This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0272
Jay Nygard, et al., Appellants,
vs.
Patrick Walsh, et al., Respondents.
Filed November 9, 2015 Affirmed Schellhas, Judge
Hennepin County District Court File No. 27-CV-12-19546
Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for appellants)
Louise A. Behrendt, Garth J. Unke, Stich, Angell, Kreidler, Unke & Scattergood, P.A., Minneapolis, Minnesota (for respondents)
Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and
Stoneburner, Judge.*
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellants challenge district court orders compelling arbitration and confirming
the arbitration award. We affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. FACTS
The facts are undisputed. Appellants Jay Nygard and Kendall Nygard sued
respondents Patrick Walsh and Nancy Walsh for trespass, among other things. On
March 5, 2012, in connection with court-affiliated mediation, the parties executed a
mediated settlement agreement through which they agreed to a dismissal of the action.1
Pertinent to this appeal, the settlement agreement contains the following provisions:
1. Neither party will intentionally trespass on other part[y’]s property.
2. Walsh[es] to move mailbox by June 1 and fence— per Nygards’ survey to conform with boundary of City of Orono.
....
6. [Mediator] to arbitrate any dispute interpreting this agreement.
The Mediator will notify the Court of the fact that this case has been settled.
This is a binding and enforceable agreement and contract. Pursuant to Minnesota Statutes Section 572.35, the parties are hereby advised that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a settlement agreement may adversely affect their legal rights; and (c) they should consult with an attorney before signing a mediated settlement agreement if they are uncertain of their rights.
On June 2, 2012, Nygards wrote to the mediator, alleging that Walshes had
violated several terms of the settlement agreement, including the fence-and-mailbox and
trespass terms, and requesting enforcement of the agreement. After visiting the parties’
1 The record does not indicate who drafted the settlement agreement.
2 properties and meeting with the parties, the mediator sent the parties his “rulings” in a
letter. The mediator “suggest[ed] that the parties retain a new neutral surveyor to
determine the property line and abide by the decision” and determined that Nygards were
not entitled to damages for Walshes’ alleged trespass.
On August 10, 2012, Nygards commenced the present action, seeking enforcement
of the settlement agreement and damages. Walshes moved to dismiss the action and to
compel arbitration. Nygards opposed the motion by arguing that the settlement agreement
did not require arbitration and, alternatively, that the scope of the arbitration provision in
the settlement agreement was limited to “disputes interpreting [the settlement
agreement].” The district court dismissed Nygards’ action without prejudice and ordered
the parties to arbitrate their disputes, concluding that the settlement agreement required
the parties to arbitrate for the following reasons:
First, the Arbitration Provision must be construed to require arbitration because (1) the use of the phrase “to arbitrate” implies that arbitration is mandatory and (2) the Arbitration Provision does not use the word “may” or any other language implying that arbitration is optional or permissive. Second, even if arbitration is permissive rather than mandatory, . . . Nygards elected arbitration by submitting their request for relief to [the mediator].
In addition, the court determined that the agreement to arbitrate extended to disputes over
enforcement of the settlement agreement because “an agreement to arbitrate ‘any dispute
interpreting’ the Settlement Agreement naturally entails an agreement to arbitrate any
dispute over enforcement of the Settlement Agreement.” The court resolved any
ambiguity in the scope of the arbitration provision in favor of arbitration, relying on state
3 and federal policies favoring arbitration, Nygards’ conduct in initially asking the
mediator to enforce the settlement agreement, and the authority of the mediator (as
arbitrator) to decide questions of arbitrability.
Nygards appealed from the order dismissing their action and compelling
arbitration, and this court dismissed the appeal as taken from a nonappealable order.
Nygard v. Walsh, No. A13-0632 (Minn. App. May 7, 2013) (order). The parties thereafter
participated in an arbitration hearing before the mediator (hereafter referred to as
arbitrator), who issued a written ruling that Nygards failed to meet their burden of proof
regarding their trespass and other allegations. Nygards then moved the district court to
vacate the arbitration award under Minn. Stat. § 572B.23(a)(2)(A) (2014), due to the
“evident partiality” of the arbitrator. In opposition, Walshes sought confirmation of the
award under Minn. Stat. § 572B.23(d) (2014). The district court denied Nygards’ motion
to vacate, confirmed the arbitration award, and entered judgment for Walshes.
