Richard A. Mueller v. TL90108, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1440 Cir. Ct. No. 2017CV867

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

RICHARD A. MUELLER AND JOSEPH L. FORD, III,

PLAINTIFFS-RESPONDENTS,

V.

TL90108, LLC,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
KEVIN E. MARTENS, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Geenen, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1440

¶1 PER CURIAM. TL90108, LLC (“TL”) appeals from a circuit court
order refusing to enforce a settlement agreement with Richard A. Mueller and
Joseph L. Ford, III.1 We conclude that the circuit court properly refused to
enforce the settlement agreement, and affirm.2

BACKGROUND

¶2 This case involves a long and contentious dispute over the
ownership of a rare and expensive automobile. In short, in 2001, a late 1930’s
Talbot Lago car disappeared from a Milwaukee business. Subsequently, in 2015,
TL purchased a Talbot Lago from an international automobile broker. When TL
tried to obtain a title in Illinois, this triggered an alert on a stolen vehicle report.
Mueller and Ford, who claim to be the rightful owners of the car, sued TL for
replevin and a declaration of ownership.3

¶3 TL filed a motion to dismiss, which the circuit court granted. This
court reversed, and our supreme court affirmed with modifications, and remanded
for further proceedings. Mueller v. TL90108, LLC, 2018 WI App 52, ¶3, 383

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TL filed a petition for leave to appeal from a nonfinal order of the circuit court, which
we granted. See WIS. STAT. RULE § 809.50(3) (2021-22). All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.
2
By prior orders we allowed the parties to submit briefs and appendices under seal. The
sealed documents are hereby deemed unsealed only to the extent that they are quoted, referenced,
or described in this opinion. We also note that TL’s statement on oral argument and publication
requests that this opinion be sealed. TL does not cite any authority for this request. We do not
address arguments that are undeveloped or unsupported by legal citations. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
3
Mueller and Ford allege that the car TL purchased had been stolen from Roy Leiske.
Leiske passed away leaving Mueller the sole heir. Mueller subsequently sold part of his interest
in the car to Ford.

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Wis. 2d 740, 917 N.W.2d 551, aff’d as modified, 2020 WI 7, ¶26, 390 Wis. 2d 34,
938 N.W.2d 566.

¶4 Relevant to this appeal, on remand, a full-day mediation took place
on October 29, 2021, with former Magistrate Judge David E. Jones. At the
conclusion of the mediation, the parties signed a two-page Settlement-in-Principal
Term Sheet (“SIP”), which included a “Financial Terms” section and a “Releases
and Dismissal of Claims” section. In the “Releases and Dismissal of Claims”
section, the SIP included the following bullet points:

 The parties will negotiate and agree to the terms of
a final settlement agreement in good faith.

 The mediator will resolve any disputes involving
the final settlement agreement.

 The terms of the final settlement agreement will
include mutual confidentiality and non-
disparagement provisions.

 The only public statements that Ford and Mueller
on the one hand and TL on the other hand will make
in respect to their settlement are the following:
“We amicably resolved our dispute.”

 The parties agree that this Term Sheet contains all
material terms and is fully enforceable under [WIS.
STAT. §] 807.05.

Subsequently, Ford’s counsel filed a letter advising the court that the parties
agreed to settle the lawsuit.

¶5 In the weeks that followed, the parties exchanged drafts of various
settlement documents and participated in two additional mediation sessions. After
the second additional mediation session, Judge Jones asked the parties to submit
their proposed versions of the final settlement agreement and provide comments
on each other’s proposed documents.

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¶6 In May 2022, Judge Jones attempted to resolve the parties’
competing documents and gave the parties additional direction. On June 1, 2022,
Judge Jones provided the parties with his completed work on the settlement
agreement and related documents.

¶7 On June 7, 2022, Mueller and Ford advised TL that they would not
sign the final settlement documents. TL moved to enforce the settlement on two
grounds: (1) the SIP, standing alone, was fully enforceable; and (2) that Judge
Jones had the power to prepare the final settlement documents and the documents
he prepared were binding and enforceable. Mueller and Ford cross-moved to
declare the SIP unenforceable and invalidate the settlement documents.

¶8 After briefing and argument, on July 29, 2022, the circuit court
issued an oral ruling denying enforcement of the SIP. The circuit court found that
the parties intended the SIP to be a binding and enforceable settlement agreement.
The circuit court, however, found that the agreement was not in fact enforceable
because two material terms in the SIP—confidentiality and non-disparagement—
were indefinite. In its ruling, the circuit court explained that the case was not
“routine” or “run of the mill,” had a “tortured history,” and required more nuance
than a typical case. In addition, the circuit court found that Judge Jones lacked
authority to issue the settlement documents because the SIP gave him authority
only to resolve disputes with respect to the final settlement agreement, not any
disputes regarding the SIP or otherwise predating a final agreement. This appeal
follows.

DISCUSSION

¶9 On appeal, TL contends that the “confidentiality” and “non-
disparagement” terms were “sufficiently definite” and the SIP was enforceable. In

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addition, TL contends Judge Jones properly resolved the parties’ disputes and this
court should direct the parties to sign the documents he prepared.

