Larson v. Larson ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ARNOLD N. LARSON, individually;
ARLA L. HARRIS, Trustee, Arnold A.
Larson Trust; ARNOLD N. LARSON,
beneficiary of Arnold A. Larson Trust,
Plaintiffs - Appellees,
v. No. 16-8065
(D.C. No. 2:15-CV-00150-NDF)
CHARLES R. LARSON, (D. Wyoming)
Defendant - Appellant,
and
DEBRA M. LARSON,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
After the death of their father, a dispute arose among Arnold N. Larson
(“Arny”), Arla L. Harris, and Charles R. Larson regarding the administration of his
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
trust.1 Among other issues, the parties disagreed on the proper distribution of their
father’s interests in the Larson Hereford Ranch Limited Partnership (“Partnership”)
and a parcel of real property known as the Larson Hereford Ranch (“Ranch”). As a
result of this disagreement, siblings Arny and Arla filed suit alleging that their
brother, Charles, had violated the terms of their father’s trust and had breached
various duties associated with his position as trustee of the trust. The parties later
attended court-ordered mediation, at which they signed similar, but not identical,
versions of a settlement document entitled Basic Terms of Settlement (“Basic
Terms”). Shortly thereafter, the parties informed the district court that they had
resolved all claims between them. They then attempted to finalize a more
comprehensive settlement agreement entitled Mutual Release and Settlement.
Although multiple drafts of the comprehensive settlement document were circulated,
the parties ultimately reached an impasse, and Arny and Arla asked the district court
to enforce either the Basic Terms or a draft of the Mutual Release and Settlement to
which they believed all parties had previously agreed.
After a comprehensive evidentiary hearing, the district court granted Arny and
Arla’s request and enforced the fourth draft of the Mutual Release and Settlement
(“Settlement Agreement”) as the parties’ final settlement agreement. In its order, the
1
Debra M. Larson did not join this appeal. Therefore, references to “the
parties” in this order refer only to siblings Arnold N. Larson, Arla L. Harris, and
Charles R. Larson. Like the parties and the district court, we refer to the parties by
their first names for clarity. And we distinguish between Arnold A. Larson and
Arnold N. Larson by referring to the latter as “Arny.”
2
district court determined, among other things, that the Settlement Agreement applied
to both the Ranch and the Partnership, and that Charles had settled and released all of
his claims relating to ownership of both. Charles filed a timely appeal challenging the
district court’s decision that the Settlement Agreement applies to claims of ownership
in the Ranch, including his individual claim to the property. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
1. Catherine N. Larson’s Interest in the Ranch
Arnold A. Larson and Catherine N. Larson, parents of all parties to this appeal,
each owned an undivided one-half interest in the Ranch as equal tenants in common.
During her estate planning, Catherine created the Catherine N. Larson Revocable
Trust and designated her one-half interest in the Ranch, along with other individually
owned property, as property of the trust. The terms of Catherine’s trust dictated that
upon her death all then-existing trust property was to be divided between two
separate trusts: the “Husband’s Trust” and the “Family Trust.” Catherine predeceased
Arnold A. Larson by more than thirty years, leaving him with various powers of
appointment and as sole trustee of her revocable trust.
The parties dispute which sub-trust Catherine’s one-half interest in the Ranch
was placed in upon her death. But, apparently believing it was transferred to the
Family Trust and pursuant to his power of appointment over that trust, Arnold A.
Larson included the following provision in his Last Will and Testament:
3
(1) LARSON HEREFORD RANCH PROPERTY. All of the interest
of the FAMILY TRUST of The CATHERINE N. LARSON
TRUST in any ranch real estate (including any home located
thereon), cattle, horses, hay, grain, and machinery and all other
customary ranch properties, shall be distributed to my son,
[Arny], if he survives me.
Accordingly, after Arnold A. Larson’s death in 2012, the surviving trustees of the
Catherine N. Larson Revocable Trust deeded Arny a one-half ownership interest in
the Ranch.
2. Arnold A. Larson’s Interest in the Ranch
Approximately twenty-four years prior to his death, on December 27, 1988,
Arnold A. Larson formed the Partnership with two of his sons, Charles and David J.
