This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0221

                                Maria F. Olson, et al.,
                                    Appellants,

                                          vs.

                               James Scott Kent, et al.
                                    Defendants,

                           Peoples National Bank of Mora,
                                    Respondent.

                             Filed December 19, 2016
                       Affirmed in part and reversed in part
                                Rodenberg, Judge

                             Isanti County District Court
                               File No. 30-CV-13-716

Frederic W. Knaak, Craig J. Beuning, Wayne B. Holstad, Holstad & Knaak, PLC, St. Paul,
Minnesota (for appellants Maria F. Olson, Shannon Olson, and SSO, LLC)

Vincent D. Louwagie, Steven C. Kerbaugh, Daniel R. Hall, Peter J. McElligott, Anthony
Ostlund Baer & Louwagie P.A., Minneapolis, Minnesota (for respondent Peoples National
Bank of Mora)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Hooten, Judge.
                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellants Maria F. Olson, Shannon Olson, and SSO, LLC, appeal from a judgment

in favor of respondent Neighborhood National Bank f/k/a People’s National Bank of Mora

for $150,000 plus attorney fees for claimed breach of the parties’ earlier settlement

agreement.1 Appellants also challenge the district court’s order denying appellant Maria

Olson’s motion to vacate a settlement agreement that contained a conditional confession

of judgment for that amount. We affirm in part and reverse in part.

                                        FACTS

      In   2010,   appellants   conveyed    two    properties   to    MNSilverCare,   Inc.

(MNSilverCare), and James Scott Kent. The purchases were financed, in part, through

loans provided by respondent. The sale of one of the properties included seller financing,

and a promissory note for $164,500 was executed by MNSilverCare and James Scott Kent.

At closing, the parties to the promissory note signed a Standby Creditor’s Agreement,

acknowledging MNSilverCare’s $164,500 debt to appellants and that the agreement was

entered into “[t]o induce [respondent] to make loans” to MNSilverCare. The agreement

included terms requiring that appellants take no action to enforce MNSilverCare’s

obligation to pay appellants without respondent’s approval, and that all future loans made

by appellants to MNSilverCare would be subject to the terms of the Standby Creditor’s

Agreement.


1
 The settlement agreement was not signed by the parties, but it was placed into the record
and accepted by the parties in open court, as discussed below.

                                            2
      In 2013, appellants sued Kent and MNSilverCare for breach of contract and unjust

enrichment. Kent and MNSilverCare asserted an affirmative defense that the claims were

barred by the Standby Creditor’s Agreement.

      In February 2014, appellants amended their complaint to include a claim against

respondent for tortious interference with contract and for a declaratory judgment that the

Standby Creditor’s Agreement and the $164,500 promissory note were void. Appellants

claimed that they did not loan MNSilverCare and Kent the $164,500 evidenced in the

promissory note, but rather, Kent and MNSilverCare executed a promissory note for

$458,000. Respondent asserted counterclaims for breach of contract, unjust enrichment,

and fraud concerning appellants’ claim that they did not provide the loan described in the

Standby Creditor’s Agreement. Respondent asserted that, because of the fraudulent

execution of the Standby Creditor’s Agreement and the undisclosed promissory note for

$458,000, respondent had loaned funds for substantially more than the property was worth,

which caused MNSilverCare to default and eventually lose the property in foreclosure.

Respondent’s fraud claim was dismissed.

      Appellants settled their claims against Kent and MNSilverCare, and those claims

were dismissed with prejudice. Appellants’ claims against respondent were dismissed by

summary judgment. Respondent’s claims against appellants for breach of contract and

unjust enrichment then remained before the district court as the only unresolved claims.

      In March 2015, respondent and appellants reached a settlement agreement. The

parties submitted an electronic copy of the agreement to the district court and confirmed

the fact of settlement and the accuracy of the written agreement in open court. In response


                                            3
to questioning by the district court, the parties agreed that no promises were made other

than those laid out in the written agreement and that the agreement was to be a “full and

final settlement” of the matter.

       The agreement provided, in pertinent part:

               4.      Maria Olson, Shannon Olson, Shannon’s Exteriors and
               SSO, LLC, on behalf of themselves and on behalf of any entity
               which they, or any of them, control, make a full release of all
               claims, known or unknown, through date of agreement against
               [respondent], its agents, employees, attorneys, or others acting
               on its behalf except that Maria Olson and Shannon Olson do
               not release any claim they may have against the law firm of
               Hinshaw & Culbertson LLP for acting with an alleged conflict
               of interest. This is intended to be the broadest release allowed
               by law.

