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COURT OF APPEALS DECISION DATED AND RELEASED March 26, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2992
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
OTILA TREVINO,
Plaintiff-Appellant,
PRIMECARE,
Plaintiff,
v.
CITY OF MILWAUKEE,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Otila Trevino appeals from an order of the circuit
court dismissing her personal-injury action against the City of Milwaukee. On appeal, Trevino argues that her
acceptance of the City's settlement offer was not binding on her as it did not
meet the requirements of § 807.05, Stats.[1] She also argues that the trial court erred
in denying her motion to re-open the case.
We affirm.[2]
Trevino's suit against
the City was scheduled for trial on February 3, 1994. Trevino agreed to settle the matter. On January 31, 1994, the trial court was
advised of the settlement, dismissed the case and removed the action from its
calendar. No order of dismissal was
entered. On August 2, 1994, after
changing her mind about settling, Trevino brought a motion for a jury trial and
an order nullifying the oral settlement agreement, contending that the trial
court could not enforce the settlement because it did not meet the requirements
of § 807.05, Stats. The trial court denied Trevino's motion.
The appellate record is
sparse. In the course of its oral
decision denying Trevino's motion, the trial court recited:
According to court records this action
was set for trial by jury on February 3, 1994.
On January 31, 1994, the preceding Friday, this court was advised by
[the attorneys for the plaintiff and defendant] during a telephone conference
that this action was settled. The court
then removed the action from the calendar and dismissed the case.
On
March 10, 1994, [the plaintiff's attorney] contacted this court by letter to
state that the plaintiff had reconsidered her settlement with the City of
Milwaukee. [The plaintiff's attorney]
advised this court that the plaintiff had not signed a stipulation for
dismissal or a release with the City.
[The plaintiff's attorney] requested this matter be put back on the
calendar for a jury trial.
On
August 2, 1994, plaintiff brought this motion for an order for jury trial, and
an order nullifying the oral settlement agreement ....
....
At no time was the scheduling order
modified. In accordance with the
scheduling order, trial by jury was to be held on February 3, 1994. Neither party appeared on February 3,
1994. This court dismissed the case on
January 31, 1994, and the parties consented to the dismissal when they did not
appear in court on the day of the trial.
So the court, therefore, is not enforcing the settlement agreement,
which would mean that I would force the City to pay the $500, which I would
not, but rather this court is enforcing the scheduling order, and was prepared
to try the case on February 3, 1994 with a jury....
Neither
party controverts the trial court's recitation.
Trevino's first argument
misses the mark. The trial court did
not enforce the settlement agreement.
Rather, it enforced the scheduling order.
Trevino's second
argument is a rehash of her first argument.
She contends that the trial court erred when it denied her motion to
re-open and set a new trial date because there was no enforceable settlement
agreement between the parties. This argument does not address the real
issue: namely, whether the scheduling
order survived the earlier “dismissal,” which was not reduced to a written
order.[3] Accordingly, we decline to consider it. See State v. Gulrud,
140 Wis.2d 721, 730, 412 N.W.2d 139, 142–143 (Ct. App. 1987) (A reviewing court
will not consider undeveloped arguments.).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 807.05, Stats., provides:
Stipulations. No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under s. 807.13 or 967.08 and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.