Larson. At the time the Partnership was created, Arnold A. Larson owned forty-eight
percent of the Partnership as a General Partner and forty-eight percent as a Limited
Partner. Each son owned a two percent interest as a General Partner.2 Three days
later, on December 30, 1988, Arnold A. Larson deeded his undivided one half-
interest in the Ranch to “ARNOLD A. LARSON, CHARLES R. LARSON and
DAVID J. LARSON and the survivors and survivor thereof, General Partners of
LARSON HEREFORD RANCH[] LIMITED PARTNERSHIP.” Charles contends
this deed transferred his father’s one-half interest in the Ranch, not the Partnership,
but that it conveyed that interest to Arnold A. Larson, Charles, and David in their
personal and individual capacities. As a result, he claims he holds an individual
2
Charles claims that Arnold A. Larson gifted a two percent interest in the
Partnership on an individual and annual basis to himself, Debra M. Larson (Charles’s
wife), David J. Larson, and Jeannie K. Larson (David’s wife). Charles alleges this
practice occurred from 1988 until 1995.
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ownership interest in the Ranch separate and apart from any interest he holds in the
Partnership. Arny and Arla dispute this contention, arguing the deed transferred the
one-half interest in the Ranch to the Partnership.
Over a decade later, before any dispute arose regarding the interests in the
Ranch, Arny and Arla contend that Arnold A. Larson held two meetings with his
children and his attorney to discuss his estate plan. At these meetings, which
occurred in 2002 and 2003, Arnold A. Larson allegedly indicated his desire for the
Ranch to go to Arny, and for Charles and David to receive cash gifts in return for
their interests in the Partnership and Ranch. Charles notes he was not in attendance at
the 2003 meeting and disputes the existence of any agreement to exchange his
interests in the Partnership and Ranch for cash. And while it is undisputed that both
Charles and David received cash gifts from their father, Charles asserts the gifts were
not connected to any transfer of the brothers’ interests in the Partnership and Ranch.
In 2004, Arnold A. Larson executed the First Amendment to and Restatement
of the Arnold A. Larson Trust (“Trust”). The terms of the amended trust provide, in
relevant part:
(1) LARSON HEREFORD RANCH LIMITED PARTNERSHIP. All
of the Grantor’s interest in LARSON HEREFORD RANCH
LIMITED PARTNERSHIP, a Wyoming limited partnership (the
“Partnership”), together with the Grantor’s interest in any ranch
real estate (including the Grantor’s home located thereon), cattle,
horses, hay, grain, and machinery and all other customary ranch
properties, that is owned by the Grantor or this trust at the time of
Grantor’s death, shall be distributed to Grantor’s son, [Arny], if
he survives the Grantor.
The Trust also designates Charles and Arla as co-trustees.
5
Arnold A. Larson passed away in early 2012. Sometime after his father’s
death, and after receiving Catherine’s one-half interest in the Ranch, Arny requested
that Charles and Arla administer and distribute their father’s trust. Although the
parties dispute whether any distributions were made pursuant to the Trust in the four
years after their father’s death, they agree that Charles refused to distribute complete
ownership of the Partnership and the remaining one-half ownership interest in the
Ranch to Arny due to disagreement concerning their ownership. Despite further
communications and family mediation, the parties could not reach an agreement
regarding the proper administration of the Trust.
B. Procedural History
On July 20, 2015, Arny, individually and as a beneficiary of the Trust, and
Arla, as trustee of the Trust, filed suit against Charles and his wife, Debra, in
Wyoming state court. Arny and Arla alleged Charles had breached: (1) the terms of
the Trust; (2) his fiduciary duties; and (3) his duty of good faith and fair dealing.
They also sought declaratory judgments regarding ownership of the Partnership,
which they alleged owned their father’s one-half interest in the Ranch, and regarding
Charles’s alleged improper use of Trust funds and assets. Finally, they requested a
preliminary injunction barring Charles from using Trust funds until a resolution of
the lawsuit was reached.
Charles and Debra filed a Notice of Removal to the United States District
Court for the District of Wyoming on the basis of diversity jurisdiction. The federal
district court entered an order of removal on September 3, 2015. Shortly thereafter,
6
on September 28, 2015, the district court denied Arny and Arla’s motion for a
preliminary injunction, and the parties subsequently filed a Joint Case Management
Plan (“JCMP”) setting forth, among other things, the parties’ claims, defenses, and
condensed factual allegations. The JCMP included contentions from both sides
regarding ownership of the Ranch, including Charles’s allegations that: (1) the 1998
deed is unclear as to whether it “transferred the one-half interest [in the Ranch] to the
Partnership or to the General Partners thereto in their personal capacities”; and
(2) Catherine’s one-half interest in the Ranch was held in the Husband’s Trust, as
opposed to the Family Trust, and therefore it had been improperly distributed to
Arny. On October 30, 2015, the district court ordered the parties to attend mediation
and to file a joint status report regarding the outcome.
