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
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.
26 ¶ 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.