### COURT OF APPEALS DECISION DATED AND FILED June 11, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1440 Cir. Ct. No. 2017CV867 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

R ICHARD A. M UELLER AND J OSEPH L. F ORD , III,

P LAINTIFFS - R ESPONDENTS ,

V . TL90108, LLC,

D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).No. 2022AP1440

2 ¶ 1 PER CURIAM. TL90108 , LLC (“TL”) appeal s from a circuit court
order re fusing 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 l ong and contentious dispute over the ownership of a rare and expensive automobile. In s hort , 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 bro ker. 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

1 TL filed a petition for leave to appeal from a nonfinal order of the circuit court, which we granted. See W IS

. S TAT

. R ULE § 809.50(3) (2021

- 22). All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.

2 By prior ord ers 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 an d 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. Ap p. 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.No. 2022AP1440

3 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 2 9 , 2021 , with former Magistrate Judge David E. Jones . At the
conclusion of the mediation, the p arties signed a two

- page Settlement

- in

- Principal
Term Sheet (“SIP”) , which included a “ Financial Terms ” section and a “ R eleases
and D ismissal of C laims ” section. In the “ Releases and Dismissal of Claims ” section, the SIP include d the following bullet poin ts:

 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 f ollowing: “We amicably resolved our dispute.”

 The parties agree that this Term Sheet contains all material terms and is fully enforceable under [ W IS

. S TAT

. §] 807.05.
Subsequently , Ford’s counsel filed a letter advising the court that the parties
agree d 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.No. 2022AP1440

4 ¶ 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 w o uld 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 prep ared 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 t he SIP to be a binding and enforceable settle ment 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 cour t 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 agreem ent

. This appeal
follows.

DISCUSSION

¶ 9 On appeal, TL contends that the “confidentiality” and “non

dis p aragement” terms were “sufficiently definite” and the SIP was enforceable. InNo. 2022AP1440

5 addition , TL contends Judge Jones properly resolved th e parties’ disputes and this

c ourt should direct the parties to sign the documents he prepared

. ¶ 10 In construing a settlement agreement, this c ourt applies contract

construction principles. Paul R . Ponfil Tr. v . Charmoli Holdings, LLC , 2019 WI App 56, ¶16, 389 Wis. 2d 88, 93 5 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
creatio n 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 t his 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 T o 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 partie s or their
business interests

. ¶ 13 Likewise, the reference to “confidentiality” is also indefinite. As Mueller and Ford contend, the confidentiality provision does no t 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.No. 2022AP1440

6 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 confide ntiality provision is c larified 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

- p ublic
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 t hose 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, t his 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 substan tive 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 fil ed 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.No. 2022AP1440

7 ¶ 17 On appeal, t his c ourt reversed, holding that there was not an enforceable agreement because the “liability” and “indemnity” terms were indefinite

. Id. , ¶¶ 20 , 25

. Th is 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 fou nd 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. Mue ller 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 a lternative 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 o n the narrowest possible ground” ).No. 2022AP1440

8 a binding agreement.” TL also argues that Judge Jones had “unfettered authority” to resolve any drafting disputes, not only disputes ar ising 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 W IS

. S TAT

. R ULE 809.23(1)(b)5.