This opinion will be unpublished and
may not be cited except as provided by
IN COURT OF APPEALS
In re the Marriage of:
Georgene Jerilyn Holasek, petitioner,
Ward Edward Holasek,
Al Bennet, et al.,
Filed August 23, 2005
Carver County District Court
File No. F7-02-2086
Douglas J. Nill, Douglas J. Nill
James L. Berg, 1059 Stoughton Avenue, P. O. Box 85, Chaska, MN 55318 (for respondent Ward Edward Holasek)
Mark B. Rotenberg, General Counsel, Tracy M. Smith, Associate General Counsel, University of Minnesota, 360 McNamara Alumni Center, 200 Oak Street S.E., Minneapolis, MN 55455 (for respondents Al Bennet, et al.)
Considered and decided by Kalitowski, Judge; Worke, Judge; and Parker, Judge.[*]
U N P U B L I S H E D O P I N I O N
In this appeal from a dissolution judgment, appellant-wife Georgene Jerilyn Holasek argues that the district court’s errors prevented her from exercising her right to purchase real property from respondent-husband Ward Edward Holasek. Because the district court properly applied the law, did not make findings unsupported by the record, and did not otherwise abuse its discretion, we affirm.
During their marriage, the parties became joint owners of a homestead and farm property. In March 2002, appellant petitioned to dissolve the parties’ marriage, and trial was set for April 19, 2004. Before that date, the parties agreed to use mediation services provided by The Minnesota Farmer-Lender Mediation Act to farm owners having their marriage dissolved. In January 2004, the parties entered into an Agreement to Begin Voluntary Mediation, and on April 8, 2004, the parties reached an agreement memorialized in a Draft Mediation Agreement (DMA) that was contingent on the approval of each party’s counsel. The DMA contained five paragraphs, three of which were germane in subsequent proceedings regarding the real property. Those paragraphs state:
Paragraph 1: [Respondent] agrees to pay [appellant] the sum of $1.4 Million dollars or provide a certified letter of guaranteed funds on or before April 19, 2004.
Paragraph 2: [Respondent] agrees to pay all existing accounts payable per “Attachment A” as prepared by [the] financial analyst.
Paragraph 3: [Respondent] agrees that if he fails to perform issues described in item #1 and #2 above, that he will accept from [appellant] the amount of $750,000.00 minus one-half of the accounts payable as described in “Attachment A.”
If respondent performed under paragraphs 1 and 2, he was to receive the real property. If he did not perform under those paragraphs, appellant had the option to purchase the real property from respondent. On April 13, 2004, the parties’ counsel exchanged letters confirming their approval of the DMA, and appellant’s counsel suggested in his letter that the parties plan to appear on the scheduled trial date to address when respondent must satisfy paragraph 2 of the DMA. On April 19, 2004, respondent delivered to appellant’s counsel a $1.4 million cashier’s check, and it is undisputed that this check satisfied respondent’s obligation under paragraph 1 of the DMA. Trial was then postponed to June 2004.
At the June hearing, appellant moved to “enforce” the DMA and “adopt [appellant’s] draft Marital Termination Agreement or, alternatively” to “rescind the [DMA] and schedule trial” and to “compel respondent to respond to discovery[.]” By order signed July 14, the district court found that the parties and their counsel had entered into and approved the DMA (respectively), that respondent complied with paragraph 1 of the DMA, and that respondent was prepared to satisfy paragraph 2 of the DMA. The district court then ruled that the fact that respondent had yet to satisfy paragraph 2 of the DMA did not constitute a breach of the DMA because the DMA did not specify a deadline for satisfying paragraph 2, granted appellant’s motion to enforce the DMA, and ordered respondent to pay the debts within ten days of receipt of the court’s order.
In a subsequent attempt to establish that respondent breached the DMA by not satisfying paragraph 2 by April 19, 2004, appellant moved the district court to take testimony from the mediator and financial analyst involved in the preparation of the DMA, and served the mediator and the analyst with subpoenas directing them to testify and to produce a copy of the parties’ mediation file at a July 21 hearing. Appellant argued that this would show that the April 19 compliance date for paragraph 1 also applied to paragraph 2. The mediator and analyst moved to quash the subpoenas and, by order signed July 22, the district court denied appellant’s motion to take testimony from the mediators and quashed the subpoenas, stating that the parties’ mediation agreement granted the mediators “immunity” from testifying and that, in light of the July 14 order, the testimony appellant sought was irrelevant.
