MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO ENFORCE SETTLEMENT AGREEMENT

PELLEGRINO, JTR.

The Plaintiff, Samuel Koenig has moved this court to enforce a settlement agreement that he alleges was negotiated and agreed upon by the parties on August 28, 2008. On November 12, 2008, the parties presented evidence at a hearing concerning the plaintiff's motion. The plaintiff claims that in lieu of argument for his Application for Prejudgment Remedy the parties spent several hours on August 28, 2008, negotiating an oral settlement which they agreed to reduce to writing at a later date. The defendants oppose this motion claiming that the agreement the parties reached is unenforceable, as it was not "definite and certain" and there was not a meeting of the minds. After consideration of the testimony, the documentary evidence and the parties' arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is denied.

BACKGROUND

The plaintiff commenced this action by filing an application far a Temporary Restraining Order and Pre-Judgment Remedy (PJR) dated May 22, 2008 against the three defendant corporations, Middlebury Land Associates, LLC, Beckley Farms, LLC and CT Adult Condominiums, LLC. The seven-count complaint attached to the application alleged in counts one through six, respectively, that each defendant borrowed money from the plaintiff that was not repaid and that the defendants were unjustly enriched. In the seventh count the plaintiff alleged fraud as to the defendant CT Adult Condominiums.

On July 15, 2008, the defendants filed a Motion to Dismiss claiming that the court lacked subject matter jurisdiction in that the parties agreed to submit their controversy to an alternate forum, in this case a Bais Din. The court heard oral argument on this motion on July 16, 2008 and on July 23, 2008, by written memorandum denied the defendants' motion.

On July 24, 2008, the court sent notice to the parties informing them that a PJR hearing had been scheduled for August 12, 2008. This PJR hearing was rescheduled to August 28, 2008 on August 7, 2008. It was on August 28, 2008, that the parties in lieu of proceeding with a PJR hearing spent a good part of the day negotiating a settlement. The parties did not reduce their settlement to writing or place it on the record, but instead reported to the caseflow coordinator that a settlement was reached and that they would file a written stipulation.

On September 17, 2008, the plaintiff served a seven-count complaint dated September 16, 2008, on the defendants' attorney who accepted service on behalf of the defendants.

On September 19, 2008, the plaintiff filed this Motion to Enforce a Settlement Agreement, attaching the agreement which he sought to enforce as Plaintiff's Exhibit 1. The defendants filed a Motion in Opposition and the matter was assigned and heard by the undersigned on November 12, 2008.

The plaintiff, Samuel Koenig testified at the November 12, 2008 hearing that he reluctantly agreed to sit with the representative of the defendants, Nathan Kahn, on August 28, 2008. He testified that he asked Mr. Kahn whether he had authority from all of the defendants to enter into an agreement and was assured by Mr. Kahn that he did have this authority. Mr. Koenig testified that they came to an agreement after several hours of negotiations and that his lawyer reduced that agreement to writing the next day and forwarded it to the defendants' counsel. Mr. Koenig testified that the only change in the agreement was in paragraph seven which included a September payment that would be due when the agreement would be signed.

On cross-exam Mr. Koenig agreed that the agreement, was not the first draft of the agreement that he reviewed what was submitted to him from his attorney. Mr. Koenig also testified that although paragraph four of the agreement called for a personal guarantee of $25,000 from a David Kramer, not a party to the action, Mr. Kahn assured him that he could obtain this personal guarantee from Mr. Kramer.

Mr. Kahn testified on behalf of the defendants, stating that after he left the session on August 28, he realized that the mortgages that the defendants agreed to give to the plaintiff under the terms of the proposed agreement would have triggered a default on the existing mortgages. In addition he testified that he only agreed to attempt to get Mr. Kramer to personally guarantee a $25,000 obligation and that he was not able to get this guarantee from Mr. Kramer.

DISCUSSION

It is true as argued by the plaintiff that if the parties to a law suit agree to a settlement of their controversy prior to trial and that if there is a meeting of the minds the agreement is enforceable. "A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous"; Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); and when "the parties do not dispute the terms of the agreement." Id., 812. "Once reached, a settlement agreement cannot be repudiated by either party. Whether the parties in fact concluded a settlement agreement is determined by `the intention of the parties manifested by their words and acts.' Hess v. Dumouchel Paper Co., 154 Conn. 303, 347, [ 225 A.2d 797] (1966). The intention of the parties is a question of fact, and when that is ascertained it is conclusive. Ballard v. Asset Recovery Management Co., 30 Conn.App. 805, 809 [ 667 A.2d 1298, cert. denied, 236 Conn. 906, 670 A.2d 1306] (1996). A settlement agreement, freely bargained, is recognized as being upon the parties . . . In determining whether to enforce a settlement agreement, the intention of the parties is controlling and is the key consideration." (Citations omitted.) DAP Financial Management Co. v. Mor-Fam Electric, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0383308 (September 4, 1998, Silbert, J.), aff'd, 59 Conn.App. 92, 755 A.2d 925 (2000).

Unfortunately in this case this court does not find that there was a meeting of the minds or that the parties intended the agreement would conclude their controversy. "The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence . . . To form a valid binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to created an enforceable contract, each must be found to have been based on an identical understanding by the parties." (Internal quotation marks omitted.) Cheverie v. Ashcraft Gerel, 65 Conn.App. 425, 439, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001).

"[T]he trier of fact's assessment of the credibility of the witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, CT Page 18350 890 A.2d 622 (2006). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

The court accepts Mr. Kahn's testimony that all he could do was to try to talk Mr. Kramer into personally guaranteeing a financial obligation of a defendant. Further, the court cannot find that the understanding reached on August 28, at the courthouse was clear and unambiguous. The plaintiff's e-mail, submitted as Plaintiff's Exhibit 3, to defendants' counsel admits that he revised the stipulation previously sent to him after sixteen e-mails to his client plus a "couple of phone calls."

In addition the agreement made no provisions that once executed it would finalize the controversy by either entering judgment on the stipulation or exchanging general releases and withdrawal of action. Here the agreement was only intended to resolve the prejudgment remedy controversy and provided that it was "in lieu of proceeding with a hearing on Plaintiff's application for prejudgment remedy." "So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) LR Realty v. Connecticut National Bank, 53 Conn.App. 524, 535, 732 A.2d 181, cert. denied, 259 Conn. 901, 734 A.2d 984 (1999). While the plaintiff sought to have the agreement enforced, he at the same time filed a summons and complaint with allegations of fraud. If the court were to agree to enforce the agreement the law suit would still be open and viable and the plaintiff could proceed on his fraud claim.

There was no meeting of the minds on August 28, 2008, and as the plaintiff testified and his attorney argued, the reason that the agreement was not set on the record on that date was that it was "too detailed." In any event the court cannot find that the agreement/stipulation that the parties attempted to reach was clear and unambiguous. There was no understanding as to any conclusion of their controversy.

The plaintiff's motion to enforce the settlement agreement is denied.