Tolbert v. Kelly

2013 UT App 149
_________________________________________________________
THE U TAH COURT OF A PPEALS
R ANDALL J. T OLBERT,
Plaintiff,
v.
D AVID KELLY AND J UDY KELLY ,
Defendants,
D AVID KELLY AND J UDY KELLY ,
Counterclaim Plaintiffs and Appellants,
v.
KAY E. T OLBERT,
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 J UDGES D AVIS, T HORNE , 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

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20120777‐CA 	2013 UT App 149	2
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.

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20120777‐CA 	2013 UT App 149	3
¶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.