Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2012-313

OCTOBER TERM, 2013

Lonnie Chester, Administrator of the Estate 

of Philomena Weingarten

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APPEALED FROM:

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} Superior Court, Orleans Unit,

 v. } Civil Division

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Albert J. Weingarten a/k/a Albert J. 

Von Weingarten and Mary Weingarten a/k/a 

Mary Von Weingarten

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}

}

DOCKET NO. 275-10-05 Oscv

Trial Judge: Robert R. Bent

In the above-entitled cause, the Clerk will enter:

Defendants appeal the superior court’s decision to enforce the parties’ settlement 

agreement and to dismiss the pending lawsuit upon defendants paying plaintiff the sum set forth 

in the agreement. We affirm.

Plaintiff is the grandson and administrator of the estate of Philomena Weingarten, who 

died in December 2001 at the age of ninety-eight. The parties have been embroiled in a decadelong dispute concerning plaintiff’s efforts to obtain an accounting of up to $250,000 of the 

estate’s assets allegedly controlled by defendants, one of the deceased’s six children and his 

wife, during the last few years of her life. In September 2005, the probate court granted 

plaintiff’s motion to compel defendant Albert Weingarten to turn over and disclose those assets.

When defendant failed to do so, plaintiff filed a lawsuit the next month in superior court alleging 

fraud or nondisclosure. Eventually, the case went to mediation.

At a January 24, 2012 status conference, the parties acknowledged that they had settled 

the case on November 4, 2011. The settlement agreement, handwritten by the mediator and 

signed by defendants and the parties’ attorneys, stated at the top “Case is Settled” and contained 

the following language: “Albert and Mary Weingarten will pay $50,000 to the Estate of 

Philomena Weingarten. There is no admission of fault—none whatsoever. All estate 

proceedings claims whatsoever are terminated with prejudice. This suit will be dismissed with 

prejudice. Full confidentiality only to the extent possible due to court procedure.” The parties 

reported at the January 24 status conference that after the agreement was signed they disagreed 

about the scope of the release. When defendants’ attorney mentioned that in an exchange of 

emails the mediator had indicated that he concurred with defendants’ position on the scope of the 

release, plaintiff’s attorney objected that those communications were confidential and privileged.

Defendants’ attorney stated his clients’ position on the status of the agreement as follows:
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On November 4th they wanted this done and they signed an 

agreement thinking it was done. Everybody left pleased that it was 

done. Within a week it was clear that it was not done because 

there was a dramatically different interpretation and they finally 

said forget it, it’s not done, we just need a trial date.

Reasoning that the parties had settled the case and that any dispute over the scope of the release 

would be resolved later if necessary, the court stated that in thirty days the case would be marked 

as dismissed with prejudice based on the settlement agreement unless the parties filed motions 

within that time period disputing that fact.

On February 21, 2012, plaintiff filed a motion to enforce the settlement agreement. The

following day, defendants’ attorney filed a motion to withdraw. On April 18, 2012, defendants’ 

new attorney filed a motion to set aside the settlement agreement. One week later, plaintiff filed 

several motions in response, including a motion to seal and strike defendants’ motion, arguing 

that the communications defendants sought to introduce in support of their motion were 

confidential and privileged under the Uniform Mediation Act, 12 V.S.A. §§ 5711-5723. One day 

later, on April 26, 2012, the superior court granted plaintiff’s motion to seal and strike, 

concluding that the motion and accompanying documents contained confidential and privileged 

communications. The court stated that it would “seal the motion and accompanying documents, 

to prohibit them from being requested as a public record,” but also ordered the court clerk to set 

a hearing on all concurrent motions, including the motion to set aside the settlement agreement.

On May 14, 2012, defendants filed a reply to plaintiff’s motion to seal and strike 

defendants’ motion to set aside the agreement. A hearing on pending motions was held on 

August 15, 2012. At the hearing, the parties debated the meaning of the disputed release 

provision and whether the emails proffered by defendants in support of their motion to set aside 

the agreement were privileged. Defendants argued that once a disagreement arose over the

release language, “the contract was no longer enforceable.” At that point, plaintiff conceded that 

defendants’ interpretation of the scope of the release was correct. The superior court stated that 

it would put in writing the conceded limited scope of the release. The court further stated that it 

considered the matter settled but would accept any evidence that defendants wanted to submit to 

show otherwise. Defendants’ attorney initially appeared to accept the court’s decision but at the 

end of the hearing argued that the settlement agreement was invalid as the result of the dispute 

reflected in the post-mediation communications and that the disagreement evidenced in those 

communications was not reconciled within a reasonable period of time. The court indicated that 

it would deny defendants’ motion to set aside the settlement agreement. Two days later, the 

court issued an entry order stating that, in light of plaintiff’s concession that defendants’ 

restrictive interpretation of the release language was correct, the settlement agreement is 

“otherwise enforceable.”

Defendants appeal that order enforcing the settlement agreement, arguing that the 

superior court erred in concluding that the settlement agreement was enforceable, given that 

there was no meeting of the minds between the parties regarding an essential provision of the 

agreement—the scope of the release—at the time the parties signed the agreement.* While their 

 

*

 In their reply brief, defendants for the first time cite other “ambiguities” in the 

settlement agreement, including the absence of the date of the settlement and a date for paying 

the $50,000, and no explanations for the meaning of the word “claims” or the last sentence in the 
3

appeal was pending, defendants also asked this Court to vacate the superior court’s order sealing 

their motion to set aside the settlement agreement, which allegedly contained privileged 

communications. We agreed to consider that motion along with the merits of the appeal.