The parties attended mediation in Denver before retired Judge William
Downes in late 2015. During the mediation, counsel for Charles and Debra presented
a PowerPoint presentation (the “presentation”) detailing issues surrounding
ownership of the Ranch and Partnership. At the conclusion of the mediation, the
parties executed differing versions of the Basic Terms agreement,3 and later filed a
3
Charles and Debra signed a slightly different document than that signed by
Arny, Arla, and other beneficiaries of the Trust. While the provisions relevant to our
inquiry are identical in both documents, the version signed by Arny and Arla includes
two additions added after Charles and Debra left the mediation: (1) in paragraph five,
which states “[j]oint stipulation to dismiss with prejudice upon: [s]igning the
agreement,” the version signed by Arny and Arla includes the addition of “& will not
file any case in any other action”; and (2) a new paragraph 12 that states: “All
beneficiaries release Arla Harris from any claims or demands for arising from or
related to any act or omission as Trustee prior to this date.”
7
joint status report to the district court stating that “[a]t th[e] mediation, the Parties
were able to reach a resolution concerning all claims between them.”
In relevant part, both executed versions of the Basic Terms include the
following provisions: (1) in exchange “for all [of their] [P]artnership interests,”
Charles and Debra are to retain the approximately $135,000.00 of Partnership funds
they had previously withdrawn, and to receive an additional $105,000.00 payment
from Arny and Arla within forty-five days; (2) Charles is to immediately resign as
co-trustee of the Trust and partner of the Partnership, and Debra must resign as
partner of the Partnership and waives any right to Partnership property or funds;
(3) any remaining Trust funds are to remain under the control of Arla as sole trustee;
(4) the parties jointly stipulate to dismiss the lawsuit with prejudice upon signing of
the agreement; (5) formal settlement documents are to be prepared by defense
counsel with input from plaintiffs’ counsel, and if formal documents are not signed
within thirty days “these basic terms shall be the full final agreement”; and (6) “[t]he
parties understand that th[e] document is a binding enforceable agreement and may
be submitted to a court to prove the existence of the agreement or for enforcement.”
In addition, the parties checked a box in paragraph three, next to the term “Full,”
which indicates the settlement and release applies to “all claims that could or did
arise between the parties known or unknown.”
On January 8, 2016, Arny’s counsel emailed counsel for Charles and Debra to
inquire about the status of the formal settlement agreement anticipated by the Basic
Terms. Because no draft was forthcoming, Arny’s counsel produced and circulated a
8
draft agreement, entitled Mutual Release and Settlement, to all counsel on
January 27, 2016, approximately thirty-seven days after the Basic Terms had been
signed. This initiated a negotiation process that culminated in the creation of four
draft Mutual Release and Settlement agreements, the last of which, the Settlement
Agreement, was circulated on February 4, 2016.
Four days later, on February 8, 2016, counsel for Arny emailed Charles and
Debra’s counsel to inquire whether the Settlement Agreement constituted the final
release agreement. Charles and Debra’s counsel responded by circulating a new draft
of the Mutual Release and Settlement agreement, which contained multiple
substantive changes. Arny and Arla refused to sign the newly drafted agreement and
indicated they believed all parties had agreed to the previous draft circulated on
February 4, 2016. Thereafter, the parties were unable to agree on a final version of
the formal release agreement and on February 10, 2016, Arny and Arla filed a motion
requesting the district court to enforce the terms of the Settlement Agreement. Arny
and Arla filed a supplemental motion on March 17, 2016, generally seeking
enforcement of the Basic Terms and the Settlement Agreement.
The parties fully briefed the motions to enforce and the district court set an
evidentiary hearing for May 19, 2016. Prior to the evidentiary hearing, Charles and
Debra filed a motion seeking to bar Arny and Arla from obtaining, through
discovery, the presentation used by their counsel during the mediation. A magistrate
judge denied the motion, finding the presentation to be discoverable under Wyoming
law.
9
On May 19, 2016, the district court conducted an extensive evidentiary hearing
on Arny and Arla’s motions to enforce. Four days later, it granted Arny and Arla’s
motions, finding all parties had agreed to the fourth draft of the Mutual Release and
Settlement and that the agreement constitutes a valid, enforceable settlement
agreement. In its ruling construing the scope of the Settlement Agreement, the district
court made factual findings that Charles had “agreed to a full release of all claims
that could or did arise between the parties known or unknown,” and that his “claims
and contentions concerning ownership of the Larson Hereford Ranch lands and the
Larson Hereford Ranch Partnership are known claims that DID arise between the
parties to this case.” It further found that Charles’s “contention that the ranch land
was not part of the partnership discussed at the mediation and is not subject to the
release of claims in the [Basic Terms or the formalized Settlement Agreement] . . . is
simply unsupported by the record” and “lacks any factual basis or legal authority.”
