Tolbert v. Kelly

2013 UT App 149
_________________________________________________________

THE UTAH COURT OF APPEALS

RANDALL J. TOLBERT,
Plaintiff,
v.
DAVID KELLY AND JUDY KELLY,
Defendants,

DAVID KELLY AND JUDY KELLY,
Counterclaim Plaintiffs and Appellants,
v.
KAY E. TOLBERT,
Counterclaim Defendant and Appellee.

Per Curiam Decision
No. 20120777‐CA
Filed June 13, 2013

Sixth District, Manti Department
The Honorable Wallace A. Lee
No. 030600303

Douglas T. Hall, Attorney for Appellants
Douglas L. Stowell, Attorney for Appellee

Before JUDGES DAVIS, THORNE, and VOROS.

PER CURIAM:

¶1 David and Judy Kelly appeal the trial court’s order
dismissing their claim against Kay E. Tolbert pursuant to a
settlement agreement entered into in October 2008. We affirm.

¶2 The Kellys argue that there was no meeting of the minds
regarding the dismissal of their claim against Mrs. Tolbert because
she did not attend the mediation at which the settlement was
Tolbert v. Kelly

reached. They contend that, as a result, the agreement did not
apply to their claim against Mrs. Tolbert and that the trial court
erred in determining that the claim was within the scope of the
agreement.

¶3 Settlement agreements are governed by the same principles
that apply to general contract actions. LD III, LLC v. BBRD, LC, 2009
UT App 301, ¶ 14, 221 P.3d 867. An essential component of the
formation of an agreement is a meeting of the minds regarding the
integral terms. Id. Whether the parties had a meeting of the minds
sufficient to create a binding contract is an issue of fact which
appellate courts review for clear error. Id. ¶ 13. Where the language
of an agreement is unambiguous, the agreement may be
interpreted as a matter of law. Green River Canal Co. v. Thayn, 2003
UT 50, ¶ 17, 84 P.3d 1134.

¶4 The Kellys assert that there was no agreement with Mrs.
Tolbert because she was not present at the mediation. Even if there
was no agreement with Mrs. Tolbert specifically, the settlement
agreement between Randall J. Tolbert and the Kellys included a
broad release of all claims in the underlying case without
reservation. The agreement stated that the parties “agree to
dismiss, with prejudice, all claims arising under . . . Case No.
030600303.” Additionally, the agreement emphasized that it was
“intended to resolve all claims relating to the legal proceedings.”

¶5 The Kellys fail to show that there was no meeting of the
minds between the parties to the settlement agreement—Mr.
Tolbert and the Kellys. The language of the agreement is
unambiguous as to the dismissal of all claims. The Kellys
undertake no analysis of the language of the agreement to show
otherwise. The claim against Mrs. Tolbert is certainly a claim
“arising under” the case below. The assertion that there is no
agreement with Mrs. Tolbert is simply irrelevant to the agreement
actually made given the broad scope of the release.

20120777‐CA 2 2013 UT App 149
Tolbert v. Kelly

¶6 On appeal, the burden of persuasion falls squarely on an
appellant, here the Kellys. See State v. Robison, 2006 UT 65, ¶ 21, 147
P.3d 448. They have not carried this burden.

¶7 Affirmed.

20120777‐CA 3 2013 UT App 149