Upon review of the record, we concur with the superior court that the parties entered into 

an enforceable settlement agreement. It is well-established that settlement agreements are 

governed by contract law. Rogers v. Rogers, 135 Vt. 111, 112 (1977); see Cheverie v. Geisser, 

783 So. 2d 1115, 1118 (Fla. Dist. Ct. App. 2001) (“Settlement agreements are interpreted and 

governed by contract law.”). Although the law favors settlement agreements, it is a basic tenet 

of contract law that, for a contract to be effective as a legal document, “there must be mutual 

manifestations of assent or a ‘meeting of the minds’ on all essential particulars” at the point of 

agreement. Evans v. Forte, 135 Vt. 306, 309 (1977); see Quenneville v. Buttolph, 2003 VT 82, 

¶ 16, 175 Vt. 444 (“[W]hile a binding agreement need not contain each and every contractual 

term, it must contain all of the material and essential terms.”); Starr Farm Beach Campowners 

Ass’n v. Boylan, 174 Vt. 503, 505 (2002) (mem.) (“An enforceable contract must demonstrate a 

meeting of the minds of the parties: an offer by one of them and an acceptance of such offer by 

the other.”); Vaughan v. Tetzlaff, 141 Vt. 150, 154 (1982) (“The time for measuring a ‘meeting 

of the minds’ is the point of agreement, not performance.”).

Nevertheless, a contract is not necessarily unenforceable for lack of a “meeting of the 

minds” simply because the parties to the contract had differing interpretations of what a 

particular contract provision meant, even if the disputed provision is later deemed ambiguous 

and subject to court review to resolve that ambiguity. 

In this case, the parties signed a written settlement agreement that set forth the essential 

terms of the agreement—defendants were to give the estate $50,000 with no admission of fault in 

exchange for dismissal of the lawsuit and an end to claims and proceedings involving the estate. 

See Sisters & Brothers Inv. Grp. v. Vt. Nat’l Bank, 172 Vt. 539, 543 (2001) (mem.) (rejecting 

no-meeting-of-the-minds argument where it was undisputed that “each party assented to the 

same written contract” and party seeking to set aside purchase-and-sale agreement intended to be 

bound by the contract “although he may have expressed an interpretation of the contract different 

from” other party); cf. Lavigne v. Green, 23 P.3d 515, 517, 520 (Wash. Ct. App. 2001) 

(concluding that there was genuine issue of fact as to whether absence of any contract terms 

other than agreement to settle case for $100,000 made the agreement unenforceable). There was 

a later disagreement between the parties as to the scope of the release effectuated by the 

agreement, although the court ultimately did not need to resolve that disagreement because 

plaintiff eventually conceded that defendants’ interpretation of the provision was correct. Even 

if plaintiff did not make this concession, however, the dispute over the scope of the release 

reflected in the written and signed agreement did not signal the absence of a contract, or 

insufficient meeting of the minds to bind the parties to their written agreement. The court could 

have resolved any ambiguity in the meaning of the agreement without declaring that the 

 

agreement. We decline to consider these arguments, which were raised for the first time in 

defendants’ reply brief, see Bigelow v. Dep’t of Taxes, 163 Vt. 33, 37 (1994) (stating that 

“issues not briefed in the appellant’s or the appellee’s original briefs may not be raised for the 

first time in a reply brief”). In any event, the absence of these dates and explanations do not 

demonstrate the lack of a meeting of the minds so as to make the agreement unenforceable, as 

explained in our discussion above.
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agreement lacked the essential terms of an enforceable agreement. We accordingly affirm the 

trial court’s order enforcing the settlement agreement.

This brings us to defendants’ motion filed during the pendency of this appeal to vacate 

the superior court’s order regarding plaintiff’s motion to seal and strike defendants’ motion to set 

aside the settlement agreement. In an April 26, 2012 order, the superior court determined that 

post-settlement email communications between the parties and mediator cited in defendants’ 

motion to set aside the settlement agreement were privileged from disclosure under 12 V.S.A. § 

5715(a) (“A mediation communication is privileged and is not subject to discovery or admissible 

in evidence in a proceeding.”) and 1 V.S.A. § 317(c)(4) (exempting from public disclosure 

records that are privileged under statutory or common law) Defendants argue that we cannot 

resolve the merits of this appeal without deciding whether the email communications are in fact 

privileged and therefore inadmissible under § 5715(a), given their contention that the emails 

support their argument that there was no meeting of the minds as to the scope of the release at 

the time the parties signed the settlement agreement. We disagree. There is no proffer from

defendants other than that the emails will show that shortly after the agreement was signed 

defendants and plaintiff expressed a fundamental disagreement as to the scope of the release. 

Defendants’ previous attorney had also stated that in the email exchanges the mediator agreed 

with defendants’ position on the scope of the release.

Accepting these facts as true does not change our analysis. We know that the parties had 

different interpretations of the scope of the release. Nevertheless, the parties acknowledged that 

they intended to settle the case by signing a written agreement that contained all of the essential 

terms of the settlement. Indeed, the mediator himself handwrote the agreement expressly stating 

that the parties had settled. The fact that at the time of the agreement the parties may have had 

divergent ideas about the scope of the release reflected in the agreement does not demonstrate 

that the agreement is unenforceable. If the parties had persisted in their disagreement over the 

scope of the release, the emails may have been relevant to resolve any ambiguity in the disputed 

provision. Because we conclude that the emails are not, in any event, relevant to the outcome of 

this appeal, we decline to address defendants’ motion..

Affirmed.

 

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice