-mediation agreement.

See id. at 1110-11 (affirming the trial court’s finding that “the

parties had entered into a subsequent agreement regarding the

dispute’s settlement by way of the December agreement”).

¶ 46 The Yaekle court did not hold that communications made “in

the shadow of mediation” are admissible to prove what happened

during mediation. Id. at 1111. Applying the plain language of the

21
Act in light of its structure, we hold that they are not admissible,

absent an applicable exception.

¶ 47 As discussed, section 13-22-307(3) provides that any

mediation communication disclosed in violation of

section 13-22-307 shall not be admitted into evidence. Under

section 13-22-302(2.5), the only evidence of an agreement reached

as a result of mediation that is excepted from the definition of

mediation communication is a fully executed written agreement.

Such an agreement may be presented to a court and, if approved,

shall be an enforceable court order. § 13-22-308(1). These

provisions work in tandem to ensure that, in general, the only

admissible evidence of an agreement reached during mediation is a

signed written agreement.

¶ 48 In short, forming a contract is not the same as proving one.

“[W]hile common law contract principles are not suspended from

operation during mediation, the evidence of contract formation

during mediation other than final written and fully executed

agreements is generally inadmissible.” Yaekle, 195 P.3d at 1112

(emphasis added). Because such evidence is generally

inadmissible, in the absence of other, admissible evidence, a party

22
cannot prove the existence or terms of an agreement reached at

mediation unless the agreement is reduced to a writing and fully

executed.

¶ 49 The appellees in this case offered the Draft Agreement solely to

disclose, and it did disclose, confidential mediation

communications. Therefore, even if the Draft Agreement was not

written at the mediator’s behest, it was still inadmissible under

section 13-22-307(3) because it documented communications made

in the mediator’s presence at the mediation. In other words,

evidence of a mediation communication can take different forms

(e.g., testimonial, documentary, or audio/visual). Regardless of the

form of the evidence, it is inadmissible under the statute.

Otherwise, a party — after going through a mediation proceeding —

could write down oral communications made during the mediation,

not seek any other party’s written assent to the document, and then

submit the document as evidence of an agreement reached at the

mediation, claiming that it is not a protected mediation

communication because it was not written in the mediator’s

presence or at the mediator’s behest. That would be an absurd

view of the statute, and we reject it. See Mesa Cnty. Land

23
Conservancy, Inc. v. Allen, 2012 COA 95, ¶ 28 (noting that courts

avoid interpreting statutes in a manner that would lead to absurd

results).

¶ 50 Consequently, we conclude that the district court abused its

discretion by admitting the Draft Agreement into evidence.

3. The Remaining Evidence

¶ 51 Having concluded that the mediator’s email and the Draft

Agreement were inadmissible, our final inquiry is whether the

remaining evidence was sufficient to support the district court’s

finding that the parties formed an enforceable contract at the

mediation. See Yaekle, 195 P.3d at 1112. We conclude that it was

not.3

¶ 52 The existence of a contract is a question of fact. Id. at 1111.

As the parties attempting to enforce a contract, Tuscany and the

Platenaks bore the burden to establish its existence. W. Distrib. Co.

v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). To satisfy that

burden, they needed to show by a preponderance of the evidence

3 Because we reverse on this issue, we do not address the Westover
Defendants’ contention that the alleged oral agreement reached at
mediation was unenforceable because it did not address a material
term, Paragraph 19 of the Westover Draft.

24
that the parties not only agreed to all material terms but also that

the terms themselves are sufficiently definite. DiFrancesco v.

Particle Interconnect Corp., 39 P.3d 1243, 1248 (Colo. App. 2001).

We will defer to a district court’s determination that a contract

exists if competent evidence in the record supports that finding.

Yaekle, 195 P.3d at 1111.

¶ 53 Putting aside the mediator’s email and the Draft Agreement,

the admitted evidence was (1) a transcript of the mediator’s

deposition testimony; (2) the hearing testimony of the parties and

their attorneys; and (3) the email correspondence following the

mediator’s email.4 But neither the mediator in the deposition nor

the witnesses at the hearing testified to the agreement’s terms

except by general reference to the mediator’s email and the Draft

Agreement. Likewise, the correspondence that followed the

mediator’s email contains no independent evidence of the purported

agreement’s terms without reference to the mediator’s email.

4 Because the Westover Defendants on appeal do not challenge the
admissibility of the mediator’s deposition testimony, we express no
opinion on whether that testimony, or the other witnesses’
testimony about what happened in the mediation, was admissible.
For the sake of our analysis only, we assume this evidence was
properly admitted.

25
Because the mediator’s email and the Draft Agreement were not

admissible, the only evidence concerning the terms of the contract

was testimony that (1) the parties had a “meeting of the minds”

during mediation and (2) the terms of that agreement are reflected

in two documents a court may not consider in evidence. That

evidence was not sufficient to establish the terms of an agreement.

¶ 54 Nonetheless, the Platenaks maintain that the Westover Draft

proved the terms of an agreement formed during mediation. As

discussed, however, the district court did not ultimately admit the

Westover Draft into evidence or consider it as evidence of a contract

formed during mediation.

¶ 55 Nor was the Westover Draft admissible evidence of an

agreement reached during mediation. As the Platenaks argue, the

Westover Draft is essentially the Draft Agreement, which was not

admissible for the reasons we have articulated. Unlike the

December agreement in Yaekle, the Westover Draft does not reflect

a post-mediation agreement — indeed, no one argues that it does.

The only portion of the Westover Draft that perhaps does not

disclose a mediation communication is Paragraph 19, which does

not reflect a term of the parties’ alleged agreement.

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¶ 56 Because Tuscany and the Platenaks did not carry their burden

to present sufficient admissible evidence of an enforceable

settlement agreement, we reverse the order enforcing an agreement.

III. Attorney Fees

¶ 57 Lastly, the district court awarded the Platenaks attorney fees

and costs pursuant to a prevailing-party clause in their real estate

agreement with the Westover Defendants. Because we reverse the

order supporting that award, we necessarily reverse the court’s

determination that the Platenaks were entitled to fees and costs as

a prevailing party. Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs,

55 P.3d 271, 274 (Colo. App. 2002). In addition, because the

Platenaks have not prevailed on appeal, we deny their request for

appellate attorney fees. See C.A.R. 39.1.

IV. Conclusion

¶ 58 The order enforcing the agreement and awarding fees and

costs is reversed, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE TOW and JUDGE LIPINSKY concur.

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