¶10 In construing a settlement agreement, this court applies contract-
construction principles. Paul R. Ponfil Tr. v. Charmoli Holdings, LLC, 2019 WI
App 56, ¶16, 389 Wis. 2d 88, 935 N.W.2d 308. To be enforceable, a contract
“must be definite and certain as to its material terms and requirements[.]” Id., ¶18.
Thus, “vagueness or indefiniteness concerning a material term prevents the
creation of an enforceable contract.”4 Id. Whether a settlement agreement is
binding and enforceable is a question of law we decide de novo. Waite v. Easton-
White Creek Lions, Inc., 2006 WI App 19, ¶5, 289 Wis. 2d 100, 709 N.W.2d 88.

¶11 In this case, the SIP states that the parties agreed to include “mutual
confidentiality and non-disparagement provisions” in their final agreement. We
agree with the circuit court that these terms were indefinite, and as a result, the SIP
was not enforceable.

¶12 To start, the reference to “non-disparagement” is indefinite because
it does not provide any parameters for determining the scope or duration of its
application. There is no definition of who or what cannot be disparaged. For
example, it is not clear whether disparagement is limited to the parties or their
business interests.

¶13 Likewise, the reference to “confidentiality” is also indefinite. As
Mueller and Ford contend, the confidentiality provision does not specify whether

4
“An indefinite term is one that is not susceptible to any reasonable construction, even
after considering the surrounding circumstances.” Vohs v. Donovan, 2009 WI App 181, ¶15, 322
Wis. 2d 721, 777 N.W.2d 915.

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No. 2022AP1440

confidentiality was limited to the settlement or covered information beyond the
settlement. Moreover, there is no guidance regarding the duration of
confidentiality.

¶14 TL argues that the confidentiality provision is clarified by the
statement in the SIP that “[t]he only public statements” that Ford, Mueller, and TL
will make in respect to their settlement is “[w]e amicably resolved our dispute.”
This statement, however, only governs statements to the public, not non-public
disclosures.

¶15 TL also points to other documents outside of the SIP to define
confidentiality. If the SIP, however, had contemplated other documents to define
confidentiality, it would have specifically referenced or identified those
documents. Additionally, the need to consider other documents underscores that
the meaning of confidentiality is not clear from the SIP alone.

¶16 As the circuit court found, this case is similar to Ponfil Trust. Id.,
389 Wis. 2d 88, ¶1. In Ponfil Trust, during a mediation session, the parties
prepared and signed a one-page document captioned “Mediation Settlement
Agreement.” Id., ¶2. The document included a paragraph stating that the parties
“agree[d] to sign a separate substantive agreement covering such things as liability
& indemnity in usual form.” Id., ¶3 (brackets in original). Subsequently, the
parties were unable to reach an agreement on “such things as liability & indemnity
in usual form.” Id., ¶8. The plaintiff filed a motion seeking to compel
enforcement of the mediation agreement. Id., ¶9. The circuit court granted the
motion to enforce finding that the parties had entered into a binding agreement and
the case had been settled in full, but advised the parties to return to mediation to
work out the missing terms. Id., ¶11.

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¶17 On appeal, this court reversed, holding that there was not an
enforceable agreement because the “liability” and “indemnity” terms were
indefinite. Id., ¶¶20, 25. This court explained that:

Here, the parties agreed that a separate substantive
agreement would address liability and indemnity. That
never happened. The exchange of drafts between the
parties reveal fairly complex issues with varying
perspectives, making it clear that the parties have work
ahead of them on their respective liabilities and indemnities
associated with the transfer of property involving multiple
entities and past and future quarry operations.

Id., ¶22. As in Ponfil Trust where this court found there was no basis to
determine the meaning of the liability and indemnity terms, here, there was no
basis to determine the meaning of non-disparagement or confidentiality.5

¶18 Lastly, we address Judge Jones’ mediation authority. Mueller and
Ford contend that because the SIP was unenforceable for indefiniteness, “all of its
terms became void and ineffectual” and there was “never any valid provision
delegating authority to [Judge] Jones.” See Ehlinger v. Hauser, 2008 WI App
123, ¶28, 313 Wis. 2d 718, 758 N.W.2d 476 (“[T]he indefiniteness of an essential
term prevents the creation of an enforceable contract.”).

¶19 TL argues that the SIP does not need to “be sufficiently definite to
be independently enforceable because the [SIP] provides a mechanism (the
mediator resolving any disputes involving the final settlement agreement) to reach

5
Mueller and Ford also contend in the alternative that we should conclude that the “SIP
is an unenforceable preliminary agreement.” Because we conclude that the SIP was
unenforceable due to the indefiniteness of the confidentiality and non-disparagement terms, we
do not address this argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct.
App. 1989) (stating that “cases should be decided on the narrowest possible ground”).

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No. 2022AP1440

a binding agreement.” TL also argues that Judge Jones had “unfettered authority”
to resolve any drafting disputes, not only disputes arising from an executed
settlement agreement.

¶20 We disagree with TL. The SIP states that Judge Jones “will resolve
any disputes involving the final settlement agreement.” The SIP does not include
any language authorizing Judge Jones to resolve disputes about the SIP or cure
indefinite terms. Rather, as the circuit court found, the SIP only provides
Judge Jones with authority to resolve disputes about the final settlement agreement
itself, not disputes involving the creation or negotiation of the final settlement
agreement. Thus, we are not persuaded that the mediator-delegation language
renders the SIP enforceable or that Judge Jones had the authority to impose a final
settlement agreement on the parties.

¶21 Therefore, for all of the reasons stated above, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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