DAVID A. KOSMANN, Plaintiff-Appellant,
KEVIN DINIUS, an individual; DINIUS & ASSOCIATES, PLLC, an Idaho professional limited liability company, Defendants-Respondents.
from the District Court of the Third Judicial District of the
State of Idaho, Canyon County. Hon. Gene A. Petty, District
judgment of the district court is affirmed in part and
reversed in part.
Messerly Law, PLLC, Boise, for Appellant. Loren K. Messerly
Anderson, Julian & Hull, LLP, Boise, for Respondents.
Yvonne A. Dunbar argued.
Kosmann appeals from a judgment of the district court. He
asserts that the district court erred in enforcing an oral
settlement agreement reached in mediation between Kosmann,
Kevin Dinius, and Dinius & Associates, PLLC (collectively
"Dinius"). Kosmann also assigns error to the trial
court for (1) awarding attorney fees to Dinius as a sanction
against Kosmann and his attorney, (2) declining to impose
sanctions against Dinius and his attorney, and (3) striking
an untimely memorandum and declaration in support of his
motion to reconsider. He further requests that the Court
award him attorney fees on appeal. For the reasons stated
below, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
retained Dinius to represent him in a dispute with a third
party concerning the sale of real property. Following trial,
Kosmann was awarded a judgment of approximately $32, 000. The
opposing party appealed. Kosmann had difficulty paying
Dinius's attorney fees, so Dinius withdrew from
representation and filed a lien for his attorney fees against
the judgment. Kosmann then hired Loren Messerly to replace
Dinius as his attorney throughout the appeal. The judgment
was ultimately affirmed on appeal. Kosmann v.
Gilbride, 161 Idaho 363, 386 P.3d 504 (2016). One month
later, Kosmann filed a lawsuit against Dinius alleging claims
of professional negligence and breach of contract. Dinius was
represented by Yvonne Dunbar.
trial court ordered mediation and appointed a
mediator. The mediation occurred on July 26, 2017.
After several hours of contentious negotiations, the parties
reached a tentative agreement to settle the dispute by having
Dinius make a payment of $40, 000 to Kosmann.However, before
the agreement was final, Messerly met in the hallway with
Dunbar and requested an additional term: a release of all
potential claims by Dinius against Messerly.Dunbar and Dinius
refused, stating that they believed it was unethical for
Messerly to make such a request. The request caused a
considerable delay in the mediation while the attorneys
contacted and spoke with counsel from the Idaho State Bar
regarding the ethical concern. Eventually, Messerly dropped
his request and instructed Kosmann to inform the mediator
that he would accept the original proposed settlement of $40,
000 without the release for Messerly.
left the room alone and went into the hall to inform the
mediator that he was willing to accept the settlement
agreement without the release. However, in addition to
conveying his decision, Kosmann asked the mediator if he
(Kosmann) could meet one-on-one with Dinius. Messerly claims
that he was unaware that Kosmann was going to make this
request. Without informing Messerly, the mediator
communicated Kosmann's wish to Dinius. Dinius initially
refused, but claims that after repeated urging from the
mediator, he acquiesced and agreed to meet alone with
Kosmann. Neither Dinius nor Dunbar were informed that
Messerly was unaware of the meeting. During the meeting,
Dinius and Kosmann agreed to settle their dispute for
approximately $32, 000 (the amount held by the court in the
property sale dispute between Kosmann and the third party),
with the stipulation that Dinius would not pursue litigation
about twenty minutes had passed without Kosmann's return,
Messerly went into the hallway to see what was going on. At
that time, the mediator informed him that Kosmann and Dinius
were having a private discussion. Messerly expressed concern
over the meeting because Dinius was an attorney and should
not have been speaking to Kosmann without Messerly being
present. However, the mediator reportedly advised him that
the parties to a mediation are allowed to meet alone, if they
wish. Soon thereafter, Kosmann returned and informed Messerly
of the new settlement terms. At that point, Messerly advised
Kosmann that he could either adhere to the renegotiated
settlement agreement and end the litigation or continue to
pursue the $40, 000 settlement. Kosmann chose to end the
parties and their counsel then put the renegotiated
settlement agreement on the record. Messerly noted on the
record that Kosmann initially agreed to settle the matter for
$40, 000, but that after the private meeting with Dinius,
which Messerly did not consent to, Kosmann agreed to settle
for approximately $8, 000 less in exchange for the release
for Messerly. Messerly further stated that he had advised
Kosmann not to request the release and that due to ethical
considerations he did not want to be included in it.
Nevertheless, despite his protestations, Messerly never
objected to the revised terms of the settlement. In fact,
when it was Dinius's turn to speak, Messerly intervened
to ensure that Dinius mentioned "the other part of the
deal" on the record-his agreement not to pursue any
claims against Messerly. After it was apparent that an accord
had been reached, the mediator asked Dinius's attorney,
Dunbar, to "take the lead" in drafting the
stipulation and a proposed order of dismissal.
weeks following the mediation, Dunbar submitted several
drafts of a proposed Mutual Release and Settlement Agreement
to Messerly. Messerly disagreed with multiple sections of the
agreement and proposed his own language. With the parties at
an apparent impasse, Dunbar obtained a transcript of the oral
settlement agreement put on the record at the conclusion of
mediation to confirm that her draft of the agreement was
consistent with the terms of the oral agreement. Messerly
rejected Dunbar's suggestion that his client share in the
cost of the transcript, authoring several heated emails to
Dunbar before ultimately advising her that Kosmann had
decided to back out of the settlement agreement. As a result,
Dinius filed a motion to enforce the oral settlement on
August 2, 2017. The following day, Kosmann filed a
cross-motion to enforce the $40, 000 settlement that the
parties agreed to before Dinius met with Kosmann. The
district court held a hearing on both motions on August 31,
after the hearing-and without leave from the court-Kosmann
filed a supplemental brief in support of his motion to
enforce the settlement agreement. The following week, Dinius
filed a motion to strike Kosmann's supplemental brief on
the basis that it was untimely and filed without leave. Two
days after Dinius filed his motion to strike, Kosmann filed a
corrective Motion for Leave to File Supplemental Material.
The district court granted Kosmann's motion and took the
supplemental brief under advisement. On November 3, 2017, the
district court issued a memorandum decision in which it
enforced the oral settlement agreement that was put on the
record at mediation.
the parties had filed cross-motions for sanctions. Kosmann
argued that Dinius violated Idaho Rule of Professional
Conduct 4.2 by meeting with him alone and that the district
court should use its inherent authority to impose sanctions
against Dinius for that ethical violation. He also argued
that Dinius violated Idaho Rule of Civil Procedure 11(b) by
filing (and not withdrawing) the motion to enforce the oral
settlement agreement that he believed resulted from
Dinius's alleged breach of Rule 4.2. Dinius also argued
for sanctions against Kosmann pursuant to I.R.C.P. 11(c) on
the basis that Kosmann's motions to enforce the
settlement and for sanctions were frivolous and unwarranted
by existing law or fact. He also requested payment for one
hour of billable time as a sanction against Kosmann and
Messerly on the basis that he was forced to file a motion to
strike Kosmann's untimely supplemental brief.
district court denied Kosmann's motion for sanctions on
the bases that Dinius's motion to enforce the settlement
did not violate I.R.C.P. 11 and that even if Dinius violated
Rule 4.2, the Idaho Rules of Professional Conduct do not
provide a legal basis for a trial court to impose sanctions
for alleged ethical violations. It partially denied
Dinius's motion for sanctions to the extent that it found
that Kosmann's arguments were not frivolous or
unwarranted, but granted the motion in regard to payment for
the one hour of billable time Dunbar spent on the motion to
strike Kosmann's untimely supplemental brief. The
district court's stated reason for granting that sanction
was that the brief was not warranted under existing law. It
then issued a final judgment in the case.
December 5, 2017, Kosmann filed a motion to reconsider the
court's decisions regarding enforcement of the settlement
agreement and the imposition of sanctions. However, he failed
to file his memorandum and declaration of counsel in support
of the motion within the timeline prescribed by I.R.C.P.
11.2(b). Consequently, Dinius filed a motion to strike
Kosmann's untimely filings. On January 24, 2018, the
district court issued its Memorandum Decision and Order on
Plaintiff's Motion to Reconsider and Defendants'
Second Motion to Strike in which it struck Kosmann's
untimely filings and denied Kosmann's motion to
reconsider in its entirety. Kosmann timely appealed.
STANDARD OF REVIEW
Court has frequently stated that '[a] motion for the
enforcement of a settlement agreement is treated as a motion
for summary judgment when no evidentiary hearing has been
conducted.'" Seward v. Musick Auction, LLC,
164 Idaho 149, ___, 426 P.3d 1249, 1255 (2018) (quoting
Budget Truck Sales, LLC v. Tilley, 163 Idaho 841,
845-46, 419 P.3d 1139, 1143-44 (2018)). "Such a motion
seeks specific performance of the settlement agreement or a
declaration of the rights of the parties. As these claims for
relief lie in equity, there is no right to jury trial."
Id. at___, 426 P.3d at 1256. Accordingly,
the trial court as the trier of fact is entitled to arrive at
the most probable inferences based upon the undisputed
evidence properly before it and grant the summary judgment
despite the possibility of conflicting inferences. This Court
freely reviews the entire record that was before the district
court to determine whether either side was entitled to
judgment as a matter of law and whether inferences drawn by
the district court are reasonably supported by the record.
Borley v. Smith, 149 Idaho 171, 176-77, 233 P.3d
102, 107-08 (2010) (internal quotation omitted). Thus, the
Court applies the summary judgment standard "when
reviewing the district court's order enforcing the
settlement agreement." Seward, 164 Idaho at___,
426 P.3d at 1256.
standard of review for an appellate court reviewing a trial
court's imposition of sanctions pursuant to I.R.C.P. 11
is one of abuse of discretion." Campbell v.
Kildew, 141 Idaho 640, 649-50, 115 P.3d 731, 740-41
(2005). The abuse of discretion standard also applies when we
review a district court's decision to reject an untimely
filing. See Marek v. Hecla, Ltd., 161 Idaho 211,
221, 384 P.3d 975, 985 (2016).
When this Court reviews an alleged abuse of discretion by a
trial court the sequence of inquiry requires consideration of
four essentials. Whether the trial court: (1)
correctly perceived the issue as one of discretion; (2) acted
within the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its
decision by the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421
P.3d 187, 194 (2018).
The district court did not err in enforcing the $32, 047.19
district court thoroughly reviewed the facts and the
applicable law, and concluded that the settlement agreement
was an enforceable contract:
[A]fter discussing the status of the case and the proposed
agreement with his attorney, Kosmann exercised his ultimate
authority as a client to settle these matters. Idaho R. Prof.
Conduct 1.2(a) and comment 1. Kosmann and his attorney knew
what had occurred in the meeting between Kosmann and Dinius
prior to agreeing to the settlement on the record. They had
an opportunity to disaffirm the agreement reached by Kosmann
and Dinius and/or to end the mediation without reaching a
settlement. Yet Kosmann chose not to walk away, and instead
agreed to the settlement he had reached with Dinius. The
Court has already found that the settlement agreement as
entered on the record is a valid and enforceable contract.
The facts and circumstances surrounding the meeting between
Kosmann and Dinius and subsequent opportunity for Kosmann to
discuss that meeting with his attorney do not render the
settlement agreement void for violation of public policy, and
the Court finds no basis to upset the settlement agreement
under these facts.
argues that the district court erred in applying contract law
principles to determine whether the settlement agreement was
enforceable, in deciding that he voluntarily agreed to the
$32, 047.19 settlement, and in declining to decide whether a
violation of Rule 4.2 ...