This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.03, subd. 3 (2004).






In re the Marriage of:

Georgene Jerilyn Holasek, petitioner,





Ward Edward Holasek,



Al Bennet, et al.,



Filed August 23, 2005


Worke, Judge


Carver County District Court

File No. F7-02-2086


Douglas J. Nill, Douglas J. Nill P.A., 1100 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN  55402 (for appellant)


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

WORKE, Judge

            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.   


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 Minn. 199, 204, 135 N.W.2d 740, 744 (1965); Chalmers v. Kanawyer, 544 N.W.2d 795, 797 (Minn. App. 1996) (stating settlement agreements are contractual in nature and are binding on the parties).  Ambiguity exists when contract language is reasonably susceptible to more than one interpretation.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998).  Whether a contract is ambiguous is a legal question reviewed de novo.  Republic Nat’l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979). 

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 Minn. 420, 424, 44 N.W. 306, 308 (1890).  Thus, the mere lack of a performance date is not fatal to the DMA.  Additionally, appellant’s argument that the parties intended April 19 to be the compliance deadline for paragraph 2 and that the omission of the deadline was a result of the inadvertence of the mediators is not supported by the record.  The record shows (1) the parties signed the DMA on April 8, 2004, after almost three months of mediation, meaning there was ample time to put a compliance date in paragraph 2 of the one-page DMA if the parties intended to do so; (2) appellant signed the DMA, presumably after reading it, and her attorney, who stated that respondent had a “reasonable time” to comply with paragraph 2 but did not mention an April 19 deadline, approved the DMA after having five days to review it; (3) in his April 13 letter approving the DMA, appellant’s counsel suggested that the parties discuss the time for respondent’s performance of paragraph 2 at the then-scheduled April 19 hearing, signifying that, as of April 13, there was no agreed-upon date for respondent’s performance of paragraph 2; (4) appellant’s draft MTA, which she asked the district court to approve in her June 2004 motion, includes a provision that would require respondent to pay the debts mentioned in paragraph 2 by May 31, 2004; and (5) at the June 2004 hearing, not only did appellant not argue that the mediator failed to include a performance deadline for paragraph 2 in the DMA, but appellant’s counsel stated that the only thing that the DMA left unanswered was the issue of household furnishings.  Thus, even if paragraph 2 of the DMA were deemed ambiguous, we cannot say that this record supports a determination that the parties agreed that April 19, 2004, was the date by which respondent had to comply with paragraph 2.  

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 Minn. 437, 441, 101 N.W. 792, 794 (1904).  After the hearing, the district court found that respondent had not complied with paragraph 2 of the DMA because appellant did not provide respondent with addresses for creditors until June 4, and because there was a discrepancy in the amount owed to one creditor.  Because respondent lacked knowledge of where the payments were to be sent as well as the total amount owed, appellant has not shown that the district court clearly erred in finding that respondent had not breached the reasonable-time-for-performance provision read into the DMA.  See Minn. R. Civ. P. 52.01 (stating findings of fact shall not be set aside unless clearly erroneous); Bly v. Bublitz, 464 N.W.2d 531, 535 (Minn. App. 1990) (stating generally, “what constitutes a reasonable time for the performance of contract obligations is a question of fact or mixed law and fact for determination by the [fact finder]”).  We note that this analysis also addresses appellant’s argument that respondent’s failure to comply with paragraph 2 of the DMA constituted a breach of the DMA.   

Affidavit Testimony


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 Minn. 494, 495, 110 N.W.2d 480, 481 (1961).  Second, “[t]he finder of fact is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility.”  Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987).  As noted above, not only does the record simply not support a determination that the parties agreed that respondent would satisfy paragraph 2 by April 19, but, through no fault of his own, respondent lacked the information necessary to comply with paragraph 2 until sometime in June 2004.  Third, there is nothing in the district court’s findings or conclusions showing that it improperly relied on information outside the record in making its ruling.  Therefore, to adopt appellant’s argument, this court would have to assume that the district court erred by relying on the statements of counsel as evidence.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (applying Loth).

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 (Minn. App. 1988).  Because there was not a trial here, appellant cannot seek a “new” trial under rule 59, and the district court did not abuse its discretion by denying appellant’s motion for a “new” trial.  Cf. Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975) (stating, in reviewing denial of a new trial motion, appellate court determines not whether the district court might properly grant a new trial, but whether the district court violated clear legal rights or manifestly abused its discretion by refusing to grant a new trial). 

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 (Minn. Apr. 20, 1993).  Because rule 52.02 does not address whether to hold a trial, the district court did not abuse its discretion by denying the portion of appellant’s motion for amended findings seeking a trial under Minn. R. Civ. P. 52.02.  Similarly, because the record supports the district court’s determination that respondent should be given a reasonable time to perform under paragraph 2 and does not support a determination that the parties agreed to an April 19 performance date for paragraph 2, the district court did not abuse its discretion by denying the remainder of appellant’s motion for amended findings.       

Quashing Subpoenas of Mediator and Financial Analyst


Appellant 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 (Minn. App. 1985).  When the parties agreed to mediate under the Farmer-Lender Mediation Act, the agreement they signed stated that “[t]he mediator is not a witness to the parties’ negotiations and may not be required to testify in any proceeding subsequent to the mediation.”  Appellant concedes that the parties agreed that the mediators would not be called upon to testify; however, appellant argues that because there is an ambiguity in the DMA, the mediators should testify to clarify the matter.  Appellant cites Minn. Stat. § 583.26, subd. 7(b) (2004), and Minn. Stat. § 595.02, subd. 1(l) (2004), to support her argument, alleging that both statutes allow a mediator to be called to testify when an agreement needs to be set aside or reformed.  We reject this argument because (1) Minn. Stat. § 583.26, subd. 7(b) is entitled “Mandatory mediation proceedings,” and here the parties engaged in “Voluntary mediation proceedings” under Minn. Stat. § 583.25 (2004); and (2) both Minn. Stat. § 583.26, subd. 7(b) and Minn. Stat. § 595.02, subd. 1(l) refer to allowing the parties to testify, but do not state or suggest that a mediator can be called to testify.  Thus, the statutes appellant cites do not alter the parties’ agreement not to call the mediators to testify.  The district court did not abuse its discretion by quashing the subpoenas where there was no authority cited to the district court allowing the mediators to testify.   


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 (Minn. 1990).  While the DMA gave appellant a contingent right to receive the property, she could exercise that right only if respondent failed to comply with the first two paragraphs of the DMA.  It is undisputed that respondent complied with paragraph 1.  Although respondent had yet to comply with paragraph 2 of the DMA at the time of appellant’s motion to compel, the terms of paragraph 2 are the subject of this litigation.  Because appellant’s interest in the property was contingent on respondent failing to comply, and because the terms with which respondent must comply are currently in litigation, the district court did not abuse its discretion when it denied appellant’s request for discovery.  


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.