On August 12, the district court issued another order. The record is unclear whether a formal motion prompting the order was filed, but the order states that “correspondence dated August 10, 2004 from the [appellant’s] attorney” would be treated under Minn. R. Gen. Pract. 115.11 as a “request for reconsideration” of the orders of July 14 and 22. The August 12 order then denied the request for reconsideration, and a judgment adopting the DMA and dissolving the parties’ marriage was entered. The judgment concluded that respondent had complied with paragraphs 1 and 2 of the DMA and granted respondent all right, title, interest, and equity in the disputed real estate. On August 20, 2004, appellant moved “for a trial and amended findings pursuant to Minn. R. Civ. P. 59 and 52.02[.]” At the resulting hearing, appellant argued that she should be granted a trial to present testimony of the parties and the mediators. The district court denied appellant’s motion.
D E C I S I O N
Respondent’s Failure to Pay Debts by April 19, 2004
Appellant challenges the district court’s refusal to rescind the DMA,
arguing that it was ambiguous regarding the date by which respondent was to
comply with paragraph 2. The district
court’s rejection of this argument is essentially a determination that the DMA
was not ambiguous on this point. A mediated settlement agreement is a contract and
is subject to rules of contract interpretation and enforcement. Theis v. Theis, 271
Here, paragraph 2 of the DMA lacks a date by which respondent must make the payments mentioned therein.
Where a contract is silent as to the time of performance, the law implies that it was to be performed within a reasonable time; and, if the contract be in writing, parol evidence of an antecedent or contemporaneous oral agreement is inadmissible to vary the construction to be thus legally implied from the writing itself.
Liljengren Furniture & Lumber Co. v. Mead, 42
Apparently aware that the district court would impose a reasonable time
for respondent to comply with paragraph 2, appellant argued at the June 17
hearing that respondent had not complied with paragraph 2 within a reasonable
time because, to that date, he had not yet made the payments. What constitutes a reasonable time depends on the act to be
done, the nature of the contract, and all related circumstances. Tingue
v. Patch, 93
Appellant’s affidavit states that she understood that respondent was required
to satisfy paragraph 2 by April 19, 2004, and that evidence from the mediators
would support her understanding. On
appeal, she argues that her affidavit was uncontested and should have been deemed
conclusive evidence on this point, and therefore that the district court was
required to rule in her favor. Appellant
then infers that, because the district court ruled against her, the district
court must have improperly relied on the arguments of respondent’s counsel as
evidence. We reject this argument for
three reasons. First, “[a]lthough made under oath, an affidavit is
ordinarily not considered competent evidence because of the lack of opportunity
to cross-examine the affiant.” Saturnini v. Saturnini, 260
Denial of Appellant’s Request for a Trial and Amended Findings
On August 20, appellant filed a “motion for a trial and amended
findings pursuant to Minn. R. Civ. P. 59 and 52.02,” seeking an opportunity to
present the testimony of the parties as well as the mediator and financial
analyst to confirm that April 19 was the date by which respondent was to
satisfy paragraph 2. While rule 59 lists
bases for seeking a new trial, a
motion for a new trial is “an anomaly” where there has been no trial. Erickson
v. Erickson, 430 N.W.2d 499, 500 n.1 (
The portion of
appellant’s motion seeking amended findings under rule 52.02 sought findings
that the deadline for respondent’s compliance with paragraph 2 was April 19,
and a trial in which the parties and the mediators would testify and confirm
that April 19 was the deadline. Denial
of a motion for amended findings is reviewed for an abuse of discretion. Bains
v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 271 (Minn. App.
1993), review denied (
Quashing Subpoenas of Mediator and Financial Analyst
challenges the district court’s quashing of the subpoenas issued to the
mediator and financial analyst. Whether
to quash a subpoena is discretionary with the district court. Phillippe v. Comm’r of Pub. Safety,374
N.W.2d 293, 297 (
Request for Discovery
Appellant challenges the district
court’s refusal to order respondent to produce his “agreements” with outside
investors in the real property, arguing that the property was marital, and
therefore, the agreements impacted the marital estate. The district court “has wide discretion to issue discovery orders
and, absent clear abuse of that discretion,” an appellate court will not
disturb a discovery order. Shetka v. Kueppers,
Kueppers, Von Feldt and Salmen, 454 N.W.2d 916, 921 (
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.