As a result, the district court concluded, among other things, that Charles had
“promised a full release of [his] claims relating to the ownership of the ranch, and
may not raise those claims now” as he “no longer ha[s] any claim to the
[Partnership], the [Ranch], and the First Amendment to and Restatement of the
Arnold A. Larson Trust.”
Charles now appeals the district court’s ruling.
II. DISCUSSION
Charles does not challenge the district court’s determination that the
Settlement Agreement constitutes a valid and enforceable agreement. Rather, he
10
contends the district court erred in broadly construing the agreement to extend to the
Ranch and any individual ownership interest he may claim in it. Charles supports this
contention by arguing that: (1) the Settlement Agreement makes no mention of the
Ranch or his alleged individual ownership interest therein; (2) the magistrate judge
and district judges erred by allowing the discovery and admission into evidence of
the presentation used at mediation; and (3) the district court improperly relied on
extrinsic evidence to determine the agreement applied to the Ranch.4 We disagree,
and conclude: (1) the district court properly construed the Settlement Agreement as a
full and final settlement of all claims that had arisen during the case, including
Charles’s claim of individual ownership in the Ranch; (2) even assuming, without
deciding, that the presentation should not have been admitted into evidence, any
presumed error is harmless; and (3) the district court’s consideration of the JCMP
when construing the Settlement Agreement was permitted under Wyoming law.
“We review a district court’s decision to enforce a settlement agreement for
abuse of discretion.” Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th
Cir. 2013); see also Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004) (holding
4
Charles also argues the district court erred in finding the Settlement
Agreement settled and released his individual claims of ownership in the Ranch
because the agreement only identifies him in his capacities as a trustee and partner,
and therefore cannot be read as a release of any claims he raised as an individual.
Charles did not raise this argument before the district court. We therefore do not
consider it here. United States v. McCall, 235 F.3d 1211, 1216 (10th Cir. 2000) (“The
general rule is that this court will not consider an issue on appeal that was not raised
below.”); Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 720–22 (10th Cir. 1993)
(noting “we have consistently refused invitations to consider new issues on appeal”
and “have therefore repeatedly stated that a party may not lose in the district court on
one theory of the case, and then prevail on appeal on a different theory”).
11
“[a] trial court has the power to summarily enforce a settlement agreement entered
into by the litigants while the litigation is pending before it” and that we review such
decisions “for abuse of discretion”). But because the parties do not dispute the
enforceability of the Settlement Agreement, we limit our review to the district court’s
construction of that agreement. In doing so, we review the district court’s legal
interpretations de novo, Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146,
1154 (10th Cir. 2008), and its factual findings for clear error, Naimie v. Cytozyme
Labs., Inc., 174 F.3d 1104, 1112 (10th Cir. 1999). “If [the] contract is ambiguous, the
resolution of its proper meaning is a question of fact subject to review on a clearly
erroneous standard.” King v. PA Consulting Grp., Inc., 485 F.3d 577, 589 (10th Cir.
2007) (internal quotation marks omitted). Finally, to the extent construction of a
settlement agreement involves mixed questions of law and fact, we review it “under
the clearly erroneous or de novo standard, depending on whether the mixed question
involves primarily a factual inquiry or the consideration of legal principles.”
Armstrong v. Comm’r of Internal Revenue, 15 F.3d 970, 973 (10th Cir. 1994).
To resolve issues involving the construction of a contract, we apply state
contract law. United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000); see also
Walters, 703 F.3d at 1172. Under Wyoming law, “[a] settlement agreement is a
contract and, therefore, subject to the same legal principles that apply to any
contract.” Gould v. Ochsner, 354 P.3d 965, 979 (Wyo. 2015) (quoting In re Estate of
Maycock, 33 P.3d 1114, 1117 (Wyo. 2001)). The primary focus when construing a
contract “is to determine the parties’ intent, and . . . whether the language of the
12
contract is clear and unambiguous.” Reed v. Miles Land & Livestock Co., 18 P.3d
1161, 1163 (Wyo. 2001). “A contract is ambiguous if its language conveys a double
meaning, lacks definiteness, or otherwise makes the meaning of a provision doubtful
or uncertain.” In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d 357, 361 (Wyo.
2012). In such circumstances, the construction of an ambiguous contract “becomes a
mixed question of law and fact,” Wadi Petroleum, Inc. v. Ultra Res., Inc., 65 P.3d
703, 708 (Wyo. 2003), and courts may consider “competent evidence of pertinent
explanatory circumstances extraneous to the contract” in order to determine the intent
of the parties, In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d at 361. However,
this evidence “may not . . . be used to contradict the terms of a written contract . . .
[or] to supply an additional contract term.” Id.
