                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0485
                            Filed February 11, 2015


KIMBERLY SUSAN ANDERSEN and MICHAEL CURTIS ANDERSEN,
Individually and as Next Friends of HANNAH ANDERSEN AND CADEN
ANDERSEN, Minors,
       Plaintiffs-Appellants,

vs.

KAMLINE HIGHWAY MARKINGS, L.L.C., and DARRELL LEE HOCKING,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Carroll County, William C. Ostlund,

Judge.



      The plaintiffs appeal from an order by the district court finding the parties

entered into an agreement to settle the underlying lawsuit. AFFIRMED.




      Andrew L. LeGrant of LeGrant Law Firm, Urbandale, and Thomas J. Duff

of Duff Law Firm, P.L.C., Des Moines, for appellants.

      Thomas M. Braddy and Amy M. Locher of Locher, Pavelka, Dostal,

Braddy & Hammes, LLC, Council Bluffs and Omaha, Nebraska, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
                                          2


DOYLE, J.

       Kimberly Andersen and Michael Andersen, individually and as next friends

of Hannah Andersen and Caden Andersen, appeal from an order by the district

court finding they entered into an agreement to settle their underlying lawsuit

against Kamline Highway Markings, L.L.C., and Darrell Lee Hocking (collectively,

Kamline) stemming from injuries Kimberly sustained in a 2009 automobile

collision allegedly caused by Kamline. Because we conclude the district court

did not err in finding there was a binding settlement between the parties, we

affirm the court’s order granting Kamline’s motion to enforce settlement.

I.     Background Facts and Proceedings

       In 2011, the Andersens initiated a personal injury negligence action

against Kamline. On November 1, 2013, the parties mediated the case at the

offices of Des Moines attorney Steven Wandro, who served as the mediator.

The Andersens were present, represented by attorney Jeff Minnich, as well as

two Kamline representatives, represented by attorney Thomas Braddy.

       The mediation ended with the parties reaching a verbal agreement that

(1) Kamline was to pay the Andersens $57,500; (2) Kamline was to pay court

costs in an amount not to exceed $200; and (3) Kamline was to pay the cost of

the mediation. The mediation went into late afternoon and the mediator did not

have staff available to prepare a written statement memorializing the parties’

agreement. The mediator asked the parties to send him the written agreement

for his files once it had been drafted.

       The written agreement was drafted, but the Andersens ultimately refused

to sign it. With trial of Andersens’ suit scheduled to begin November 19, attorney
                                        3


Minnich, on behalf of the Andersens, filed a motion to continue trial. The motion

stated, in part:

              1. This was scheduled for a jury trial on November 19, 2013.
              2. The parties agreed to submit this matter to mediation with
       such mediation taking place on November 1, 2013.
              3. Plaintiff, Kimberly Andersen, verbally accepted the
       settlement offer made by defendants.
              4. Based on the undersigned’s belief that this matter was
       settled, the medical deposition scheduled for plaintiff’s physician
       was cancelled and cannot be rescheduled before the November 19,
       2013 trial.
              5. Subsequent to the mediation Kimberly Andersen informed
       the undersigned that she wished to recant her verbal acceptance of
       the settlement agreement. The undersigned recommended that
       she seek another attorney’s opinion regarding her recantation of
       the settlement agreement and to review her case in its entirety
       regarding its risks and benefits.
              6. The undersigned informed the Court and defense counsel
       that the plaintiff intended to recant her verbal acceptance of the
       agreement. An informal telephone conference was held by the
       Court, the undersigned and the defense counsel.
              7. The defense counsel indicated that the defense intended
       to file a Motion to Enforce the Settlement and also request
       sanctions.
              8. A hearing on a Motion to Enforce the Settlement is not
       anticipated to come before the Court before the scheduled trial
       date.
              9. Even if a hearing on the Motion to Enforce the Settlement
       can be scheduled before the trial date if Plaintiff’s verbal
       acceptance is set aside the deposition of Plaintiff’s treating
       physician would not be able to be rescheduled before the trial date.

The court granted the Andersens’ motion to continue.