The agreement included a covenant that appellants not sue any of the entities released

“based on any facts or events that arose on or before date of agreement.” The agreement

also stated:

               6.     Maria Olson, Shannon Olson, Shannon’s exteriors and
               SSO, LLC confess judgment against Neighborhood National
               Bank in the amount of $150,000. Judgment may be entered . . .
               if Maria Olson, Shannon Olson, Shannon’s Exteriors and/or
               SSO, LLC, or any entity which they, or any of them, control,
               commence any complaint or claim against the bank . . . based
               on any facts or events that arose on or before date of this
               agreement, including but not limited to any claim released or
               any claim covered by the covenant not to sue above.

(Emphasis added.)

       The parties later discussed adding an exception to the agreement concerning

possible claims by appellants against the law firm of Lindberg & McKinnis. Respondent

refused to make this additional exception to the settlement agreement and release.



                                              4
      Appellant Maria Olson claims to have become aware of an admonition from the

Minnesota Office of Lawyers Professional Responsibility “for [Dwight McKinnis’s]

professional misconduct in the SBA ARC loan matter,” which she claims resulted in

damage to her.2 In April 2015, she sued Dwight McKinnis, an attorney who had worked

for respondent in 2011, claiming that McKinnis had represented her in a financial matter

while simultaneously representing respondent to collect on appellants’ SBA ARC loan.

      Upon learning of Maria Olson’s lawsuit against McKinnis, respondent moved the

district court to enforce the settlement agreement and to have judgment against appellants

for $150,000 under paragraph six of the settlement agreement. Maria Olson, pro se,

opposed the motion to enforce the settlement agreement, claiming that she did not breach

its terms because McKinnis was not referenced specifically in the agreement and because

she was suing him strictly in his capacity as her attorney, and not in his capacity as

respondent’s attorney. In a memorandum of law opposing respondent’s motion to enforce

the settlement agreement and enter judgment, Maria Olson also argued:

             The Settlement Agreement does not provide the remedy the
             bank is asking for. If [the district court] interprets the
             Settlement Agreement to blanket every attorney the bank has
             used, and that Maria Olson cannot bring action against
             Mr. McKinnis in his capacity as her attorney, this would still
             not provide the bank a right to obtain judgment of $150,000
             against the Olsons. Paragraph 6 of the [settlement agreement]
             states specifically a judgment for $150,000 may be entered IF
             the Olsons commence any complaint or claim against the
             Bank. The Olsons have not brought a claim against the Bank.



2
 Whether there was such an admonition, and of what it consisted if there was one, is not
before us in this appeal.

                                            5
       In August 2015, the district court granted respondent’s motion to enforce the

settlement agreement and entered judgment against appellants in the amount of $150,000.

The district court found that the claim against McKinnis arose out of events that occurred

while he was acting on respondent’s behalf and before the date of the settlement agreement.

The district court determined that Maria Olson’s claims against McKinnis fall “within the

very broad language” of paragraph four of the settlement agreement, and the agreement

contained a covenant that appellants not sue persons or entities released by the settlement

agreement. Stating that “[t]he remedy for breach of the settlement agreement is entry of

judgment in the amount of $150,000.00,” the district court concluded that “the Bank is

entitled to that remedy.”

       In October 2015, Maria Olson moved the district court to vacate the settlement

agreement and grant relief from the August 20, 2015 judgment under Minn. R. Civ. P.

60.02, alleging fraud and newly discovered evidence.         She claimed that respondent

committed fraud on the court and appellants by failing to disclose documents during

discovery and by making false statements in a related case that was settled as part of the

settlement agreement. The related case was commenced in 2013 and concerned the

existence of easements over Lot 2, a property that had not been included in the original

conveyances. No discovery was undertaken in the related case.

       In her motion to vacate the settlement agreement, Maria Olson argued that

appellants were induced to enter into the settlement agreement by respondent’s fraud in

“failing to disclose material information and claiming false damages.” She argued that

respondent failed to disclose e-mails in response to discovery requests in this case and that


                                             6
the e-mails showed that, at the time of the settlement agreement, respondent was aware that

title to Lot 2 and the easements over it were not included in the conveyances. She argued

that, had appellants known of respondent’s awareness, they would not have settled.

