from the District Court of the Third Judicial District of the
State of Idaho, Canyon County. Hon. Davis F. VanderVelde,
judgment of the district court is affirmed.
Pickens Cozakos, PA., Boise, for appellant. Shelly Cozakos
Rossman Law Group, PLLC and Barnum Howell & Gunn, PLLC,
Boise, for respondent. Matthew Gunn argued.
appeal relates to a purported agreement resolving a lawsuit
between Kevin Seward and Musick Auction, LLC
("Musick"). Seward claimed that the parties entered
into a binding oral settlement agreement and he moved to
enforce the agreement. The district court granted
Seward's motion. Musick's appeal contends that the
district court erred in several respects when it held that
the parties had entered into a binding settlement agreement.
FACTUAL AND PROCEDURAL BACKGROUND
began working for Musick in August of 2014 and was terminated
on February 5, 2015. Thereafter, Seward made a written demand
for wages that he claimed to be owed. Musick disputed
Seward's claim that he was an employee and asserted that
Seward had been paid all sums owed to him as an independent
filed a complaint on May, 8, 2015, in which he alleged that
Musick violated the Wage Claim Act, Idaho Code section
45-601, et seq. The district court ordered the
parties to mediate. Judge Stephen Dunn served as the
mediator. Kimberly Williams represented Seward in the
mediation and Musick, acting through its managing member,
Roger Worley, was represented by Brian Webb. Following the
mediation, Judge Dunn went into court with the parties and
read the terms of the parties' agreement into the record.
No court reporter was present. Because of a technical
error-the audio was muted-the proceedings were not
successfully recorded. Thus, the court minutes represent the
only record of the proceedings. The minutes state, in
The Court noted the parties had reached a settlement
agreement and stated the terms and conditions of the
agreement for the record.
In answer to the Courts [sic] inquiry, each of the parties
and their counsel concurred with the settlement agreement as
set forth on the record by the Court.
The Court noted the settlement agreement entered into
resolved the case and it would notify the assigned Judge of
The Court directed Mr. Webb to submit necessary documents to
dismiss the case, including a release.
sent a draft settlement agreement and release to Williams for
her review. The draft contained terms which Seward claims
were not discussed during the mediation. These terms included
a confidentiality clause, a stipulation that Seward had been
an independent contractor rather than an employee, and a
requirement that Seward's wife be a party to the
agreement (collectively "the additional
terms"). The draft resulted in an exchange of email
between the parties' attorneys. As will be seen, the
tenor of the discussions rapidly changed. The following is
Williams: I received the proposed settlement
agreement provided by your legal assistant. However, there
are a few changes that need to be made before Mr. Seward can
sign it. There are several items included that were not
bargained for, nor agreed upon during the mediation. As we
did not receive this draft until after the two week period
your client agreed to on record in the hearing conducted on
October 28th, please provide a revised copy as soon as
possible, but no later than noon on November 20, 2015.
1. Remove Hailey Seward's name from the agreement
entirely, including the signature block.
2. Recital paragraph 1 change from "asserting they are
entitled to" and replace with "asserting a claim
3. Agreement paragraph B,  change the date from November 12th to
November 20, 2015.
4. Agreement paragraph C,  remove the last sentence.
5. Agreement paragraph F,  remove in its entirety.
please have the check made out to Rossman Law Group, PLLC in
trust for Kevin Seward. Once the agreement is signed we will
be happy to send our runner to your office to pick it up.
Feel free to contact me if you have any questions.
Webb: My client will not sign without F.
Please ask your client to reconsider.
Williams: That was not a term discussed at
the mediation. If your client's position is that he is
going to breach the settlement agreement, we can certainly
contact Judge Dunn regarding how to proceed.
Webb: Part of the agreement [was] that
Musick was going to put together a formal document. It was my
client's understanding that the future documents would
include a confidentiality provision, which is customary, as
is other provisions that were not discussed in detail but
that are customarily included in settlement agreements.
Moreover, given that Hailey was allowed to participate and
this is a CP state, she probably should sign the settlement
agreement as well. I am not sure what Judge Dunn is going to
do. If your client wishes to asset [sic] a claim for breach
of the settlement agreement then Judge Dunn won't really
Williams: Yes, you were tasked with drafting
the agreement pursuant to the terms discussed at mediation
and on the record at the hearing. While certain provisions
such as integration and counterpart signature clauses are
standard language in these agreements, confidentiality is
always a negotiated term. By no means can it be assumed to be
a term of the agreement without being expressly negotiated.
The fact that Hailey was at the mediation does not make her a
party and there is no basis whatsoever for requiring her
Webb: Kimberly - does your client really
object to a confidentiality provision? My client will not
require Hailey to sign if he will agree to it. Did Kevin tell
you about his journal he left at Musick before he left? It
seems that confidentiality is something he would want in this
Williams: Does your client have a copy of
Mr. Seward's journal? I am highly offended by your
not-so-veiled threat to reveal personal information regarding
my client's private life in order to extort an additional
term which was not negotiated at the mediation. While I have
no basis to expect better of your client, this is highly
improper behavior for a member of the bar to be participating
in. The journal was in no way related to Mr. Seward's
work for Musick Auction, and certainly is not related to Mr.
Seward's litigation against Musick Auction. My client
does object to the confidentiality agreement, and you have no
basis whatsoever to request that Mrs. Seward sign any
settlement agreement based upon this litigation. The fact
that Idaho is a community property state is the reason for
the language in Paragraph A of the settlement agreement.
Mr. Seward is prepared to sign the settlement agreement with
the revisions sent to you previously. Please have the revised
agreement to me by Wednesday, December 2nd, at 12:00 p.m.
Otherwise we will have to move forward with the litigation of
Again, please have the check made out to Rossman Law Group,
PLLC in trust for Kevin Seward.
Webb: Kim - while I understand why you may
think I was extorting the situation, that was not my intent.
I was merely trying to convey that, given the circumstances,
and the lack of agreement to a confidentiality, it can only
be supposed that your client intends to disparage mine, in
which instance, one could be worried about whether there
would be a response, and this would be a way he could prevent
that (although that is not something I would condone, or my
client for that matter). It was more for your client's
peace of mind. A confidentiality provision would be good for
Additionally, my client is seeking advice from separate
counsel. He and they have asked for an extension to tomorrow
at noon to consider your demand. Although it is passed the
noon deadline already, I would ask that you hold off until
tomorrow before taking additional action in the event my
client will agree. Please advise.
Williams: Thank you for the explanation. My
client has no intention of disparaging Mr. Worley. We do
agree to the extension.
Webb: Unfortunately, my client will not sign
without a confidentiality agreement. Obviously, his position
is that there was not a meeting of the minds on that issue.
If your client won't agree to it, then please proceed as
you have indicated. He will likely be proceeding with
Williams: I have spoken with Mr. Seward, he
will include a confidentiality agreement upon the following
First, the language in F needs to be amended as follows:
"The Parties agree that they will not disclose the
terms of this Agreement with any individuals or third
parties, except tax advisors, or other professional
consultants. Further, the Parties agree that hereafter they
will not disparage any other Party or tend to impede their
ability to transact business. As the Parties are currently
business competitors in the same and/or similar business,
and in the same geographic area, ...