       Kamline then filed a motion to enforce settlement and a motion for leave to

amend answer to assert settlement as an affirmative defense. A hearing was

held on the motions, during which Kamline offered testimony from mediator

Wandro, attorney Minnich, and Kamline representative Carol Reisinger. Kamline

also offered various exhibits to the court, including the mediation agreement,

several emails between the parties’ attorneys, and an affidavit of mediator
                                             4


Wandro.     The Andersens appeared pro se, and offered no evidence, but

Kimberly Andersen told the court, “There was not an agreement.”

       At the outset of the hearing, the district court approved Kamline’s request

to amend its answer to assert settlement as an affirmative defense. Following

the hearing, the district court entered an order finding “there is no genuine issue

of material fact and [Kamline is] entitled to judgment as a matter of law that the

parties entered into an enforceable settlement agreement.” The court ordered

the Andersens to pay sanctions to Kamline for attorney fees and to mediator

Wandro for the cost of the mediation and for his time associated with the

enforcement proceeding. The Andersens now appeal.

II.    Standard of Review

       “The district court has authority to enforce settlement agreements made in

a pending case.” Gilbride v. Trunnelle, 620 N.W.2d 244, 249 (Iowa 2000) (citing

Wende v. Orv Rocker Ford Lincoln Mercury, Inc., 530 N.W.2d 92, 94 (Iowa Ct.

App. 1995)). The district court may summarily enforce a settlement agreement

on motion by one of the parties when, as here, a party amends its pleadings to

assert settlement as an additional claim in the original lawsuit. Gilbride, 620

N.W.2d at 249 (citing Wende, 530 N.W.2d at 94).1

       As a remedy to enforce a settlement agreement, however, summary

judgment     is   proper    only   when     “[p]leadings,    depositions,    answers     to



1
  Issues regarding material facts surrounding a settlement agreement “may be presented
to the court or jury as an additional claim in the original action, or resolved by the court
or jury in a separate hearing.” Wende, 530 N.W.2d at 95. “Under either method, the
issue is most appropriately raised by first amending the pleadings to assert settlement
as a claim in the lawsuit. The issue may then be resolved by motion for summary
judgment or at trial.” Id. at 94 n.1 (citation omitted).
                                             5


interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3); see also

Wende, 530 N.W.2d at 94 (holding that, on appeal, the standards applicable to

summary judgment are applied in determining whether summary enforcement of

a settlement agreement is appropriate). If there are genuine issues of material

fact surrounding the settlement, the issue is not appropriate for summary

judgment, but rather must be resolved by a finder of fact. Wende, 530 N.W.2d at

94.

III.   Discussion

       The Andersens contend the district court erred in concluding no genuine

issues of material fact existed as to whether the parties entered into an

enforceable settlement agreement. Kamline had the initial burden to show no

issue of material fact existed. See Atlantic Veneer Corp. v. Sears, 232 N.W.2d

499, 504 (Iowa 1975) (noting the burden of proof concerning enforcement of a

settlement agreement is on the party alleging settlement).

       As noted above, Kamline presented testimony from three witness,

mediator Wandro, attorney Minnich, and Kamline representative Reisinger. 2

Kamline also offered various exhibits to the court, including the mediation

agreement, several emails between the parties’ attorneys, and an affidavit of

mediator Wandro.




2
 Reisinger, a field claim representative for Kamline’s insurer, testified with regard to the
costs incurred by Kamline after the mediation.
                                          6


       Wandro testified he served as the mediator in the Andersens’ case against

Kamline, “[t]he mediation took place at [his] offices in Des Moines” on November

1, and the mediation “ended late in the afternoon.” Wandro further testified there

was “[n]o doubt” in his mind that “[t]here was an agreement.”                Wandro

acknowledged no written settlement agreement was prepared that day. Wandro

stated, although it was his general practice as a mediator “to have some kind of

written document . . . which memorializes the agreement” created at the time of

the mediation, in this case he did not have staff available to prepare a written

statement due to lateness of the day when the mediation concluded, but “it was a

simple case” and “it was a pretty straightforward agreement.” Wandro testified

he asked the parties to send him the written settlement agreement for his files

once it had been drafted.