       In an order filed on December 7, 2015, the district court denied the motion to vacate

the settlement agreement. The district court found that Maria Olson had not exercised due

diligence in finding the evidence now claimed to be newly discovered, and that she did not

demonstrate fraud because she did not rely on the alleged misrepresentations made by

respondent in the related case.

       In a separate order filed on December 7, 2015, and on respondent’s motion, the

district court awarded respondent $4,528 in attorney fees incurred in enforcing the

settlement agreement and obtaining the judgment against appellants for $150,000 based on

the claims made against McKinnis in violation of the covenant not to sue.

       This appeal followed.3

                                     DECISION

I.     Denial of Motion to Vacate Settlement Agreement

       Appellants challenge the district court’s order denying Maria Olson’s motion to

vacate the settlement agreement under Minn. R. Civ. P. 60.02. They argue that the district




3
 In a special-term order, we construed the appeal as taken from the judgments entered on
August 20, 2015 and December 7, 2015, and the December 7, 2015 order denying Maria
Olson’s motion to vacate the settlement agreement.

                                             7
court abused its discretion in refusing to vacate the settlement agreement based on newly

discovered evidence and fraudulent concealment of documents.4

       “Settlement of disputes without litigation is highly favored, and such settlements

will not be lightly set aside by the courts.” Johnson v. St. Paul Ins. Cos., 

 (Minn. 1981) (citation omitted). “[V]acating a stipulation of settlement rests largely

within the discretion of the trial court, and the court’s action in that regard will not be

reversed unless it be shown that the court acted in such an arbitrary manner as to frustrate

justice.” 

 (quotation omitted). A court abuses its discretion under rule 60.02 when its

decision is “against logic and facts on the record,” is “arbitrary or capricious,” or is based

on “an erroneous view of the law.” Posey v. Fossen, 

 (Minn. App.

2006) (quotation omitted).

       The Minnesota Rules of Civil Procedure provide as follows:

              On motion and upon such terms as are just, the court may
              relieve a party or the party’s legal representatives from a final
              judgment . . . order, or proceeding . . . for the following reasons:
              ...



4
  Respondent requests that we disregard portions of appellants’ brief that fail to adequately
cite the record. Each statement of a material fact in a brief “shall be accompanied by a
reference to the record.” Minn. R. Civ. App. P. 128.02, subd. 1(c); Minn. R. Civ. App. P.
128.03. Failure to comply with the rules requiring citations to the record “can diminish a
brief’s persuasiveness, lead to non-consideration of an issue, or dismissal of an appeal.”
Cole v. Star Tribune, 

 (Minn. App. 1998) (citations omitted). We
may decline to strike portions of a brief if the critical facts are supported by documents in
the record. Hecker v. Hecker, 

, 681 n.2 (Minn. App. 1996), aff’d, 

 (Minn. 1997). Although appellants did not use consistent or accurate citations
in accordance with the applicable appellate rules, the material facts necessary for our
decision are supported by documents in the record. We therefore deny respondent’s
request.

                                               8
              (b) Newly discovered evidence which by due diligence could
              not have been discovered in time to move for a new trial
              pursuant to Rule 59.03;
              (c) Fraud (whether heretofore denominated intrinsic or
              extrinsic), misrepresentation, or other misconduct of an
              adverse party . . . .

Minn. R. Civ. P. 60.02. The party seeking to vacate a settlement has the burden of showing

sufficient grounds for relief. Johnson, 

. See City of Barnum v. Sabri,

 (Minn. App. 2003) (“The burden of proof in a proceeding under Rule

60.02 is on the party seeking relief.”).

       A. Newly discovered evidence

       Appellants argue that newly discovered e-mails demonstrate that respondent knew

that Lot 2 was not included in the conveyance of the other properties at the time it sued for

a declaratory judgment that easements existed over Lot 2. Appellants claim they settled

this and the related case because they were unaware that respondent possessed evidence

that would have defeated respondent’s claims.

       Rule 60.02(b) allows relief for newly discovered evidence that “by the exercise of

reasonable diligence,” could not have been discovered before. Frazier v. Burlington N.

Santa Fe Corp., 

 (Minn. 2012), as modified (Apr. 19, 2012)

(quotations omitted). In order to establish the exercise of reasonable diligence, a party

must show that he employed “reasonable investigation efforts to find and produce the

evidence.” Turner v. Suggs, 

 (Minn. App. 2002) (quotation omitted).