This appeal follows.
DECISION
Nygards solely argue on appeal that, because the settlement agreement arose out
of court-affiliated mediation and does not provide for binding arbitration, it is governed
by Minn. R. Gen. Prac. 114.02. That rule provides:
If the parties stipulate in writing that the arbitration will be binding, then the proceeding will be conducted pursuant to the [Minnesota] Uniform Arbitration Act . . . . If the parties do not stipulate that the arbitration will be binding, then the
4 award is non-binding and will be conducted pursuant to Rule 114.09.
Minn. R. Gen. Prac. 114.02(a)(1).
Nygards argue that, because the settlement agreement lacks an express stipulation
to submit to binding arbitration, the arbitration was non-binding and this court therefore
must reverse the district court’s order confirming the arbitration award. We disagree.
“A reviewing court must generally consider only those issues that the record
shows were presented and considered by the trial court in deciding the matter before it.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). In addition, a
party may not “obtain review by raising the same general issue litigated below but under
a different theory.” Id. “The modern caselaw makes it abundantly clear that, as a general
rule, if an appellant fails to preserve an argument or issue in district court proceedings,
the issue or argument is forfeited and may not be asserted in an appellate court.” Doe ex
rel. Doe v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 43 & n.1 (Minn. App. 2014)
(collecting cases).
The record reflects that Nygards did not raise their rule-114 argument concerning
binding arbitration before the district court. Nygards’ complaint, amended complaint, and
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0272
Jay Nygard, et al., Appellants,
vs.
Patrick Walsh, et al., Respondents.
Filed November 9, 2015 Affirmed Schellhas, Judge
Hennepin County District Court File No. 27-CV-12-19546
Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for appellants)
Louise A. Behrendt, Garth J. Unke, Stich, Angell, Kreidler, Unke & Scattergood, P.A., Minneapolis, Minnesota (for respondents)
Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and
Stoneburner, Judge.*
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellants challenge district court orders compelling arbitration and confirming
the arbitration award. We affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. FACTS
The facts are undisputed. Appellants Jay Nygard and Kendall Nygard sued
respondents Patrick Walsh and Nancy Walsh for trespass, among other things. On
March 5, 2012, in connection with court-affiliated mediation, the parties executed a
mediated settlement agreement through which they agreed to a dismissal of the action.1
Pertinent to this appeal, the settlement agreement contains the following provisions:
1. Neither party will intentionally trespass on other part[y’]s property.
2. Walsh[es] to move mailbox by June 1 and fence— per Nygards’ survey to conform with boundary of City of Orono.
....
6. [Mediator] to arbitrate any dispute interpreting this agreement.
The Mediator will notify the Court of the fact that this case has been settled.
This is a binding and enforceable agreement and contract. Pursuant to Minnesota Statutes Section 572.35, the parties are hereby advised that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a settlement agreement may adversely affect their legal rights; and (c) they should consult with an attorney before signing a mediated settlement agreement if they are uncertain of their rights.
On June 2, 2012, Nygards wrote to the mediator, alleging that Walshes had
violated several terms of the settlement agreement, including the fence-and-mailbox and
trespass terms, and requesting enforcement of the agreement. After visiting the parties’
1 The record does not indicate who drafted the settlement agreement.
2 properties and meeting with the parties, the mediator sent the parties his “rulings” in a
letter. The mediator “suggest[ed] that the parties retain a new neutral surveyor to
determine the property line and abide by the decision” and determined that Nygards were
not entitled to damages for Walshes’ alleged trespass.
On August 10, 2012, Nygards commenced the present action, seeking enforcement
of the settlement agreement and damages. Walshes moved to dismiss the action and to
compel arbitration. Nygards opposed the motion by arguing that the settlement agreement
did not require arbitration and, alternatively, that the scope of the arbitration provision in
the settlement agreement was limited to “disputes interpreting [the settlement
agreement].” The district court dismissed Nygards’ action without prejudice and ordered
the parties to arbitrate their disputes, concluding that the settlement agreement required
the parties to arbitrate for the following reasons:
First, the Arbitration Provision must be construed to require arbitration because (1) the use of the phrase “to arbitrate” implies that arbitration is mandatory and (2) the Arbitration Provision does not use the word “may” or any other language implying that arbitration is optional or permissive. Second, even if arbitration is permissive rather than mandatory, . . . Nygards elected arbitration by submitting their request for relief to [the mediator].
