This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Tam D. Vo,



Honeywell, Inc., a Delaware corporation,


Filed January 20, 1998


Crippen, Judge

Hennepin County District Court

File No. 958085

J. Poage Anderson, Stephen Chippendale, Nichols Kaster & Anderson, 4644 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Robert Zeglovitch, Nancy E. Brasel, Leonard Street and Deinard, Suite 2300, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Presiding Judge, Crippen, Judge, and Forsberg, Judge.[*]



Appellant Tam D. Vo challenges the trial court's enforcement of an oral settlement agreement, contending that a) the agreement was concluded by one of appellant's attorneys who exceeded his authority, and b) settlement agreements are governed by statutory provisions that are satisfied only by a writing. We affirm.


In May 1995, appellant initiated a lawsuit, contending that respondent Honeywell had perpetrated a human rights violation. During the time pertinent to this proceeding, attorney Richard Malacko represented appellant in his civil claims. One year later, a month after mediation had commenced in the civil action, appellant filed a workers' compensation claim based on the same facts; for this claim, appellant was represented by attorney Paul Dinger.

The trial court found that in a September 1996 mediation session, with both attorneys present, "it was understood by all parties that the settlement discussions were to focus on a full and final settlement of all of Plaintiff's claims against Honeywell." Additionally, respondent advised Malacko prior to the session that "any settlement would have to resolve all of his claims." Failing to reach a final agreement during the September session, the mediation proceedings continued until the end of October, when a verbal agreement was reached. In these subsequent proceedings attorney Dinger was absent, but the evidence shows that he agreed Malacko would continue to negotiate for a global settlement figure.

On October 25, in a three-way telephone conversation between appellant, Malacko, and the mediator, appellant agreed to a global settlement of all of his claims and expressly stated he understood and assented to the offer. Respondent Honeywell sent a draft of the agreement to Malacko on November 5. Over two months later, on January 13, 1997, respondent was advised that appellant intended to proceed with his workers' compensation claim. In April 1997, the trial court ordered enforcement of the settlement agreement.


1. Authority

Appellant contends that Malacko was never authorized to settle all of appellant's claims, concentrating on the fact that he was retained in the civil and not the workers' compensation action. Malacko's original retainer is not a governing consideration. The evidence fully supports the trial court's findings that Malacko was authorized to negotiate a global settlement and that such an agreement was reached and approved by Malacko and by appellant himself. The workers' compensation attorney was involved in the initiation of mediation and, while not included in the October telephone conference, was consulted and updated by Malacko as to the proceedings. There is ample evidence permitting the trial court's findings and conclusion that the global settlement agreement was authorized and approved by appellant.

2. Minnesota Human Rights Act

Minn. Stat § 363.031, subd. 2 (1996), which provides for the right to rescind a waiver of human rights remedies, refers to events before and after "execution" of an agreement occurs. Appellant contends that for an agreement to be executed, it must be in writing. "Execution" is not such a precise term. See Ghostley v. Hetland, 295 Minn. 376, 378, 204 N.W.2d 821, 823 (1973) (holding that it is not essential for a settlement agreement to be in writing). Execution encompasses many forms of making or completing an agreement. Nothing in the statute precludes the common law acceptance of oral agreements.

3. Minnesota Civil Mediation Act

"`Mediated settlement agreement' means a written agreement setting out the terms of a partial or complete settlement of a controversy identified in an agreement to mediate, signed by the parties, and dated." Minn. Stat. § 572.33, subd. 4 (1996). If the statute applies to the agreement in this case, it plainly contemplates the eventual occurrence of a written stipulation agreement. It is nevertheless clear that the statute contains no language that would supercede common law principles on the enforceability of a proper oral agreement. To the contrary, the act expressly declares that "[t]he effect of a mediated settlement agreement shall be determined under principles of law applicable to contract." Minn. Stat. § 572.35, subd. 1 (1996).

Appellant points to the following language in Minn. Stat. § 572.35, subd. 1 (1996) to support his argument that a writing is required:

A mediated settlement agreement is not binding unless it contains a provision stating that it is binding and a provision stating substantially that the parties were advised in writing that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) they should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights.

Respondent contends and the trial court agreed that the aim of the quoted language is to protect a party from entering into a stipulation without knowledge or understanding of their rights and the effects of the agreement. The trial court correctly noted the impact of Haghighi v. Russian-American Broadcasting Co., 945 F. Supp. 1233 (D. Minn. 1996), where the presiding judge, albeit in a case involving a written agreement, determined that the agreement was no less valid for the fact that it did not contain the mandated statutory provisions, because both parties were represented by counsel in negotiating and concluding the agreement. Pertinent to this case is the observation in Haghighi that "where both parties are represented by counsel and are fully aware of the binding effect of a settlement agreement" noncompliance with Minn. Stat. § 572.35 "does not bar enforcement of the alleged settlement." Id. at 1234-35. Likewise, the trial court correctly determined in this case that the demands of the language have little force and effect where the settlement agreement was concluded by parties both represented by counsel.

4. Minnesota Workers' Compensation Act

As written, the global agreement does not purport to constitute a formal satisfaction of the Workers' Compensation Act. In fact, the agreement contemplates that there may be no pursuit of the workers' compensation claim. It simply gives appellant the discretion to choose, if any, what portion of the agreement will be allocated to the workers' compensation claim. The burden is left with appellant to ratify the settlement with the Department of Labor and Industry if he chooses to invoke relief under the Workers' Compensation Act.


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