Reasonable diligence “requires the use of available discovery tools as well as reasonable

investigation efforts.” Regents of Univ. of Minn. v. Med. Inc., 

 (Minn.



                                             

), review denied (Minn. July 15, 2897). The newly discovered evidence must be

relevant and admissible, and likely to have an effect on the result; the evidence must not

be merely collateral, impeaching, or cumulative. Turner, 

. If a party

fails to prove any of the required factors for newly discovered evidence, then rule 60.02

relief is inappropriate. Frazier, 

.

       The district court found that appellants did not conduct any discovery in the related

case involving Lot 2 and easements, and that relief under rule 60.02(b) was therefore

unavailable. Appellants did not seek discovery in the related case involving the allegations

that the conveyances included easements over Lot 2. Nor is it clear that the discovery

requests in this case would have resulted in the discovery of the e-mails because the

discovery requests sought information about the “claims and defenses in this lawsuit.” This

case was about the execution of the $164,500 promissory note and the Standby Creditor’s

Agreement. The record does not include respondent’s discovery responses, nor does it

appear that appellants moved to compel additional discovery before entering into the

settlement agreement.

       Appellants have not demonstrated that the district court abused its discretion in

denying relief under rule 60.02(b). They have failed to demonstrate that they could not

have discovered the information they now claim to be newly discovered before they entered

into the settlement agreement by the exercise of reasonable diligence, or that they exercised

“reasonable investigation efforts to find and produce the evidence.” Turner, 

; see also Frazier, 

. The burden of showing sufficient grounds to

vacate the settlement agreement is on appellants, and failure to show sufficient grounds


                                             10
bars relief under Minn. R. Civ. P. 60.02(b). Frazier, 

; Johnson, 

. On this record, the district court did not base its decision on an erroneous

view of the facts or the law in finding that appellants did not exercise due diligence in

discovering the e-mails in question through use of available discovery tools before entering

into the settlement agreement. It therefore acted within its discretion in declining to vacate

the settlement agreement.

       B. Fraud by an adverse party

       Appellants argue that, because respondent fraudulently concealed material facts

subject to the discovery requests in the current case, appellants were not aware that

respondent’s claims regarding Lot 2 and the easements were baseless in the other case, and

they were therefore fraudulently induced to settle because of the pending lawsuit.

       The district court may vacate an order or judgment that is attributable to an adverse

party’s fraud, misrepresentation, or misconduct. Minn. R. Civ. P. 60.02(c). Fraud by an

adverse party may justify relief, if the party alleging fraud establishes by clear and

convincing evidence that the “adverse party engaged in fraud or other misconduct which

prevented it from fully and fairly presenting its case.” Regents of Univ. of Minn., 

. The district court finds facts, weighs evidence, and assesses credibility to

decide whether fraud occurred. J.L.B. v. T.E.B., 

 (Minn. App. 1991),

review denied (Minn. Oct. 11, 1991). If fraud occurred, the district court should vacate the

judgment only if the fraud affected the central issue rather than a collateral issue. Turner,

.




                                             11
       The district court examined the elements of fraud in relation to Maria Olson’s

argument that respondent concealed evidence that it knew Lot 2 was not included in the

conveyances and that respondent’s claims in the related case were therefore false. The

district court found that respondent’s claims in the related case were not false

representations, but were instead claims made in litigation. It also found that Maria Olson

did not rely on the “representations” in any event, and that she specifically denied

respondent’s claims. The district court also found that appellants had not conducted any

discovery to investigate respondent’s claims before settling the case. The burden to

demonstrate fraud is on the party seeking relief. Sabri, 

. We see no

error in the district court’s determination that appellants did not produce clear and

convincing evidence of fraud inducing them to settle. Regents of Univ. of Minn., 

. The record supports the district court’s findings and the district court acted

within its discretion in denying relief under Minn. R. Civ. P. 60.02(c).

       C. Public Policy

       Appellants argue that the settlement agreement violates public policy because it

released an attorney, an officer of the court, from liability. Generally, a reviewing court

will only consider issues that the record shows were presented to and considered by the

district court. Thiele v. Stich, 

 (Minn. 1988). Appellants did not make

this argument before the district court, and we therefore decline to address it.




                                             12
II.    Order Granting Motion to Enforce Settlement Agreement and Enter
       Judgment

       Appellants also argue that Maria Olson did not breach the terms of the settlement

agreement and that the settlement agreement was ambiguous. Respondent argues that

appellants forfeited their arguments that the settlement agreement is ambiguous because

they did not raise this argument to the district court. For the reasons set forth below, we

conclude that the settlement agreement is unambiguous, but that the district court erred in

granting respondent judgment under the plain language of paragraph six.