In contrast, if the contract language is unambiguous, we determine “the
parties’ intent from the words of the agreement as they are expressed within the four
corners of the agreement,” Reed, 18 P.3d at 1163, and enforce the contract “in
accordance with the plain meaning its language would be given by a reasonable
person,” Am. Nat’l Bank v. Sara, 246 P.3d 294, 297 (Wyo. 2011) (quoting Terris v.
Kimmel, 236 P.3d 1022, 1025 (Wyo. 2010)). In doing so, however, we may consider
“the context in which the contract was written, including the subject matter, the
purpose of the contract, and the circumstances surrounding its making . . . to help
ascertain what the parties intended when they made the contract.” Id. (quoting Terris,
236 P.3d at 1025); see also In re Mark E. Dowell Irrevocable Trust #1, 290 P.3d
at 361 (holding that when contract language is unambiguous a court should not resort
13
to examining extrinsic or parol evidence, but that it “may . . . confirm its
understanding of otherwise seemingly unambiguous language by reviewing evidence
which, although extrinsic to the contract, complements that language by clarifying
the context in which the agreement was drawn.”). Finally, our construction is guided
by the principles of good faith and common sense, as they are the “leading precepts
of contract construction” under Wyoming law. Reed, 18 P.3d at 1163.
A. The Settlement Agreement
Applying these principles, we agree with the district court that the clear
language of the Settlement Agreement, along with the context in which it was
written, unambiguously indicates the parties’ intent to settle “all claims that could or
did arise between the parties, known or unknown,” which necessarily encompasses
claims of ownership in the Ranch, including Charles’s individual claim. It is true, as
Charles observes, that the Settlement Agreement does not expressly reference the
Ranch. But ownership of the remaining one-half interest in the Ranch was
undoubtedly at the forefront of the parties’ dispute regarding Partnership and Trust
property, and by agreeing to the Settlement Agreement, Charles plainly disclaimed
any and all right, title, and interest in the Partnership, any and all rights to
Partnership property or funds, and any rights to Trust funds or property.
More importantly, the Settlement Agreement contains expansive language
indicating it is a final settlement and release of all claims, known or unknown, that
could or did arise between the parties during this dispute. In relevant part, the
Settlement Agreement states:
14
In full and final settlement of all claims that could or did arise between
the parties, known or unknown, the parties agree as follows:
NOW, THEREFORE, based on the mutual promises of the parties, the
terms of the [Basic Terms], together with other valuable consideration,
the parties agree as follows:
1. . . . Charles . . . [is] deemed to have and agree that [he] resigned
and transferred any and all right, title and interest [he] held in the
Partnership effective as of December 22, 2015 pursuant to the terms of
the “Basic Terms of Settlement” agreed to at the mediation to [Arny]
....
2. . . . Charles . . . waive[s] any and all rights to Partnership
property or funds as of December 22, 2015 or as may exist in the future
....
3. . . . Charles . . . renounces and waives any rights to any further
distribution or claim to Trust funds or property.
...
8. The parties agree that this mutual release applies to all claims,
whether known or unknown, past, present or prospective, including
unexpected consequences and complications arising from administration
of the trust, or the tax treatment thereof, and all damages, losses, and
expenses sustained by the Trust or Trustees on behalf of the Trust or by
the Partnership or on behalf of the Partnership or by anyone claiming
through the parties . . . . The undersigned agree to expressly assume the
risk of any and all unknown claims or unknown consequences related to
the Trust and/or Partnership, including consequences which could not
reasonably be anticipated at this time. . . .
...
10. The parties covenant and agree never to commence, voluntarily
aid in any way, initiate, institute, maintain, prosecute, or authorize to be
commenced against each other any claim or complaint, either at law or
in equity, or other administrative, licensing, or regulatory action or
proceeding against any person, group, or corporation covered by this
Mutual Release and Settlement based in whole or in part upon any
claim, demand, cause of action, obligation, damage, or liability which is
directly or indirectly related to the subject matter of this Release.
15
11. . . . It is further understood that this is a full and final release, and
[the parties] will not file any subsequent litigation in any other action.
12. All parties shall execute a stipulation of dismissal with prejudice
to dismiss the pending lawsuit, each party to bear his own costs and
attorneys’ fees.
13. The parties represent and warrant that at all times referred to in
the above-mentioned Action, no other persons have, or had, an interest
in the causes of action set forth therein and that they have not sold,
assigned, transferred, conveyed or otherwise disposed of any claim or
demand relating to any matter covered by this Release.