       Wandro further testified after the mediation concluded, he sent a follow-up

email to the parties’ attorneys with a copy of the mediation agreement. Exhibit H,

an email dated November 3 from Wandro to the parties’ attorneys was admitted

into evidence with no objection. That email stated, in relevant part, “[A]ttached is

the mediation agreement I promised to send you.             I am pleased that the

mediation was successful.      If there is anything else you need let me know.”

Kamline also introduced an affidavit of Wandro, which the court admitted over the

Andersens’ objection,3 which detailed Wandro’s report of the mediation as set

forth above.



3
 The Andersens objected to Wandro’s testimony and affidavit “pursuant to the mediation
privilege.” The district court properly admitted the evidence pursuant to Iowa Code
section 679C.107 (2013), which states, “A mediator may disclose . . . [w]hether the
                                          7


       Minnich, the Andersens’ attorney, testified he appeared on behalf of the

Andersens at the mediation on November 1 at Wandro’s office. Minnich testified

he had no doubt in his mind that a settlement was reached that day.

       In addition, Kamline offered a number of post-mediation emails between

the parties and Wandro discussing the settlement and Kimberly Andersen’s

wavering on whether to sign the agreement. The court also took judicial notice of

the Andersens’ motion to continue trial, set forth above, which further supported

a finding that an agreement was reached. Considering the evidence before the

court, we find no error in the court’s conclusion that Kamline met its initial burden

to show no issue of material fact existed as to whether an agreement was

reached.

       The burden shifted to the Andersens to set forth specific facts showing the

existence of a genuine issue of material fact. See K & W Elec., Inc. v. State, 712

N.W.2d 107, 112 (Iowa 2006) (“If the moving party has met its burden, the

resisting party must set forth specific facts showing that a genuine factual issue

exists.” (internal quotation marks omitted)). “A fact is material if it will affect the

outcome of the suit, given the applicable law.” Parish v. Jumpking, Inc., 719

N.W.2d 540, 543 (Iowa 2006). “An issue of fact is ‘genuine’ if the evidence is

such that a reasonable finder of fact could return a verdict or decision for the

nonmoving party.” Id.

       As the sole support of their claim, the Andersens point to the following

colloquy at the outset of the hearing:



mediation occurred or has terminated, whether a settlement was reached, and
attendance.” Iowa Code § 679C.107(2)(a).
                                           8


               COURT: So, before we go any further, I’m going to ask you
       one simple question. Do you deny that there was an agreement to
       settle this?
               A. [Kimberly Andersen]: There was not an agreement.
               COURT: Okay. That would be the material fact that the
       Court would be looking towards.

The Andersens offered no further statements to the court and submitted no

evidence for the court’s consideration.4

       A party cannot create a factual issue simply by stating that one exists.

See Humphries v. Trustees of the Methodist Episcopal Church of Cresco, Iowa,

566 N.W.2d 869, 872 (Iowa 1997). In other words, a party “may not rest upon

the mere allegations or denials in the pleadings, but the response, by affidavits or

as otherwise provided in this rule, must set forth specific facts showing that there

is a genuine issue for trial.” Iowa R. Civ. P. 1.981(5).

       Settlement agreements are contractual in nature, and need not be

reduced to writing to be enforceable. Wende, 530 N.W.2d at 95. Iowa courts

have long-recognized the authority of courts to enforce settlement agreements

and the law favoring settlement of controversies.          See Wright v. Scott, 410

N.W.2d 247, 249 (Iowa 1987); Wende, 530 N.W.2d at 94.

       Upon our review of the evidence before the district court, in the light most

favorable to the Andersens, we find no error in the court’s conclusion that

Kamline has showed the existence of a binding settlement agreement and the

Andersens failed to set forth specific facts showing the existence of a genuine

issue of material fact surrounding the agreement. We affirm the district court’s



4
 We proceed to the Andersens’ claim despite Kamline’s contention that this statement
by Kimberly Andersen was not “sworn testimony.”
                                       9


order granting Kamline’s motion to enforce settlement.

      AFFIRMED.