       “Settlement of claims is encouraged as a matter of public policy.” Voicestream

Minneapolis, Inc. v. RPC Props., Inc., 

 (Minn. 2008). A settlement

agreement is a contract. Dykes v. Sukup Mfg. Co., 

 (Minn. 2010).

If the language is clear and unambiguous, the district court may enforce the settlement

agreement as a matter of law, giving the language its plain and ordinary meaning. 

. But if the agreement is ambiguous and the parties dispute material facts, the district

court must conduct an evidentiary hearing. Voicestream, 

.

       In Voicestream, the supreme court stated that a district court shall treat a motion to

enforce a settlement agreement “as it would a motion for summary judgment.” 

.

A contract may be summarily enforced if it is clear and unambiguous, 

 but “[s]ummary

judgment is inappropriate where terms of a contract are at issue and those terms are

ambiguous or uncertain,” Bank Midwest, Minn., Iowa, N.A. v. Lipetzky, 

 (Minn. 2004). On appeal from a grant of summary judgment, we review de novo

whether there are any genuine issues of material fact and whether the district court erred in



                                             13
its application of the law. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 

 (Minn. 2010). Construction of an unambiguous contract is a question of

law, which we review de novo. Horodenski v. Lyndale Green Townhome Ass’n, 

 (Minn. App. 2011).

       Appellants argue that the lawsuit commenced by Maria Olson against the attorney

McKinnis was “not part of the agreement” and that the lawsuit therefore “cannot support

[respondent’s] motion for enforcement or the sanctions imposed by the district court.”

       A. Breach of the Settlement Agreement

       The district court found that Maria Olson’s lawsuit against McKinnis was “within

the very broad language” of paragraph four of the settlement agreement and therefore

violated paragraph five. Paragraph five provided that appellants, on behalf of themselves,

agreed not to sue “any of the entities released hereby, based on any facts or events that

arose on or before date of agreement, including but not limited to any claims released.”

       “Generally, a release must manifest the intent to release, discharge, or relinquish a

right, claim, or privilege by a person in whom the claim exists to a person who seeks to be

released.” Curtis v. Altria Grp., Inc., 

 (Minn. 2012). “A general

release of all claims, known and unknown, will be enforced by the court if the intent is

clearly expressed.” 

 We agree with the district court that the parties agreed to the

“broadest release allowed by law” which included a release of all known and unknown

claims against respondent’s “agents, employees, attorneys, or others acting on its behalf.”

The parties agreed that no additional promises were made and that the agreement was to

be a “full and final settlement.” The district court correctly identified the objective intent


                                             14
of the parties under paragraphs four and five to release one another and respondent’s

“agents, employees, [and] attorneys,” from all claims arising out of the events that occurred

before the date of the settlement agreement.

       Appellants contend that respondent “must establish that the appellants intended to

include attorney McKinnis’s conflict of interest ethical violation as a term of the

settlement.” The settlement agreement unambiguously includes the release of all known

and unknown claims against lawyers who had performed work on behalf of respondent

before the date of the settlement agreement. The release includes attorney McKinnis,

despite that appellants may not have known of their potential claims for malpractice at the

time the agreement was consummated, because the release unambiguously includes “all

claims, known or unknown.” To the extent that Maria Olson was somehow mistaken as to

whether McKinnis was included within the release, “[u]nilateral mistake as to the scope of

a release will not avoid its plain language; appellants must come forward with evidence

that there was a mutual mistake regarding the intended scope of the releases or that

respondents induced the mistake in some way.” Goldberger v. Kaplan, Strangis & Kaplan,

P.A., 

 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995).

Appellants have failed to show that there was a mutual mistake as to the scope of the

release.

       Further, to the extent that any ambiguity could have existed as to which attorneys

were released by the settlement agreement, the well-recognized rule of expressio unius est

exclusio alterius applies here. The maxim provides that “the expression of specific things

in a contract implies the exclusion of all not expressed.” Maher v. All Nation Ins. Co., 340


                                             

, 680 (Minn. App. 1983) (citing Anderson v. Twin City Rapid Transit Co., 

, 

 (1957)), review denied (Minn. Apr. 25, 1984). The

inclusion of the law firm of Hinshaw & Culbertson LLP within paragraph four as an

exception to the general release of respondent’s “attorneys” indicates the parties’ intent to

exclude that firm, but no others, from the release of claims.

       B. The $150,000 judgment against appellants

       Although the settlement agreement unambiguously releases appellants’ claims

against McKinnis arising from his work for respondent, the agreement does not entitle

respondent to judgment against appellants in the amount of $150,000 under paragraph six.

The district court appears to have reasoned that the settlement agreement called for the

entry against appellants for any breach of paragraphs four and five of the agreement. That

is not what paragraph six provides. It provides that respondent is entitled to judgment if

the appellants, in either their individual capacities or collectively, “commence any

complaint or claim against the bank . . . based on any facts or events that arose on or before

date of the agreement, including but not limited to any claim released or any claim covered

by the covenant not to sue.” (Emphasis added.) Giving the words within paragraph six

their plain and ordinary meaning, the settlement agreement entitles respondent to a

$150,000 judgment if appellants “commence any complaint or claim against the bank.”

(Emphasis added.) Maria Olson did not sue “the bank.” She sued McKinnis.

       While Maria Olson’s suit against McKinnis was barred by the release language of

paragraphs four and five of the settlement agreement, the district court erred in its

conclusion that the remedy for the “breach of the settlement agreement is entry of judgment


                                             16
in the amount of $150,000.” Because paragraphs four, five, and six of the settlement

agreement are unambiguous and do not call for the entry of judgment against appellants

for any breach of the covenant not to sue, but are limited to breach of the covenant not to

sue “the bank,” we do not consider appellants’ additional arguments regarding their intent

and interpretation of the release at the time of entering the settlement agreement. The plain

language of paragraph six does not entitle respondent to the judgment awarded by the

district court. We therefore reverse that judgment.

       C. The award of attorney fees

       Having determined that the district court erred in entering judgment in the amount

of $150,000, we next consider whether the judgment for attorney fees was also in error.

       “Attorney fees are recoverable if specifically authorized by contract or statute.”

Horodenski, 

 (quotation omitted). We review a district court’s award

or denial of attorney fees for abuse of discretion. Northfield Care Ctr., Inc. v. Anderson,

 (Minn. App. 2006). Construction of an unambiguous contract is a

question of law, which we review de novo. Horodenski, 

.

       Paragraph 22 of the settlement agreement states, “If the [sic] either party breaches

any provision of this agreement, they shall pay the . . . other party its attorneys’ fees for

enforcing this agreement, in addition to any damages.” The district court’s order granting

respondent’s motion to enforce the settlement agreement provided that the district court

would also grant reasonable attorney fees incurred in bringing the motion. Respondent

moved the court for an award of $4,528 in attorney fees for the “work that [respondent’s

counsel] performed for the benefit of [respondent] in preparing and bringing the motion”


                                             17
and costs associated with the motion. The district court granted the request for attorney

fees on December 7, 2015, and entered judgment.

       Respondent was awarded attorney fees on the basis that it expended money in

bringing the motion to enforce the agreement and to have judgment entered against

appellants for Maria Olson’s breach of the settlement agreement. However, and as

discussed above concerning the plain language of the settlement agreement, respondent

was not entitled to the $150,000 judgment on the basis of Maria Olson’s suit against

McKinnis. Therefore an award of attorney fees was unwarranted under paragraph 22. The

plain language of the settlement agreement leads us to conclude that the award of attorney

fees was in error. We therefore reverse the judgment against appellants for attorney fees.

III.   Conclusion

       In sum, the district court acted within its discretion in denying appellants’ motion

to vacate the settlement agreement. That agreement unambiguously released all claims

against respondent’s agents, employees, and attorneys for actions taken on respondent’s

behalf before the parties entered into the settlement agreement. The covenant not to sue,

likewise, is unambiguous and was breached by Maria Olson’s lawsuit against McKinnis.

Her claims against McKinnis were unambiguously settled and released. However, the

district court erred in concluding that the remedy for that breach was effectuating the

confession of judgment under paragraph six. Paragraph six, giving the words their plain

and ordinary meaning, provides that judgment of $150,000 would be entered if appellants,

either individually or collectively, bring a claim or complaint against respondent, “the

bank.” Because the McKinnis suit was not a claim against the bank, entry of judgment was


                                            18
improper. Likewise, the award of attorney fees for fees expended in entering judgment

was in error, respondent having had no right to the relief it sought.

       Affirmed in part and reversed in part.




                                             19