(Emphasis added.) These provisions are unambiguous and underscore the parties’
intent to settle and release, once and for all, any and all claims that had arisen during
the litigation or that could arise from the administration of their father’s trust, which
necessarily includes ownership of the Ranch.5 The plain language of the Settlement
Agreement is far-reaching, and none of its provisions suggest that any claims that had
arisen between the parties were exempted or not encompassed under the broad terms
of the agreement. Finally, a reasonable person would understand the agreement’s
provisions settling “all claims that could or did arise between the parties, known or
5
“[T]he context in which the contract was written, including [its] subject
matter, . . . purpose . . . and the circumstances surrounding its making,” supports the
conclusion that the parties’ intended to settle all claims between them. Am. Nat’l
Bank v. Sara, 246 P.3d 294, 297 (Wyo. 2011). In particular, the parties’ purpose in
entering the Settlement Agreement was to formalize the already agreed upon
settlement and release of claims set forth in the Basic Terms. The Settlement
Agreement itself indicates it is “based [in part] on . . . the terms of the [Basic Terms
agreement].” The Basic Terms included a provision settling “all claims that could or
did arise between the parties known or unknown,” and this same language is repeated
in the Settlement Agreement. And finally, after signing the Basic Terms, the parties
filed a joint status report to the district court stating that “[a]t th[e] mediation, the
Parties were able to reach a resolution concerning all claims between them.”
(Emphasis added.)
16
unknown,” and mutually releasing “all claims, whether known or unknown, past,
present, or prospective” to include all claims regarding ownership of the Ranch, as
such claims arose between the parties during the litigation and were central to their
dispute.6
Because the language of the Settlement Agreement is expansive, settling all
known or unknown claims that could or did arise between the parties, the district
court did not err in construing the agreement as a settlement and release of all claims
related to ownership of the Ranch, including Charles’s individual claim.
6
No party disputes that claims regarding ownership of the Ranch, including
Charles’s alleged individual interest, arose between the parties. The district court
made a factual finding on this point, concluding that Charles’s “claims and
contentions concerning ownership of the Larson Hereford Ranch lands and the
Larson Hereford Ranch Partnership are known claims that DID arise between the
parties to this case.” The record supports the district court’s determination.
For example, the Complaint contained allegations that the Partnership owned a
one-half interest in the Ranch, that Arnold A. Larson had acquired the Partnership
interests of Charles and David in order to transfer the entire Partnership and its one-
half interest in the Ranch to Arny, and that the terms of the Trust dictate Arny is to
receive all interests in the Partnership and Ranch. Although Charles initially admitted
in his Answer that “fifty percent of the Larson Hereford Ranch is owned by the
[Partnership],” he disputed the ownership of the Partnership and whether Arny should
have received the one-half interest in the Ranch previously held by the Catherine N.
Larson Trust. But in the JCMP, Charles changed his position and alleged that he may
have an individual interest in the Ranch because the 1988 deed is unclear as to
whether it “transferred the one-half interest [in the Ranch] to the Partnership or to the
General Partners thereto in their personal capacities.” Moreover, at oral argument,
Charles conceded that “it is true that the question of the ownership of the Hereford
Ranch did come into play” during the litigation, Oral Argument at 5:54–6:01, Larson
v. Larson, No. 16-8065 (10th Cir. Mar. 23, 2017), and agreed that everyone
acknowledged during negotiations that Charles had made a claim of individual
ownership in the Ranch, id. at 8:59–9:34. Therefore, it is unmistakably clear that
issues regarding ownership of the Ranch, including Charles’s individual claims, arose
between the parties during this litigation—and it is equally clear from the terms of
the agreement that the parties intended to settle all such claims.
17
B. The PowerPoint Presentation
Before the district court, Charles filed a Motion for Protective Order that
sought to bar Arny and Arla from obtaining, through discovery, the presentation used
by Charles’s counsel during the mediation. A magistrate judge denied the motion,
finding that the presentation was discoverable under Wyoming law and, in the
alternative, that it did not constitute a protected communication under Colorado law.
Shortly thereafter, at the evidentiary hearing held on May 19, 2016, the district court
admitted the presentation and related testimony into evidence, over Charles’s
objection. Finally, in its order construing the Settlement Agreement, the district court
relied, in part, on the presentation to determine that the agreement applies to the
Ranch. Charles asserts on appeal that the magistrate judge and district judge erred by
allowing the discovery and admission into evidence of the presentation. Although his
brief focuses primarily on the issue of discoverability, Charles also specifically
challenges the district court’s consideration of the presentation when construing the
terms of the Settlement Agreement. In response, Arny and Arla contend the
presentation is discoverable under Wyoming and Colorado law, and that the Federal
Rules of Evidence do not bar its admission into evidence. We review the magistrate
judge’s and district judge’s determinations for abuse of discretion. See Vehicle Mkt.
Research, Inc. v. Mitchell Int'l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016) (“[W]e
review a district court’s determination regarding the admissibility of evidence under
an abuse of discretion standard.” (internal quotation marks omitted)); Frontier Ref.,
18
Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998) (applying abuse of
discretion standard to district court’s order compelling discovery).
We first examine whether the magistrate judge erred in holding that the
presentation was discoverable. The parties dispute which State’s laws should control
this issue, as application of Colorado law leads to a different result than the
application of Wyoming law. In general, the Colorado Dispute Resolution Act
“protects as confidential” mediation communications7 that are “made in the presence
or at the behest of the mediator.” Yaekle v. Andrews, 195 P.3d 1101, 1110 (Colo.
2008); see also Colo. Rev. Stat. § 13-22-307. In contrast, Wyoming law expressly
allows discovery of confidential mediation communications when a party seeks
judicial enforcement of a purported mediated settlement agreement. See Wyo. Stat.
Ann. § 1-43-103 (stating that while a party normally “has a privilege to refuse to
disclose and to prevent all mediation participants from disclosing confidential
communications,” no privilege exists if “[o]ne of the parties seeks judicial
enforcement of the mediated agreement”). Although the parties conducted the
mediation in Denver, Colorado, and agreed in their mediation agreement that “[a]ll
communications, whether oral or written, made in the course of the mediation process
. . . are confidential by this agreement and the Colorado Dispute Resolution Act,
7
The Colorado Dispute Resolution Act defines mediation communications as
“any oral or written communication prepared or expressed for the purposes of, in the
course of, or pursuant to, any mediation services proceeding.” Colo. Rev. Stat.
§ 13-22-302(2.5).
19
C.R.S. 13-22-301, et[.] seq.,”8 the lawsuit was filed in Wyoming. As a result, the
magistrate judge applied Wyoming’s choice of law rules to determine which State’s
law should govern the discoverability of the presentation. Applying these rules, the
magistrate judge concluded that although Wyoming’s choice of law rules state that
“[t]he law of the state chosen by the parties to govern their contractual rights and
duties will be applied,” Res. Tech. Corp. v. Fisher Sci. Co., 924 P.2d 972, 975 (Wyo.
1996), this general rule was overridden by the longstanding principle that Wyoming
courts will “not apply another jurisdiction’s law ‘when it is contrary to the law,
public policy, or general interests of Wyoming’s citizens.’” Aplt. App. 663 (quoting
Res. Tech. Corp., 924 P.2d at 975). Therefore, the magistrate judge applied Wyoming
law and allowed discovery of the presentation.
We conclude the magistrate judge did not err in his decision. Rule 26 of the
Federal Rules of Civil Procedure provides that a party may discover any
nonprivileged matter relevant to the party’s claim or defense, as long as it is
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity
jurisdiction cases such as this one, “state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.” Fed. R. Evid. 501; see also
Frontier Ref., 136 F.3d at 699 (finding Rule 501 “provides that state law supplies the
rule of decision on privilege in diversity cases”). Here, to determine which State’s
8
The mediation agreement also contains limits to its confidentiality
provisions, stating that “evidence previously disclosed or known to a party, or that is
otherwise admissible or discoverable shall not be rendered confidential, inadmissible,
or not discoverable solely as a result of its use in the mediation.”
20
privilege laws control, we look to Wyoming’s choice of law rules. See R&G Elec.,
Inc. v. Devon Energy Corp., 53 F. App’x 857, 859 (10th Cir. 2002) (unpublished)
(“In diversity cases, we must apply the substantive law of the forum state, including
its choice of law rules.”); New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405,
409 (10th Cir. 1996) (stating in diversity jurisdiction actions “we apply the
substantive laws of the forum state, including its choice of law rules,” and that “[i]n
doing so, we must apply the most recent statement of state law by the state’s highest
court” (internal quotation marks omitted)).
Although Wyoming, the forum state in this case, has not expressly adopted
the entirety of the Restatement (Second) of Conflict of Laws (“Second
Restatement”), it regularly follows the Second Restatement’s approach in resolving
choice of law questions. R&G Elec., 53 F. App’x at 859; see also Res. Tech. Corp.,
924 P.2d at 975. “Under Wyoming choice of law rules, the law of the state chosen by
the parties to govern their contract presumptively applies.” R&G Elec., 53 F. App’x
at 859; see also Restatement (Second) of Conflict of Laws § 187. But Wyoming will
not apply the law of another state “when it is contrary to the law, public policy, or the
general interests of Wyoming’s citizens.” Res. Tech. Corp., 924 P.2d at 975; see also
R&G Elec., 53 F. App’x at 859 (“If . . . the parties select foreign law contrary to the
law, public policy, or the general interests of Wyoming’s citizens, Wyoming courts
will not enforce the parties’ choice of law provision.”); Restatement (Second) of
Conflict of Laws § 187 (“The law of the state chosen by the parties to govern their
contractual rights and duties will be applied . . . [unless] application of the law of the
21
chosen state would be contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the determination of the particular
issue.”). As the magistrate judge found, Wyoming and Colorado law directly conflict
with respect to whether confidential mediation communications are subject to
discovery when a party attempts to judicially enforce a settlement agreement.9
Compare Wyo. Stat. Ann. § 1-43-103, with Colo. Rev. Stat. Ann. § 13-22-307.10As a result, the magistrate judge did not err in applying Wyoming law and
allowing discovery of the presentation.
