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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-099

OCTOBER TERM, 2013

John J. Uckele } APPEALED FROM:

}

} Superior Court, Grand Isle Unit,

 v. } Civil Division

}

}

Johana Harris, Thomas Harris and Allstate 

Insurance

} DOCKET NO. 71-7-09 Gicv

Trial Judge: Dennis R. Pearson

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

Plaintiff appeals a decision of the superior court, civil division, denying his request to set 

aside a settlement agreement and reinstate his personal injury action. We affirm.

The following facts are undisputed. In July 2009, plaintiff, who was born in January 

1919, filed a lawsuit alleging that he suffered personal injuries as the result of an automobile 

accident that had occurred in July 2006. Plaintiff, who was represented by counsel, sued the 

driver of the vehicle that struck him and the owner of the vehicle, the driver’s grandmother, for 

negligent entrustment. A mediation session was scheduled for May 6, 2011. Plaintiff attended 

the session with his wife and attorney. The session was held at the law office of the attorney of 

one of the defendants’ insurers and lasted five or six hours. At the conclusion of the session, 

plaintiff signed a settlement agreement that awarded him $15,000 in exchange for signing a 

general release discharging his claims against defendants and agreeing to dismissal of his lawsuit 

with prejudice. Three days later, the parties’ attorneys signed a stipulation for dismissal. The 

trial court ordered dismissal of the lawsuit on May 12, 2011.

On May 26, 2011, plaintiff filed a pro se motion asking the court to declare the settlement 

null and void. The court treated the motion as seeking relief under Vermont Rule of Civil 

Procedure 60(b) and held an evidentiary hearing on the motion on October 25, 2012. See 

Bidgood v. Town of Cavendish, 2005 VT 64, 179 Vt. 530 (mem.) (“A settlement agreement that 

is incorporated into a final judgment can be disturbed pursuant only to the procedures set forth in 

Vermont Rule of Civil Procedure 60(b).”). At the hearing, plaintiff was represented by counsel, 

who presented the testimony of an expert witness, plaintiff, and plaintiff’s wife. The first 

witness, a non-practicing physician who had never treated plaintiff, opined that plaintiff would 

not have understood what was going on at the mediation session because of the medication he 

was taking for a cold—a cough suppressant syrup containing codeine. Plaintiff’s wife testified, 

among other things, that plaintiff had been ill in the days leading up to the hearing, that he was 

very tired on the day of the hearing due to the medication he had been taking for the illness, and 

that he could not hear what was going on during the session. Plaintiff testified, among other 

things, that on the day of the mediation session he had a “bad cold,” that he wanted to leave early 
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when he was offered only $1000 to settle the case, that his wife and attorney encouraged him to 

stay, that his attorney had told him the session would last for only an hour when it in fact it went 

on for over five hours, that he had nothing to eat for lunch, and that the mediator told him he 

would be better off settling the case. 

Following the hearing, the superior court issued a decision denying plaintiff’s Rule 60(b)

motion, concluding that the evidence demonstrated that plaintiff had signed the settlement 

agreement and general release voluntarily “with more than adequate understanding of the terms 

and consequences thereof.” The court found that plaintiff’s decision to ask the court to set aside 

the agreement was the result of his belief that he had settled the case for too little money, which 

is an insufficient basis to grant relief under Rule 60(b).

On appeal, plaintiff argues that: (1) the court erred by concluding that the agreement did 

not result from duress, coercion, misrepresentation, mutual mistake, or unconscionability; (2) the 

court failed to follow Vermont policy and statutory law giving special status to vulnerable adults; 

and (3) the mediation did not follow some of the requirements of Vermont Rule of Civil 

Procedure 16.3 concerning alternative dispute resolution, and therefore the results of mediation 

could not be enforced.

The second and third arguments are raised for the first time on appeal, and thus we 

decline to address them. See Bull v. Pinkham Eng’g Assocs., Inc., 170 Vt. 450, 459 (2000) 

(“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”). At 

no point during the Rule 60(b) proceedings did plaintiff claim that he was entitled to relief from 

judgment because the mediation proceedings failed to follow the applicable rules; nor did he 

claim that he was a vulnerable adult or argue that he had a particular status in the context of these 

proceedings due to his being a vulnerable adult.

Before addressing plaintiff’s principal argument on appeal, we address two motions that 

we indicated would be considered along with the merits of the appeal. In the first motion, 

defendants ask this Court to strike specified portions of plaintiff’s printed case containing 

materials that were not part of the record below. We grant that motion insofar as plaintiff has 

failed to show that the challenged portions of the printed case contain documents that were part 

of the record below. See Hoover v. Hoover, 171 Vt. 256, 258 (2000) (stating that “our review is 

confined to the record and evidence adduced at trial”). In the second motion, plaintiff asks that 

he be allowed to file a “supplemental” brief filed after defendants filed their briefs. It appears 

that the most significant difference between the initial and supplemental briefs is that plaintiff 

added cites in the record to support his arguments. We grant this motion, which is also 

unopposed.

Plaintiff’s principal argument is that the record does not support the court’s denial of his 

motion to set aside the settlement agreement and reinstate his personal injury action. Public 

policy favors the voluntary settlement of disputes, and thus courts will generally enforce such 

agreements unless the moving party proves duress, coercion, or any of the other grounds 

sufficient to overturn a judgment pursuant to Rule 60(b). See Putnam v. Putnam, 166 Vt. 108, 

113 (1996) (discussing standard for overturning settlement agreements in context of divorce 

proceedings). In this case, upon review of the record, we conclude that the evidence supports the 

court’s conclusion that plaintiff failed to demonstrate that he is entitled to relief from judgment 

based on coercion, duress, or any of the other bases for overturning a judgment. See Lyddy v. 

Lyddy, 173 Vt. 493, 497 (2001) (mem.) (“A trial court’s decision on a Rule 60(b) motion is 
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committed to the sound discretion of the court and will stand on review unless the record 

indicates that such discretion was abused.”).

In essence, plaintiff argues that we should presume he signed the settlement agreement 

under duress or as the result of coercion sufficient to set aside the agreement based on the 

following facts: (1) he was ninety-two years old at the time of the mediation session; (2) he was 

sick that day and taking a cough syrup containing codeine; (3) he had trouble hearing what was 

going on; (4) he wanted to leave but his wife and attorney encouraged him to stay; (5) the 

mediator was very proactive in encouraging him to settle; and (6) he wasn’t offered, and didn’t 

eat, any lunch during a five-to-six-hour session that his attorney told him would last only one 

hour. Notwithstanding these facts, however, the superior court concluded, and the record 

supports the conclusion, that plaintiff understood the terms of the settlement agreement and 

voluntarily signed it. Plaintiff himself testified that he considered the initial offer of $1000 to be 

a joke and wanted to walk out at that point. Plaintiff’s wife testified that plaintiff was unhappy 

over the terms of the agreement but signed it anyway because he was just too tired to fight 

anymore. Moreover, she testified that on the ride home from the mediation session plaintiff was 

unhappy because he did not receive as much money as he had hoped to get. Thus, the evidence 

supported the trial court’s conclusion that although the medication containing codeine may have 

left plaintiff more tired than he otherwise would have been, there was no persuasive evidence 

that he settled the agreement as the result of duress or coercion. Rather, as the court concluded, 

the evidence indicates that this was a case of “buyer’s remorse,” where, in retrospect, plaintiff 

regretted having settled the case for less than he had hoped to receive. In short, the evidence 

supports the findings, which support the trial court’s conclusion that plaintiff knowingly and 

voluntarily signed the settlement agreement.

Affirmed.

 

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice