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Bethke v. Airport Mini Storage7/14/2005
{ } Appellant Walter Bethke appeals pro se the trial court's order affirming an oral settlement agreement between him and appellees. He assigns four errors for our review.
{ } Having reviewed the record and pertinent law, we affirm the decision of the trial court.
{ } The record reveals the history of the instant appeal stems from three suits that arose out of an alleged dog bite incident, which occurred on November 5, 1997. The apposite facts follow.
{ } On November 5, 1999, Bethke, pro se, filed suit against John F. Ullrich, Linda L. Ullrich, Airport Mini Storage, the Ullrich Family Limited Partnership and eight other defendants in Case No. 395828. Bethke alleged that on November 5, 1997, while a business invitee of Airport Mini Storage, the owners' dog bit him, and as a result of the dog bite, he sustained physical injuries. Further, because the rabies status of the dog remained unknown, he claimed to have sustained psychiatric and psychological injuries, including severe post traumatic stress disorder. On September 6, 2000, Bethke voluntarily dismissed the case without prejudice.
{ } On September 4, 2001, again proceeding pro se, Bethke refiled the action against Jonathan and Kim Ullrich and nine other defendants in Case No. 447865. In this case, the court granted summary judgment to nine of the defendants. Bethke did not appeal any of the trial court's orders.
{ } On September 3, 2003, Bethke re-filed the action against Jonathan and Kim Ullrich and four other defendants who had been dismissed by summary judgment in the previous case. In this case, the court dismissed the four others on February 2, 2004. At a case management conference on December 19, 2003, the trial court ordered Bethke to produce all expert reports by April 5, 2004, and informed the parties that trial was scheduled for August 4, 2004.
{ } On April 8, 2004, Bethke motioned the court for an extension of time to provide the expert reports. The trial court granted the extension to May 8, 2004. On July 28, 2004, Bethke requested another extension of time to provide the expert reports, and also moved for a continuance of the trial, which the trial court denied.
{ } On the day of trial, Bethke appeared with motions to continue the trial and to change counsel. However, Jonathan and Kim Ullrich explained that an oral agreement had been reached to settle the case for $5,000, and urged the trial court to enforce the agreement. Bethke's counsel explained that he initiated settlement discussions with Jonathan and Kim Ullrich, and they did reach a settlement which he thought was fair. After the agreement was reached, Bethke's counsel telephoned Bethke at least five times and left voice mail messages, but received no response.
{ } Ultimately, the trial court ordered the enforcement of the settlement agreement and dismissed the case. Bethke now appeals.
ENFORCEMENT OF AGREEMENT
{ } We address Bethke's four assigned errors together because they all address the propriety of enforcing the settlement agreement. Bethke essentially argues the trial court erred in enforcing a settlement agreement, which he did not approve. We disagree.
{ } We review a trial court's decision to grant or deny enforcement of a settlement agreement under an abuse of discretion standard. The term discretion itself involves the idea of choice, of an exercise of will, of a determination made between competing considerations. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgme
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