In addition, the court determined that the agreement to arbitrate extended to disputes over
enforcement of the settlement agreement because “an agreement to arbitrate ‘any dispute
interpreting’ the Settlement Agreement naturally entails an agreement to arbitrate any
dispute over enforcement of the Settlement Agreement.” The court resolved any
ambiguity in the scope of the arbitration provision in favor of arbitration, relying on state
3 and federal policies favoring arbitration, Nygards’ conduct in initially asking the
mediator to enforce the settlement agreement, and the authority of the mediator (as
arbitrator) to decide questions of arbitrability.
Nygards appealed from the order dismissing their action and compelling
arbitration, and this court dismissed the appeal as taken from a nonappealable order.
Nygard v. Walsh, No. A13-0632 (Minn. App. May 7, 2013) (order). The parties thereafter
participated in an arbitration hearing before the mediator (hereafter referred to as
arbitrator), who issued a written ruling that Nygards failed to meet their burden of proof
regarding their trespass and other allegations. Nygards then moved the district court to
vacate the arbitration award under Minn. Stat. § 572B.23(a)(2)(A) (2014), due to the
“evident partiality” of the arbitrator. In opposition, Walshes sought confirmation of the
award under Minn. Stat. § 572B.23(d) (2014). The district court denied Nygards’ motion
to vacate, confirmed the arbitration award, and entered judgment for Walshes.
This appeal follows.
DECISION
Nygards solely argue on appeal that, because the settlement agreement arose out
of court-affiliated mediation and does not provide for binding arbitration, it is governed
by Minn. R. Gen. Prac. 114.02. That rule provides:
If the parties stipulate in writing that the arbitration will be binding, then the proceeding will be conducted pursuant to the [Minnesota] Uniform Arbitration Act . . . . If the parties do not stipulate that the arbitration will be binding, then the
4 award is non-binding and will be conducted pursuant to Rule 114.09.
Minn. R. Gen. Prac. 114.02(a)(1).
Nygards argue that, because the settlement agreement lacks an express stipulation
to submit to binding arbitration, the arbitration was non-binding and this court therefore
must reverse the district court’s order confirming the arbitration award. We disagree.
“A reviewing court must generally consider only those issues that the record
shows were presented and considered by the trial court in deciding the matter before it.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). In addition, a
party may not “obtain review by raising the same general issue litigated below but under
a different theory.” Id. “The modern caselaw makes it abundantly clear that, as a general
rule, if an appellant fails to preserve an argument or issue in district court proceedings,
the issue or argument is forfeited and may not be asserted in an appellate court.” Doe ex
rel. Doe v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 43 & n.1 (Minn. App. 2014)
(collecting cases).
The record reflects that Nygards did not raise their rule-114 argument concerning
binding arbitration before the district court. Nygards’ complaint, amended complaint, and
answer to Walshes’ counterclaim do not assert that the settlement agreement was
governed by rule 114 and required only non-binding arbitration. Moreover, in their
response to Walshes’ motion to dismiss and compel arbitration, Nygards did not mention
rule 114. Nygards instead argued that the arbitration provision in the settlement
agreement included no mandatory language and therefore no agreement requiring
5 arbitration existed; alternatively, they argued that the scope of the arbitration provision
was limited to disputes over interpretation and did not include enforcement of the
settlement agreement. And in their motion to vacate the arbitration award, Nygards did
not argue that rule 114 required an express stipulation to submit to binding arbitration.
Rather, Nygards argued that the district court should vacate the award because of the
arbitrator’s evident partiality. The district court rejected all of Nygards’ arguments, which
Nygards have not raised on appeal.
Nygards failed to raise before the district court the argument that an arbitration
provision of a mediated settlement agreement under rule 114 requires an express
stipulation to submit to binding arbitration. Their argument therefore is forfeited on
appeal.
Affirmed.