In addition to questioning the discoverability of the presentation, Charles
appears to challenge the district court’s decision to admit the presentation into
evidence during the hearing. Although Charles objected to the introduction of the
presentation at the hearing, he does not sufficiently raise this issue on appeal. Instead,
he merely notes that the district court “admitted the presentation into evidence over
Charles’ objection,” but “made no distinction in those rulings between whether such
9
Although Charles states in a conclusory manner that Colorado and Wyoming
law do not conflict, he offers no argument or law to support his contention.
10
A separate provision of the Second Restatement supports this result. Section
139(2) of the Second Restatement provides in relevant part:
Evidence that is privileged under the local law of the state which has the
most significant relationship with the communication [(Colorado)] but
which is not privileged under the local law of the forum [(Wyoming)]
will be admitted unless there is some special reason why the forum
policy favoring admission should not be given effect.
Restatement (Second) of Conflict of Laws § 139(2) (emphasis added).
22
materials were discoverable materials and/or additionally were admissible materials.”
Because Charles provides no reasoned analysis or citation to relevant authority, this
argument is inadequately briefed and therefore waived. Therrien v. Target Corp., 617
F.3d 1242, 1252–53 (10th Cir. 2010) (holding failure to raise an argument
sufficiently in the opening brief waives that argument); United States v. Pursley, 577
F.3d 1204, 1228 (10th Cir. 2009) (noting that because the appellant did not justify or
cite a single case in support of his position, the court was “free to end [its] inquiry by
applying the principle that arguments inadequately briefed in the opening brief are
waived” (internal quotation marks omitted)).
Furthermore, even if the district court had abused its discretion in admitting
the presentation, either because it should not have been subject to discovery or is
inadmissible under the Federal Rules of Evidence, the abuse would constitute
harmless error. Here, “reversal [of the district court] is not appropriate unless the
error prejudicially affected a substantial right of a party or if we reasonably conclude
that the exclusion [or admission] of . . . evidence led the [factfinder] to reach a
contrary result.” See Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 886 (10th Cir.
2006). The district court’s reliance on the presentation was cumulative of other
admissible evidence, including the Complaint, Answer, and JCMP. See Am. Nat’l
Bank, 246 P.3d at 297 (noting courts may consider evidence extrinsic to the contract
“to help ascertain what the parties intended when they made the contract”). These
admissible materials include evidence supporting the district court’s conclusion that
claims of ownership in the Ranch and Partnership, including Charles’s individual
23
claims, were not only “known claims that . . . ar[ose] between the parties to this
case,” but “were the main issues in the case” and therefore subject to the Settlement
Agreement. As a result, even if the district court had erred in considering the
presentation—an issue we do not decide—reversal on that ground would be
inappropriate because it did not prejudicially affect any of Charles’s substantial
rights and its exclusion would not have lead the district court to reach a contrary
result.
Finally, Charles’s argument that the district court’s consideration of the
presentation amounts to reliance on prohibited parol evidence is unavailing, as
Wyoming law permits consideration of extrinsic evidence to ascertain and confirm
the parties’ intent when entering a contract. See id.; In re Mark E. Dowell Irrevocable
Trust #1, 290 P.3d at 361.
C. The District Court’s Consideration of the JCMP
As is evident from the principles governing contract construction under
Wyoming law, Charles’s contention that the district court committed reversible error
by considering the JCMP is unavailing. It is undisputed the district court considered
the JCMP when making factual and legal determinations regarding the parties’ intent
and the scope of the Settlement Agreement. Wyoming law permits consideration of
such material when it provides information regarding the subject matter, purpose, and
circumstances surrounding the making of a contract. See Am. Nat’l Bank, 246 P.3d
at 297. The JCMP provides such information, as it details the claims and contentions
regarding distribution of the Trust, and ownership of the Ranch, raised during the
24
litigation and settled in mediation. As a result, the district court did not err in
considering it.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s construction
of the Settlement Agreement.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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