910 N.W.2d 906
S.D.2018Background
- Weston and Eryn Winegeart, remarried, owned a house in Pierre and separated after Weston filed for divorce in October 2016; both left the home.
- The court ordered mediation; on March 9, 2017 the parties mediated. Eryn later claimed the parties orally agreed in mediation to sell the house without paying realtor commissions.
- Weston signed a listing agreement with a realtor (including commission) and a third party signed a purchase agreement for $330,000; Eryn refused to sign the purchase agreement.
- Weston moved to compel Eryn to sign the purchase agreement; the mediator was deposed and (over objection) testified he understood there would be no realtor commission and it would be a private sale.
- The circuit court found no enforceable oral agreement to prohibit realtor fees, ordered Eryn to sign, and later the parties executed a written property-settlement agreement (April 15, 2017) that expressly acknowledged disagreement over employing a broker.
- Eryn appealed the March 31, 2017 order; the Supreme Court affirmed, rejecting enforcement of an oral mediation settlement and noting confidentiality and the subsequently executed written agreement.
Issues
| Issue | Plaintiff's Argument (Eryn) | Defendant's Argument (Weston) | Held |
|---|---|---|---|
| Whether an oral agreement made during mediation to sell without paying realtor fees is enforceable | Parties reached an oral mediated agreement forbidding realtor commissions; mediator’s testimony proves it | Mediation communications are privileged and an oral agreement is unenforceable; confidentiality agreement bars mediator testimony; written subsequent agreement supersedes any oral term | Court held oral mediation settlements are not enforceable evidence under SD UMA; mediator cannot disclose terms of an oral settlement for enforcement, confidentiality agreement bars mediator testimony, and the later written agreement supersedes any prior oral negotiations |
| Whether the mediator may disclose the terms of an oral settlement under SDCL 19-13A-7(b)(1) | Eryn contends mediator’s testimony about terms is admissible under §7(b)(1) | Weston argues §7(b)(1) should be read narrowly and SD UMA does not allow disclosure of terms of oral settlements; privilege remains | Court interpreted §7(b)(1) narrowly: mediator may disclose whether settlement was reached, but not terms of an oral (unwritten) settlement; privilege protects mediation terms absent a signed writing |
| Whether the parties’ confidentiality agreement precluded mediator testimony | Eryn argues confidentiality agreement should not prevent using mediator testimony to enforce oral settlement | Weston points to explicit confidentiality clause forbidding subpoenas or mediator disclosure | Court held the parties’ confidentiality agreement prohibited mediator testimony, so mediator’s statements were inadmissible here |
| Whether the April 15 written property-settlement agreement alters relief | Eryn contends the March 9 oral agreement controls and Weston should pay realtor fees | Weston argues the written April 15 agreement supersedes prior oral negotiations and contains contrary language | Court held the written April 15 agreement supersedes any prior oral negotiations and expressly acknowledges disagreement about hiring a broker, so Eryn cannot vary it by prior oral evidence |
Key Cases Cited
- Pitt-Hart v. Sanford USD Med. Ctr., 878 N.W.2d 406 (S.D. 2016) (statutory interpretation reviewed de novo)
- In re Estate of Flaws, 811 N.W.2d 749 (S.D. 2012) (canon of construction: expressio unius est exclusio alterius)
- Reese v. Tingey Constr., 177 P.3d 605 (Utah 2008) (UMA does not permit enforcement of oral mediation agreements; only written settlements enforceable)
- Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 71 A.3d 888 (N.J. 2013) (parties intending to enforce mediation settlement must execute a signed written agreement)
- Vander Heide v. Boke Ranch, Inc., 736 N.W.2d 824 (S.D. 2007) (mutual assent is required to form a binding contract)