Burton D. Dow, III & a. v. Burton D. Dow, Sr. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0783, Burton D. Dow, III & a. v. Burton D.
Dow, Sr. & a., the court on September 18, 2015, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiffs, Burton D. Dow, III and Jestine Olsen-Dow, appeal an order
of the Superior Court (Delker, J.) granting a motion to enforce a settlement
agreement in their quiet title action against the defendants, Burton D. Dow, Sr.
and Addie Dow. They contend that “[t]here is insufficient evidence to support the
finding that the parties agreed to the terms set forth in . . . the written settlement
agreement.”

We review a trial court’s ruling that a settlement existed as a mixed
question of law and fact. Hogan Family Enters. v. Town of Rye, 157 N.H. 453,
456 (2008). We will not overturn the trial court’s ruling on a mixed question
unless it is clearly erroneous. Id. If, however, the court misapplies the law to its
factual findings, we review the matter independently under a plain error
standard. Id. In reviewing a settlement agreement, we are mindful of the strong
public policy favoring the settlement of civil matters. Id.

A valid and enforceable settlement, like any contract, requires offer,
acceptance, consideration, and mutual assent. Id. Mutual assent requires that
the parties have the same understanding of the agreement’s essential terms and
manifest an intent to be bound by them. Id. Such a meeting of the minds is
present when the evidence, viewed objectively, indicates that the parties have
assented to the same terms. Glick v. Chocorua Forestlands Ltd. P’ship, 157 N.H.
240, 252 (2008). The question of whether a meeting of the minds occurred is a
factual question to be determined by the trier of fact, and, on this issue, we will
sustain a trial court’s findings and conclusions unless they are lacking in
evidentiary support or tainted by an error of law. Id.

In this case, the trial court had ample evidence to support its conclusion
that the parties assented to the essential terms of the settlement and manifested
an agreement to be bound by them. The mediator testified that Dow, Sr. and
Dow, III both stated that the issues were Olsen-Dow leaving the premises and
Dow, III paying rent. The mediator further testified that, although the parties’
claims against each other were brought up, they “certainly w[ere] not a significant
issue in the discussions.” The mediator, Dow, Sr. and one of Dow, Sr.’s
daughters, who was present during the mediation, all testified that the parties
agreed that Olsen-Dow would leave and Dow, III would pay rent. The daughter
also testified that the plaintiffs’ attorney promised to call the court in the morning
and cancel the scheduled trial.

Furthermore, the mediator testified that Dow, III and Olsen-Dow each told
him that an agreement had been reached. Although Olsen-Dow subsequently
testified that she did not believe an agreement had been reached, the trial court
was not required to accept her testimony. See Town of Atkinson v. Malborn
Realty Trust, 164 N.H. 62, 67 (2012) (stating trial court entitled to accept or
reject, in whole or in part, testimony of any witness).

To the extent that the plaintiffs argue that negotiations between their
attorneys after mediation concluded shows that no agreement was reached, we
disagree. Although the settlement agreement contemplated Dow, III and the
defendants negotiating the terms of a lease, this does not compel a finding that
the parties had not reached a meeting of the minds on the essential terms of the
settlement. See Hogan, 157 N.H. at 457-58 (stating provision that language of
easement was to be negotiated by counsel did not render settlement agreement
requiring conveyance of easement unenforceable, but merely imposed obligation
to negotiate specific easement language in good faith). Nor does the parties’
failure to sign the handwritten agreement at the end of the mediation compel a
finding that no agreement was reached. See Harrison v. Watson, 116 N.H. 510,
511 (1976) (stating contract may be established by spoken or written words or by
acts or conduct).

Upon this record, we conclude that the trial court’s finding that “the
parties did reach a settlement agreement on all material terms at the conclusion
of the mediation” is supported by the evidence and not tainted by an error of law.
See Glick, 157 N.H. at 252.

The plaintiffs argue that “[t]he written settlement document being enforced
by the Court is considerably more detailed than a general agreement” reached in
mediation because it contains the following provisions: (1) judgment to be
entered for the defendants; (2) “[t]he [plaintiffs] waive all claims for compensation
from the [defendants] for the revocation of the license to use the [defendants’]
land”; and (3) Dow, III “shall indemnify and hold harmless the [defendants] from
all damages resulting from the operations of the business.” However, the record
does not reflect that they raised this issue in the trial court. See Bean v. Red Oak
Prop. Mgmt., 151 N.H. 248, 250 (2004); N.H. Dep’t of Corrections v. Butland, 147
N.H. 676, 679 (2002).

Even if this issue were preserved for our review, we note that the day after
the mediation, the plaintiffs’ attorney sent the defendants’ attorney a typed
agreement and stated that the plaintiffs had agreed to sign it. The typed
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agreement was substantially similar to the handwritten agreement as to the
provisions identified by the plaintiffs, except that it provided that judgment would
be entered for neither party. In fact, Olsen-Dow testified that the only difference
between the handwritten agreement and her attorney’s typed version was the
removal of the handwritten agreement’s reference to her children.

Accordingly, we conclude that the trial court’s ruling that the handwritten
settlement agreement is enforceable was supported by the record and not
erroneous as a matter of law.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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