Opinion
FSTCV075005734S.
11-09-2012
Katherine J. KIDDER v. Randy READ et al.
UNPUBLISHED OPINION
KEVIN TIERNEY, Judge Trial Referee.
The court granted reargument pursuant to P.B. § 11-12(c) and both parties appeared on July 31, 2012. The plaintiff argued that: " By proceeding to trial, any alleged settlement that would have existed— which the defendants deny— was rescinded." (# 140.00, page 2.)
The court did not discuss rescission in its April 24, 2012 twelve-page Memorandum of Decision (# 137.00). In originally opposing the plaintiff's January 18, 2012 Motion to Enforce Settlement Agreement (# 134.00), the defendants had argued rescission and cited a Connecticut trial court decision in support of their opposition to enforcing any claimed settlement. Thus the defendants meet the requirements of a motion to reargue. " It also may be used to address ... claims of law that the [movant] claimed were not addressed by the court." Opoku v. Grant, 63 Conn.App. 686, 692 (2001).
The court will now address the defendants' claim that the plaintiff, by proceeding to trial, rescinded whatever settlement agreement that may have existed. This court's April 24, 2012 Memorandum of Decision (# 137.00) adequately recites the facts leading to the settlement and the efforts made by the plaintiff to thereafter bring this case to trial (# 137.00, page 2-4).
The defendants cites only one authority for its claim of rescission in their original opposition papers, their oral argument opposing the settlement enforcement motion, this Motion to Reargue and their oral argument on this Motion to Reargue: LaChappelle v. Southford Park, Superior Court judicial district at Waterbury, Docket Number 093577 (April 12, 1994, Sylvester, J.) [ 11 Conn. L. Rptr. 398]. The LaChappelle court noted that the settlement was reached on March 20, 1990 and thereafter both parties filed numerous pleadings, including an amended complaint, two separate answers, special defenses, a number of objections to discovery, a motion for stay and a motion for extension of time to respond to discovery. The latest of these motions was filed 27 months after the March 20, 1990 settlement. The LaChappelle decision does not mention the trial date but the decision is dated April 12, 1994, more than four years after the settlement. The court then concluded: " The defendant's continuation to file pleadings in this case after the plaintiff ‘ changed her mind’ about the settlement agreement indicates that the parties mutually assented to a rescission of the settlement agreement." No legal authority was cited in LaChappelle for this rescission finding.
In the instant case, the settlement was reached during the sixth time the case had been assigned for trial, on August 31, 2011. On that date the judge's clerk entered the reported " Settled not Withdrawn" order. These facts are noted in this court's April 24, 2012 Memorandum of Decision. After August 31, 2011, neither party filed any amendments to their pleadings or discovery motions or requests. The defendants filed nothing with the court between August 31, 2011 and January 18, 2012, the date the plaintiff filed her Motion to Enforce Settlement Agreement (# 134.00). After August 31, 2011 the plaintiff filed only one motion, a Motion for Continuance dated October 14, 2011 (# 133.00) in that period of time. The plaintiff therein requested an extension of time for the plaintiff to file a withdrawal of action since the plaintiff had not received an adequate response to the settlement from the defendants. In Motion # 133.00 the plaintiff requested an extension to November 18, 2011 for the plaintiff to file a withdrawal pursuant to the settlement. The court granted the extension to January 16, 2012 (# 133.86). The trial began on January 18, 2012 before the undersigned. Thus the facts herein stand in stark contrast to the aggressive pleadings filed by both parties in LaChappelle.
The defendants have furnished no authority that the efforts expended by the parties after August 2011 to prepare for trial is the equivalent of the aggressive pleadings filed by both parties in LaChappelle. The court notes that the parties must have already been prepared for trial as of August 2011 since that was the sixth trial date.
There is no evidence that there was a meeting of the minds of both parties that they agreed to a rescission. The LaChappelle court found sufficient facts to find a mutual assent to the rescission of the March 20, 1990 settlement agreement.
There was no inordinate delay in this case. At the August 2011 settlement, the plaintiff was granted until October to file a withdrawal. The plaintiff, not having received payment from the defendant, obtained from the court an extension to January 16, 2012, the week that the trial commenced (# 133.86). LaChappelle involved pleadings filed for over two years after the purported settlement with the issue not being resolved until over four years later by the trial courts' 1994 Memorandum of Decision denying the enforcement of a settlement reached in 1990.
The defendants have not established the elements for a court finding of rescission of the settlement agreement.
" Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract ... Restitution is [a]n equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred." (Citations omitted; internal quotation marks omitted.) Wallenta v. Moscowitz, 81 Conn.App. 213, 240-41, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).DeMattia v. Mauro, 86 Conn.App. 1, 11 (2004).
To prevail on a claim of rescission, the party must prove a legal or equitable basis for renouncing the contract and that the plaintiff restored or offered to restore the defendant to his former condition as nearly as possible. DeMattia v. Mauro, supra, 86 Conn.App. at 11.
" [a]s a matter of common law, a party to a contract ... may rescind that contract and avoid liability thereunder if that party's consent to the contract was procured either by the other party's fraudulent misrepresentations, or by the other party's nonfraudulent material misrepresentations." Munroe v. Great American Ins. Co., 234 Conn. 182, 188 n. 4, 661 A.2d 581 (1995). " A definite election to rescind a contract is final and operates as a waiver of any claim for damages for any breach of the contract." (Internal quotation marks omitted.) Duksa v. Middletown, 192 Conn. 191, 197, 472 A.2d 1 (1984). " Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused [her] to enter the contract ... Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract." (Citation omitted; internal quotation marks omitted.) Dorsey v. Mancuso, 23 Conn.App. 629, 635, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).Beckenstein v. Naier, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD-CV-08-5019254 S (November 4, 2010, Sheldon, J.).
The other issues raised by the defendants in oral argument on the Motion to Reargue have already been addressed in this court's April 24, 2012 Memorandum of Decision (# 137.00). " A motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." Opoku v. Grant, supra, 63 Conn.App. at 692-93.
The court having granted reargument, denies the relief requested therein.